Brown v. Kagan, 2019 ONSC 4868

NEWMARKET COURT FILE NO.: FC-19-58093-00

DATE: 20190820

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robin Allan McLean Brown

Applicant

– and –

Jennifer Laura Kagan (Brown)

Respondent

Self-represented

R. Karrass, Counsel for the Respondent

Heard: In Writing

COSTS ENDORSEMENT

MCGEE J.

1In my endorsement of July 4, 2019 I dismissed Mr. Brown’s June 18, 2019 14B Motion for lack of service, and prohibited him from bringing any further 14B Motions without my leave. Mr. Karrass was to respond to the 14B Motion with which he was served (to transfer the Milton file to Newmarket) and to make any request for costs on the dismissed 14B Motion by July 26, 2019. Mr. Brown then had until August 9, 2019 to respond to the claim for costs.

The 14B Motion that Mr. Brown Did Serve

2On consent, order to issue requesting the Central West Superior Court of Justice (Milton) located at 491 Steeles Avenue, Milton to transfer the file, Brown v. Kagan (Brown) Court file #38795-16 to the Central East Superior Court of Justice (Newmarket) located at 50 Eagle Street West, Newmarket.

The 14B Motion that Mr. Brown Did Not Serve

3Dr. Kagan seeks $9,491.10 in costs on this 14B Motion. She cites at some length the history of her personal and litigation experiences with Mr. Brown because she believes it necessary to a full appreciation of his deceit. She also proposes that $9,491.10 is necessary because a lesser amount might not act as a sufficient deterrent.

4Mr. Brown takes the position that no costs be ordered.

5I agree with his comment that Dr. Kagan’s costs submissions go well beyond the intended scope of costs submissions, particularly for costs on a 14B Motion on which there was no attendance. Mr. Brown then sets out his response submissions that go well beyond the intended scope of costs submissions, particularly for costs on a 14B Motion on which there was no attendance.

6For the reasons set out below, Mr. Brown shall forthwith pay costs to Dr. Kagan of $2,500 plus HST for a total of $2,825.

Reasons for Costs Decision

7Dr. Kagan’s Bill of Costs sets out $8,915.70 in fees and $575.40 in disbursements, each inclusive of HST. Because of the manner in which these figures are presented, I cannot determine which expenses relate exclusively to this 14B Motion and which fees and expenses relate to the ongoing litigation steps during the same period.

8I do accept that this was no ordinary 14B Motion. When I first reviewed the (what would turn out to be unserved) 14B Motion I requested the judicial assistant to contact Mr. Karrass’ office to learn why a response had not been filed. A lack of response was not consistent with Mr. Karrass’ high level of professionalism observed in earlier attendances.

9Judicial assistants do not keep time dockets, so I am not aware of whether the conversation with Mr. Karrass totalled the 0.8 set out in his Bill of Costs. But it is not unreasonable to conclude that it would have taken some time to sort out what had happened. Court systems do not anticipate this level of duplicity. The presumption, and the obligation of litigants is honesty. When dishonesty is discovered, one must independently ascertain the truth before turning to the misfeasor.

10I have looked carefully at Mr. Brown’s submissions to find an explanation for his attempted fraud on the court. There is none. There are a series of “whatabouts” that accuse Mr. Karrass of delay in the preparation of an earlier order for financial disclosure and of wrong doing in a subsequent proceeding entirely unrelated to this 14B. Mr. Brown then concludes that he is the reasonable litigant by not seeking costs against Dr. Kagan resulting from her unnecessarily long costs submissions on this 14B Motion.

11It is unnecessary to fully review the law of costs in this short decision. Each party is at this stage a seasoned litigator. Mr. Brown has a history of costs awarded against him.

12In this decision I will focus on the second purpose of a costs award,¹ being the policy of using costs to discourage unreasonable litigation conduct. I cannot employ the first purpose: to reimburse a successful litigant, because Dr. Kagan has overreached in her request for $9,491.10. This is not a reasonable amount to spend on responding to a 14B Motion – even a duplicitous one that required a period of investigation.

13In considering Dr. Kagan’s Bill of Costs, the factors in Rule 24(13) and the reasonable and proportionate costs of the fees and disbursements necessary to this 14B Motion, I assess a full recovery to be in the range of $2,000.

14In addition to this amount, I am prepared to award a further amount in excess of a full recovery. I do so to admonish Mr. Brown in addition to my prior Order prohibiting him from bringing any further 14B Motion without my leave. His actions regarding this 14B Motion were wrongful.

15Order to issue that Mr. Brown shall forthwith pay costs to Dr. Kagan of $2,500 plus HST for a total of $2,825.

Footnotes

1. 1Most recently restated by the Ontario Court of Appeal in Mattina v. Mattina, 2018 ONCA 867, 2018 CarswellOnt 17838.