Court File and Parties

COURT FILE NO.: CV-20-650568 DATE: 20210311 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: KMM LAWYERS PROFESSIONAL CORPORATION and MIGUNA MIGUNA, Applicants AND: KAZEMBE & ASSOCIATES PROFESSIONAL CORPORATION, COURTNEY A. KAZEMBE AND 134082 ONTARIO INC, Respondents

BEFORE: Paul B. Schabas J.

COUNSEL: Miguna Miguna for the Applicants Gary Caplan for the Respondents

HEARD: January 11, 2021

Costs ENDORSEMENT

[1] On January 12, 2021 I dismissed a motion for contempt brought by the applicants: KMM Lawyers v Kazembe & Associates, 2021 ONSC 267. The respondents now seek costs of that motion on a substantial indemnity basis in the total amount of $5,954.28.

[2] The applicants object to any award of costs, asserting that the respondents failed to obtain orders that they also sought, that the motion was due to the respondents’ failure to comply with court orders and a settlement agreement, and that the respondents had improperly filed material just before the hearing to which the applicants were unable to respond.

[3] The amount sought is modest given the volume of materials and the issues at stake. This is due to the fact that the respondents did much of the legal work themselves and only retained counsel to argue the motion.

[4] Pursuant to the Courts of Justice Act, s. 131(1), I have broad discretion when determining the issue of costs. The overall objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Counsel for Ontario. Rule 57.01(1) of the Rules of Civil Procedure sets out factors to be considered. I must also consider the principle of proportionality (R. 1.01(1.1)), and that the indemnity principle must be balanced against promoting access to justice.

[5] As my Reasons on the contempt motion note, this is an acrimonious dispute which does not put either party in a good light. Although I dismissed the contempt motion, I did not vindicate the actions of Mr. Kazembe. Indeed, I commented that if the allegations against him are established then he may well face sanction by the Court.

[6] In the circumstances, I am not inclined to award costs at all. I am concerned that a costs award will simply cause more tension and perhaps embolden further conduct that will inflame the situation and, perhaps, result in more motions which may inappropriately seek to have the court supervise the details of the break up of this law partnership.

[7] Finally, in closing I note that Mr. Miguna has recently written to me again complaining of the late filing of the affidavit prior to the contempt motion, which he says was done deliberately, in breach of the Rules of Civil Procedure, and that he did not have an opportunity to respond to it. He asks me to therefore “correct or clarify” my ruling. In my view no such response is necessary. I did not rely on that additional evidence in reaching my conclusion that the contempt motion should be dismissed. As I stated at para. 25, “ the real complaint here relates to the breach of a settlement agreement,” and “that it is not appropriate to use the contempt power in these circumstances.”

Paul B. Schabas J Date: March 11, 2021