Burcevski v. Ambrozic, 2011 ABQB 7

Court of Queen ’ s Bench of Alberta Citation: Burcevski v. Ambrozic, 2011 ABQB 7 Date: 20110105 Docket: FL01 07838 Registry: Calgary Between: Dimitri Burcevski and Voodoo Enterprises Ltd. Plaintiffs - and - Monyca Ambrozic Defendant _______________________________________________________ Memorandum of Judgment of the Honourable Madam Justice C.A. Kent _______________________________________________________ [ 1 ] I granted an application by the Defendant to dismiss this claim as an abuse of process.

The plaintiff Dimitri Burcevski’s (“Burcevski”) claim sought to set aside a previous judgment in favour Monyca Ambrozic (“Ambrozic”) based on alleged fraud, perjury and non-disclosure by Ambrozic. That judgment was given in 2006, the decision was upheld in part by the Alberta Court of Appeal and leave to the Supreme Court of Canada was denied. The plaintiff had provided proposed evidence which he intended on using to prove this claim.

The argument of Ambrozic was that the issue was res judicata , and that the two relevant exceptions to the doctrine of res judicata , fraud and perjury, could not be made out because the proposed new evidence did not meet with the test required to consider new evidence. [ 2 ] Ambrozic now seeks costs on a solicitor and client basis for the application. The bill of costs presented to me including disbursements is $140,100.31 up to September, 2010 and an additional $20,000.00 approximately since that time.

[ 3 ] Ambrozic argues that she is entitled to solicitor and client costs for two reasons. First this was a claim in fraud and solicitor and client costs are routinely awarded in circumstances where allegations of fraud and improper conduct are unfounded and unjustly made ( Toronto Dominion Bank v. Leigh Instruments Ltd. ( Trustee ) [1998] O. J. No. 4221 ).

The second basis for claiming solicitor and client costs is that this lawsuit was vexatious and conduct like this should be discouraged. [ 4 ] Burcevski filed a lengthy brief, much of which dealt with why my decision was wrong and why the claim against Ambrozic was a good claim. During argument on the costs application, I directed that counsel for Burcevski limit his comments to those areas which in my view were relevant to the issue of costs.

Those were his general argument with respect to the law of costs, whether or not this was a case where solicitor and client costs should be awarded and his submissions with respect to the case raising a novel point of law. [ 5 ] Dealing first with the issue that this case dealt with a novel point of law, I disagree with Burcevski’s submissions. I acknowledge that in determining what test ought to be applied to the allegations of fraud and perjury against Ms. Ambrozic, I was required to consider law from this jurisdiction and from other jurisdictions.

Whether or not I properly applied that law is a question that will be answered by the Court of Appeal. The point was not novel. [ 6 ] The second argument that Burcevski makes is that Ambrozic was not successful in defeating the claim of fraud and perjury, but was successful on an application to strike out the claim as an abuse of process. I agree with that submission. The law with respect to awarding solicitor and client costs is restricted to where a fraud claim is made unsuccessfully.

The application which was made was no different than an application to strike out a claim because it disclosed no cause of action or for any other legitimate reason. Even though the action was grounded in fraud and perjury, Ambrozic was successful in striking out the claim because it was an abuse of process, not because fraud had not been proven. [ 7 ] There is however one additional fact here which I am bound to take into consideration in exercising my discretion with respect to costs. Ambrozic was awarded costs in the previous proceedings in the amount of $312,000.00.

Of that award only $85,000.00 has been paid, as a requirement before Burcevski could continue his appeals. That refusal to pay costs coupled with the fact that this action was an abuse of process means that Ambrozic is entitled to significantly more than party-party costs. Serial attempts to re-litigate a case must be discouraged.

Re-litigation punishes the successful party because he or she is required to continue to pay legal costs to protect their position. [ 8 ] Given all the circumstances, in my view an appropriate award of costs including disbursements is $100,000.00. [ 9 ] Burcevski applies for a stay of enforcement in the judgment and costs. The stay is denied. I found the action to be an abuse of process. It is now four years since the original judgment was obtained.

Ambrozic is entitled to recover. [ 10 ] Ambrozic applies for an order pursuant to section 191 (1) of The Land Titles Act directing the Registrar to remove the lis pendens so that Ambrozic can execute on her judgment. I will grant that order but stay it until January 21, 2011 to allow Burcevski to apply to the Court of Appeal for a further stay if he wishes. Heard on the 21 st day of December, 2010 to the 22 nd day of December, 2010. Dated at the City of Calgary, Alberta this 5 th day of January, 2011.

C.A. Kent J.C.Q.B.A. Appearances: Ben R. Plumer Clark & Associates for the Plaintiffs Blair R. Carbert and Kelly Colborne Stone Carbert Waite Wells LLP for the Defendants