Lozinik v Sutherland, 2012 ABQB 583

Court of Queen ’ s Bench of Alberta Citation: Lozinik v Sutherland, 2012 ABQB 583 Date: 20120925 Docket: 1101 16208 Registry: Calgary Between: Daniel T. Lozinik Plaintiff - and - Cindy Sutherland, Doug Geeraert and Ray Patel Defendants Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision Regarding Costs of the Honourable Mr. Justice C. M.

Jones _______________________________________________________ [ 1 ] This matter was heard before me on June 8, 2012 as a special chambers application. There was both an application and a cross-application. Mr. Lozinik ("Lozinik") sought various forms of relief against the Defendants Doug Geeraert ("Geeraert"), Ray Patel

("Patel") and Cindy Sutherland ("Sutherland"). Lozinik's application, filed February 29, 2012, requested the following:

a) summary judgment;

b) double costs (Rule 4.29(1));

c) recognition that his claim is a "common law claim to be adjudicated in a common law de jure Court";

d) an order directing the Defendants to complete a Request for Disclosure in a format which he has constructed or be found to be in contempt of court, with

summary judgment granted against them;

e) an order waiving the dispute resolution process (Rule 4.16(2));

f) an order criminally charging the Defendants with criminal fraud;

g) payment of punitive damages in the amount of $180,000;

h) payment of pecuniary damages of $10,080,000; and

i) an order directing the Defendants to complete confidentiality agreements. [ 2 ] The Defendants’ cross-application, filed March 14, 2012 requested:

a) summary dismissal of Lozinik's claim;

b) that service of Lozinik by email to [...] shall be deemed good and sufficient service for all purposes of this action;

c) invocation of Rule 9.4(2)(

c) with respect to the form of judgments and orders;

d) an order directing that bills of costs awarded to the Defendants may be assessed ex-parte;

e) an order restraining Lozinik from filing any further applications in connection with his action until the earliest of: (

i) this court's decision regarding the Defendants' application to strike the plaintiff's claim; (ii) this court's decision regarding the merits of the Defendants’ application for

summary judgment; and

(iii) affidavits of records are served and questioning is complete.

f) costs under column 5 of

Schedule C to the Alberta Rules of Court (“Rules”), payable forthwith;

g) other directions regarding management of this action; and

h) abridging time for service. [ 3 ] Lozinik purported to advance several causes of action in respect of the Defendants. In the result I denied Lozinik

summary judgment with respect to all of the Defendants as it related to all of his twelve alleged causes of action, being:

i) recklessness; ii) irreparable harm; iii) criminal fraud; iv) conflict of interest;

v) promissory fraud; vi) breach of covenant; vii) tortious interference with business relationships; viii) conspiracy; ix) fraudulent misrepresentation;

x) deceit; xi) abuse of process; and xii) false pretences. [ 4 ] What is more, the denial of his request for

summary judgement against all of the Defendants, to the extent it purported to be

founded on:

i) recklessness; ii) irreparable harm; iii) criminal fraud; iv) conflict of interest; or

v) promissory fraud, reflected my determination that these assertions disclosed no cause of action. [ 5 ] I dismissed his actions against Sutherland in their entirety. I dismissed his actions against Geeraert and against Patel in their entirety, except an action which might be founded on breach of covenant. Lastly, I dismissed his application to direct the Defendants to execute confidentiality agreements. [ 6 ] In his pleadings, Lozinik had requested double costs in accordance with rule 4.29(1) of the Rules. The Defendants had requested costs under column 5 of

Schedule C to the Rules. In light of my decision, I requested further submissions from the parties regarding costs. [ 7 ] The Defendants reaffirmed their belief that they should receive costs under Column 5 of

Schedule C, payable forthwith. They assert that Column 5 is appropriate given the damages claimed by the Plaintiff, which exceeded $27,000,000. Lozinik’s Amended Statement of Claim filed January 26, 2012 sought “restitution in the amount of $10,080,000". He asserted that “additional costs will increase monthly (at the beginning of each month) in increments of $3,360,000/month”.

Multiplying $3,360,000 by the five months up to the date of the application before me (i.e. from February to June) yields $16,800,000 which, when added to Lozinik’s claim for $10,080,000 (“restitution”) and to his claim for $180,000 (lost wages) yields a claim for $27,000,000. [ 8 ] Despite my decision with respect to his application for

summary judgment, Lozinik claims that he should be awarded costs. He seeks costs which are intended to reimburse him for time spent in connection with this litigation. Specifically, he seeks $115,200.00, computed as follows: 1280 hours at $90.00 per hour. [ 9 ] Lozinik's request for costs is denied because:

i) he was entirely unsuccessful in his application for

summary judgment; ii) Rule 10.29 provides, inter alia , that a successful party to an application, a proceeding or an action is entitled to a costs award against the unsuccessful party. By negative inference, an unsuccessful party (Lozinik) should generally not expect to receive an award of costs against the successful party; iii) Rule 10.29(

a) provides that the principle enunciated in Rule 10.29 is subject to the Court's discretion to award costs under Rule 10.31;

iv) Rule 10.31 confers general discretion upon the Court to award costs, taking into account the factors specified in Rule 10.33;

v) Rule 10.33(1) provides as follows: In making a costs award, the Court may consider all or any of the following: (

a) the result of the action and the degree of success of each party; (

b) the amount claimed and the amount recovered; (

c) the importance of the issues; (

d) the complexity of the action; (

e) the apportionment of liability; (

f) the conduct of a party that tended to shorten the action; (

g) any other matter related to the question of reasonable and proper costs that the Court considers appropriate. [ 10 ] With respect to: 1. para. (a), Lozinik was entirely unsuccessful in his request for

summary judgment. As noted above, the Defendant Sutherland was entirely successful in her application for

summary dismissal. The Defendants Geeraert and Patel succeeded in their request for

summary dismissal in respect of eleven out of twelve of Lozinik's alleged causes of action. It is fair to say that any success which Lozinik may have enjoyed was extremely minimal. 2. para. (b), Lozinik claimed relief exceeding $27,000,000 and recovered nothing. 3. para. (c), the issues were clearly important to him but his allegations of wrongdoing were equally important to the Defendants. He did not, to my satisfaction, establish wrongdoing by the Defendants.

With respect to the one action by Lozinik (breach of covenant allegedly committed by Geeraert and Patel) which I did not dismiss I noted at para. 91 of my Judgment that my decision in that regard should not be construed by Lozinik as belief on my part that he has a reasonable chance of success. 4. para. (d), Lozinik's brief and pleadings did not reflect the structure, organization, precision of expression or foundational legal principles that would be expected of documents prepared by counsel.

A great deal of time was spent by the Defendants' counsel (and by this Court) determining what causes of action Lozinik could advance and was attempting to advance. This requirement added greatly to the complexity of the matter, in respect of which Lozinik was almost entirely unsuccessful.

[ 11 ] Rule 10.33(2) provides as follows: In deciding whether to impose, deny or vary an amount in a costs award, the Court may consider all or any of the following: (

a) the conduct of a party that was unnecessary or that unnecessarily lengthened or delayed the action or any stage or step of the action; (

b) a party's denial of or refusal to admit anything that should have been admitted; (

c) whether a party started separate actions for claims that should have been filed in one action or whether a party unnecessarily separated that party's defense from that of another party; (

d) whether any application, proceeding or step in an action was unnecessary, improper or a mistake; (

e) an irregularity in a commencement document, pleading, affidavit, notice, prescribed form or document; (

f) a contravention of or non-compliance with these rules or an order; (

g) whether a party has engaged in misconduct. [ 12 ] With respect to: 1. para. (a), para. (

d) and para. (e), Lozinik sought: (

i) to set a trial date prior to disclosure of information between the parties; (ii) case management after the date had been set for the special chambers application relating to his

summary judgment application; and (iii) to compel the Defendants to complete a Request for Disclosure which he prepared in a manner not in compliance with the Rules. All of his applications were dismissed. [ 13 ] In

summary, there is simply no basis for awarding costs in favour of Lozinik in any amount. [ 14 ] The Defendants' request for costs computed under Column 5 of

Schedule C of the Rules is granted. That request applies to Geeraert and Patel, as well as to Sutherland, even though a single potential cause of action, breach of covenant, remains available to Lozinik, should he decide to pursue it, in respect of Geeraert and Patel.

[ 15 ] I do not think it would be reasonable under the circumstances to distinguish between any of the Defendants in this regard. All of the Defendants were entirely successful in their opposition to Lozinik's request for

summary judgment. The "evidence" provided by Lozinik in support of a breach of covenant action against Geeraert and Patel is sufficiently weak that, absent the requirement that I give credence to that evidence in connection with the Defendants' request for

summary dismissal, I would have dismissed that action as well. Dated at the City of Calgary, Alberta this 25th day of September, 2012. C. M. Jones J.C.Q.B.A. Appearances: Daniel T. Lozinik - Self-represented Sharon E. Borgland for the Defendants