2020 MBCA 37, 2020 MBCA 37

Citation: The Law Society of Manitoba v Kalo, Date: 20200325 2020 MBCA 37 Docket: AI19-30-09263 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : THE LAW SOCIETY OF MANITOBA ) M. Kalo ) on his own behalf ) (Applicant) Respondent ) R. H.

Kravetsky ) for the Respondent - and - ) ) Appeal heard and MICHAEL KALO ) Decision pronounced: ) March 11, 2020 ) (Respondent) Appellant ) Written reasons: ) March 25, 2020 On appeal from 2019 MBQB 60 PER CURIAM [ 1 ] The respondent appealed a permanent injunction prohibiting him from practising, or attempting to practise, law or offering or providing legal services under

section 29 of The Legal Profession Act , CCSM c L107 . He also appealed the award of costs. At the conclusion of the hearing on November 4, 2019, the respondent’s appeal of the permanent injunction (the first appeal) was dismissed with costs to be determined, however, the appeal of the award of costs (the costs appeal) was adjourned to permit the parties to file materials on the issue of costs ( see 2019 MBCA 112 ). [ 2 ] After hearing the costs appeal, we dismissed it with costs and with reasons to follow.

These are our reasons. [ 3 ] The judge pronounced the permanent injunction on March 28, 2019, and issued written reasons on April 24, 2019. The respondent filed his notice of appeal on April 8, 2019, and his factum on May 21, 2019. Despite the fact that the hearing to determine costs had not been held and the judge had not made any order as to costs, the respondent asserted in his notice of appeal and factum that the judge erred in making an order of costs against him. On October 29, 2019, at the conclusion of the hearing, the judge made the order for costs and issued oral reasons.

The order was signed on November 8, 2019. [ 4 ] The judge ordered costs in favour of the Law Society of Manitoba (the LSM), in the total amount of $8,856.18 with interest as follows:

a) Party-and-party costs under Tariff A, Class 3 of $4,850;

b) Disbursements under Tariff B of $3,006.18; and

c) Additional costs on a solicitor-and-client basis of $1,000. [ 5 ] The respondent’s arguments on the costs appeal may be summarised as whether the judge erred in law; misapplied the law to the facts; or made findings not supported by the evidence. [ 6 ] There is no merit to the costs appeal. In our view, the judge’s award of costs is not based on an error in principle, nor is it plainly wrong (see Hamilton v Open Window Bakery Ltd , 2004 SCC 9 at para 27 ; Little Sisters Book and Art Emporium v Canada

(Commissioner of Customs and Revenue) , 2007 SCC 2 at paras 47-49 ; Ducharme v Borden , 2014 MBCA 5 at paras 23-24 ; and Nash v Nash , 2019 MBCA 31 at para 42 ). [ 7 ] The judge properly considered and applied the relevant factors pursuant to the Manitoba, Court of Queen’s Bench Rules , Man Reg 553/88 (the QB Rules ), r 57.01, and he calculated the party-and-party costs and disbursements in accordance with the applicable tariffs under the QB Rules .

In doing so, the judge considered the evidence filed by the LSM and noted that there was no cross-examination on any of the materials filed. [ 8 ] The judge considered the respondent’s representations regarding his “degree of impecuniosity” and whether his offers to settle warranted “serious consideration” in the circumstances in which they were made. He carefully reviewed each disbursement challenged by the respondent for photocopying, binding, transcripts and security for an examination for discovery before concluding that they were valid.

Finally, he considered whether the solicitor-and-client costs, sought by the LSM for an unnecessary attendance and “irrelevant” and “scandalous” communications, were reasonable ( see Nash at para 43 ). Costs on the Appeal [ 9 ] The LSM seeks costs in accordance with Tariff B on the first appeal and Tariff D on the motion to adjourn the costs appeal (see the Manitoba, Court of Appeal Rules , Man Reg 555/88R ) .

It argues that the costs appeal constitutes a second proceeding similar to the hearing of a motion and requests additional costs according to Tariff D of $350 plus a $500 factum fee (half of the amount in Tariff B). It also seeks costs for disbursements and for reviewing unnecessary and outrageous communications sent by the respondent after the notice of appeal was filed.

Finally, it argues that the respondent should “be censured for the language used in his submissions to this Court.” [ 10 ] We agree that the LSM is entitled to costs on the first appeal and that an additional order for costs is warranted on the costs appeal. The only reason that the costs appeal was adjourned was because the respondent appealed the award of costs before the order was made. The result of the adjournment was that supplementary materials were filed and a second hearing was held. Both parties filed supplementary factums, appeal books and authorities.

The hearing of the costs appeal took a half-day—essentially the same amount of time as the first appeal. [ 11 ] We also agree that the amount of $140, sought by the LSM for reviewing unnecessary and outrageous communications, is reasonable. [ 12 ] On January 9, 2020, the parties appeared on a motion brought by the respondent to adjourn the costs appeal. The motion was dismissed with costs to be determined on the costs appeal.

In our view, the LSM is entitled to costs on the motion in the amount of $350 pursuant to Tariff D. [ 13 ] The question that remains is whether the respondent ought to be censured for his conduct in Court during the hearings of the first appeal and the costs appeal. During both hearings and despite warnings from the panel, the respondent was disruptive during opposing counsel’s submissions, used offensive language and made scandalous allegations about members of Winnipeg’s legal and Jewish communities.

Moreover, his behaviour was beyond disrespectful and constituted a threat to the integrity of the justice system. We are of the view that the respondent’s conduct warrants an order for additional costs. [ 14 ] In our view, the appropriate costs award that addresses all of the above objectives is an award according to Tariff B of $2,500 on each of the first appeal and the costs appeal.

This award includes the costs incurred by the LSM for disbursements and reviewing unnecessary communications from the respondent, as well as additional costs intended to censure the respondent’s behaviour in Court. [ 15 ] In the result, the costs appeal was dismissed. Costs on the first appeal are awarded to the LSM in the amount of $2,500. Costs on the motion are awarded to the LSM in the amount of $350. Costs on the costs appeal are awarded to the LSM in the amount of $2,500. JA JA JA