ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-642-SR
DATE: 2012/06/14
BETWEE N:
HEIDI SIEGEL and ROGER SIEGEL
M. Jaeger, for the Plaintiffs
Plaintiffs
- and -
MARLON GARY HIBBERT also known as GARY HIBBERT, VERNA HIBBERT also known as SHELLEY HIBBERT, ASHANTI CORPORATE SERVICES INC., MARLON GARY HIBBERT and VERNA HIBBERT operating as KABASH RESOURCE MANAGEMENT, POWER TO CREATE WEALTH INC.
Self Represented
Defendants
HEARD: January 10, 11, 12, 13, 19, February 1 and 28, 2012
AND
Court File No. CV-10-651-SR
B E T W E E N:
NITIN JESSE SOLOMAN and LALETTA CHANG-SOLOMON, and SOLOMON CHANG CAPTIAL MANAGEMENT INC.
Plaintiffs
- and –
MARLON GARY HIBBERT also known as GARY HIBBERT, VERNA HIBBERT also known as SHELLEY HIBBERT, ASHANTI COPRORATE SERVICES INC., MARLON GARY HIBBERT and VERNA HIBBERT operating as KABASH RESOURCE MANAGEMENT, POWER TO CREATE WEALTH INC.
Defendants
AND
Court File No. CV-10-652-SR
B E T W E E N:
ISAIAH SOLOMON and TAMMY MARIE SOLOMON
Plaintiffs
- and –
MARLON GARY HIBBERT also known as GARY HIBBERT, VERNA HIBBERT also known as SHELLEY HIBBERT, ASHANTI CORPORATE SERVICES INC., MARLON GARY HIBBERT and VERNA HIBBERT operating as KABASH RESOURCE MANAGEMENT, POWER TO CREATE WEALTH INC.
AND
Court File No. CV-11-251-SR
B E T W E E N:
DIADEM CONSULTING INC.
Plaintiff
- and –
MARLON GARY HIBBERT also known as GARY HIBBERT, VERNA HIBBERT also known as SHELLEY HIBBERT, MARLON GARY HIBBERT and VERN HIBBERT operating as KABASH RESOURCE MANAGEMENT, ONTARIO CORPORATION 2124329 operating as ASHANTI CORPORATE SERVICES INC., POWER TO CREATE WEALTH INC., POWER TO CREATE WEALTH INC. (PANAMA), DOMINION INTERNATIONAL RESOURCE MANAGEMENT INC., and DOMINION WORLD OUTREACH MINISTRIES DOMINION WORSHIP CENTRE INC.
Defendants
AND
CV-11-631-SR
B E T W E E N:
MARCIA DIXON
Plaintiff
- and -
MARLON GARY HIBBERT also known as GARY HIBBERT, VERNA HIBBERT, also known as SHELLEY HIBBERT, MARLONG GARY HIBBERT and VERNA HIBBERT operating as KABASH RESOURCE MANAGEMENT, ONTARIO CORPORATION 2124329 operating as ASHANTI CORPORATE SERVICES INC., POWER TO CREATE WEALTH INC., POWER TO CREATE WEALTH INC. (PANAMA), DOMINION INTERNATIONAL RESOURCE MANAGEMENT INC., and DOMINION WORLD OUTREACH MINISTRIES DOMINION WORSHIP CENTRE INC.
Defendants
The Hon. Mr. Justice Arrell
JUDGMENT ON COSTS
[ 1 ] The plaintiffs invested funds with the defendant Marlon Hibbert and his assorted companies, all of which were defendants.
[ 2 ] The investments were lost. The defendants consented to judgment for the principal amount but not interest. The plaintiffs sought interest and a declaration that they were defrauded of these funds by the defendant Hibbert and his wife, the defendant Verna Hibbert, and the assorted defendant companies. They also sought a declaration that the defendants fraudulently conveyed their home from a joint tenancy to Verna solely contrary to The Fraudulent Conveyances Act , R.S.O. 1990, c. F.29. After a seven day trial they were completely successful and now seek their costs on a substantial indemnity basis.
[ 3 ] I found that the defendant Marlon Hibbert committed fraud and that he and his wife Verna fraudulently conveyed their house intending to defeat the plaintiffs and other creditors.
[ 4 ] The Court of Appeal has stated as follows:
“…This court, following the principle established by the Supreme Court, has repeatedly said that elevated costs are warranted in only two circumstances. The first involves the operation of an offer to settle under rule 49.10, where substantial indemnity costs are explicitly authorized. The second is where the losing party has engaged in behavior worthy of sanction.”
Davies v. Clarington (Municipality) 2009 ONCA 722 , [2009] O.J. No. 4236 (O.C.A.) para. 28
[ 5 ] The conduct of the defendants is worthy of sanction.
[ 6 ] The plaintiffs seek costs of $92,267.75 inclusive of disbursements, H.S.T., and the cost of preparing these cost submissions. There were five actions prosecuted at the same time, ten motions were conducted due in large part because of the conduct of the defendants, discoveries held, and orders to continue obtained from the bankruptcy court. The amount of work done clearly justifies the costs requested, and I note the work was divided appropriately between senior and junior counsel. There is no reason, given the facts of this case, as to why the plaintiffs should not receive their costs on a substantial indemnity basis.
[ 7 ] The claims against the defendant Verna Hibbert for involvement in the fraudulent investment schemes were dismissed. She was, however, found to be jointly responsible with her husband in the fraudulent conveyance of their house. She must bear some of the responsibility for the costs involving that part of the action. It is significant to this court that it learned after the trial that during it she listed and sold the home in question. Such conduct is outrageous and worthy of sanction. The fraudulent conveyance was a significant and important part of this litigation as the only remaining asset of the defendants would appear to be this house.
[ 8 ] I have also considered the principles in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 , 71 O.R. (3d) 291(C.A.) and find that costs to the plaintiffs in the amount of $92,267.75 on a substantial indemnity basis, in all the circumstances, is fair and reasonable to both sides and within their respective expectations. It is noted that no submissions on costs have been made by any of the defendants although invited to do so within 30 days of the release of my judgment, which has passed.
[ 9 ] I further find that the defendant Verna Hibbert is responsible for 25% of the costs jointly with the other defendants. All the other defendants are jointly responsible for 100% of the costs. The costs are payable forthwith.
Dated: June 14, 2012 ______________________
ARRELL, J.