Court File and Parties

Court File No.: CV-10-886
Date: November 20, 2014

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Herbert James Frederick Burger, Plaintiff

AND

The Estate of Herbert Burger; The Estate of Herbert Burger represented by the Estate Trustees, Russell Kenneth Burger and Jason Burger; Russell Kenneth Burger, in his personal capacity and Jason Herbert Burger, in his personal capacity

BEFORE: The Honourable Mr. Justice Martin James

COUNSEL:
Self Represented, Plaintiff
Robert B. Howe, Estate Trustee during Litigation
Martin Diegel, for Defendant Russell Kenneth Burger, in his personal capacity
M. Peter Sammon, for Defendant Jason Herbert Burger, in his personal capacity

HEARD: Written Submissions

COSTS ENDORSEMENT

1This is a costs endorsement from a motion in this action heard earlier this year. The moving party was Mary Shushack, the former solicitor for the plaintiff, Herbert Burger. The motion was for a charging order to secure her account. The request for a charging order was dismissed as the solicitor was unable to point to a fund or other assets accruing to the benefit of her client brought about by her efforts.

2The motion was heard at the same time as other matters relating to the lawsuit. Messrs. Sammon and Diegel were present on behalf of the defendants and argued against the granting of a charging order.

3The hearing of the issues respecting the request for the charging order took about thirty minutes.

4Mr. Sammon did not make a request for costs. Mr. Diegel submitted a claim for $1824.24 all inclusive on a partial indemnity basis.

5The issue here is whether Mr. Diegel’s clients are entitled to some amount of costs in relation to the solicitor’s request to secure her account against the assets of the plaintiff.

6Ms. Shushack still has a substantial outstanding account for services rendered to the plaintiff that may not be collectable. Also, costs orders against solicitors are unusual and tend to be restricted to situations where the solicitor has acted improperly in some way.

7In the particular circumstances of this situation, I have decided to exercise my discretion against requiring Ms. Shushack to pay costs to any of the defendants.

The Honourable Mr. Justice James

Date: November 20, 2014

Court File and Parties

Court File No.: CV-10-886
Date: November 19, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

RE: Herbert James Frederick Burger, Plaintiff

AND

The Estate of Herbert Burger; The Estate of Herbert Burger represented by the Estate Trustees, Russell Kenneth Burger and Jason Burger; Russell Kenneth Burger, in his personal capacity and Jason Herbert Burger, in his personal capacity

BEFORE: The Honourable Mr. Justice Martin James

COUNSEL:
Self Represented, Plaintiff
Robert B. Howe, for Defendant Estate of Herbert Burger represented by Trustees, Russell Burger and Jason Burger
Martin Diegel, for Defendant Russell Kenneth Burger, in his personal capacity
M. Peter Sammon, for Defendant Jason Herbert Burger, in his personal capacity

COSTS ENDORSEMENT

James, J.

Released: November 20, 2014