Culbert v. Culbert, 2017 ONSC 4588

Court File and Parties

Citation: Culbert v. Culbert, 2017 ONSC 4588 Court File No.: 14-4065-SR Date: 2017-07-28 Superior Court of Justice - Ontario

Re: Ronald Jeffrey Culbert, Plaintiff And: Timothy Culbert, Timothy Culbert as Trustee of the Estate of the Late Marjorie Culbert and Jessica Culbert, also known as Jessica McCoag, Defendants

Before: The Honourable Justice G.E. Taylor

Counsel: Simon J. Adler, for the Plaintiff J. Scott Thomson, for the Defendants

Costs Endorsement

[1]

Background

After a four-day trial, I granted judgment in favour of the plaintiff setting aside as fraudulent and void, a conveyance of title to a residence located at 71 Elizabeth Street in Guelph, Ontario. In coming to that conclusion I found that the defendant Timothy Culbert had forged the signature of his brother, Ronald Culbert, on an Acknowledgment and Direction pursuant to which title the property was conveyed.

2The parties have made written submissions with respect to costs of the action.

[3]

Positions of the Parties

The position of Ronald Culbert is that because of the finding of forgery made against Timothy Culbert, costs should be awarded against Timothy Culbert and the Estate of Marjorie Culbert on a substantial indemnity basis payable jointly and severally and that costs should be awarded against Jessica Culbert, also known as Jessica McCoag, on a partial indemnity basis.

4The position of the defendants is that there should be no costs awarded against Jessica Culbert because there was no evidence of her being complicit in the forgery committed by her father and that because he is of modest means, costs against Timothy Culbert should be awarded on a partial indemnity basis only. The defendants do not make any submissions about the cost liability of the Estate of Marjorie Culbert.

[5]

Analysis

Our Court of Appeal has held that an award of substantial indemnity costs is reserved for cases involving reprehensible conduct: Mortimer v. Latimer, [1994] O.J. No. 277; Davies v. Clarington (Municipality), 2009 ONCA 722, [2009] O.J. No. 4236. In my view, the forging of a person’s signature on a document in order to effect of the transfer of title to a home rises to the level of reprehensible conduct justifying an award of substantial indemnity costs.

6I did not find any evidence implicating Marjorie Culbert in the forgery. Therefore, I do not think it appropriate to make an award of substantial indemnity costs against her estate.

7Jessica Culbert is an unsuccessful litigant. She was not involved in her father’s forgery. However, I see no reason why costs of the action should not be awarded against her on a partial indemnity basis.

8Counsel for Ronald Culbert was called to the bar in 1978. During the course of this action his hourly rate ranged from $350 - $410 per hour. Two other lawyers called to the bar in 2012 and 2014 assisted in certain aspects of the case with hourly rates of approximately $200. Three students and a law clerk also docketed time on the file. Counsel for the defendants suggests that there is possibly some duplication of effort on the part of Ronald Culbert’s solicitors without specifying the areas of duplication. However, he does assert that he was called to the bar in 1986, charged $300 per hour and that his total fees billed on the file are in the range of $31,000.

9In my view, the hourly rates of the main counsel for Ronald Culbert are reasonable. Having reviewed the time summary attached as Schedule A to the Plaintiff’s Costs Submissions, there does not appear to be any significant duplication of effort on the part of counsel, students and law clerks.

10It must have been within the contemplation of Timothy Culbert that if he was unsuccessful, and in particular if a finding were to be made that he forged his brother’s signature, that he would be facing a significant award of costs. However, I also take into consideration that he is a man of modest means and that his lawyer charged him an hourly rate significantly less than that of lead counsel for Ronald Culbert.

11The issues in this case were important to both parties. I do not find that the issues were particularly complex. The primary issue was whether the signature on the Acknowledgment and Direction which purported to be that of Ronald Culbert, was a forgery. Having determined that it was a forgery the outcome was clear.

12It does not appear to me that either party acted unreasonably during the course of litigation. The trial was conducted efficiently by both counsel.

13I am not assessing costs. My role is to fix an amount which I determine to be fair and reasonable in all of the circumstances. I have concluded that $40,000 is a reasonable amount for Ronald Culbert’s substantial indemnity fees of this proceeding.

14Ronald Culbert also claims disbursements of $10,987. Counsel for the defendants does not challenge the propriety of any of those disbursements. The only disbursement about which I have some concern is the research charge of $1,735.50. This seems excessive to me considering the time for three law students is also included in the claim for fees. I therefore propose to fix disbursements at $9,000 of which $1,000 are not subject to HST.

15In fixing partial indemnity fees, counsel for Ronald Culbert suggests a percentage of 66 percent be applied to the amount determined to be appropriate for substantial indemnity fees. I have decided that partial indemnity fees should be calculated at 60 percent of the substantial indemnity fees.

[16]

Disposition

I have therefore calculated the substantial indemnity costs payable by Timothy Culbert to be:

Fees $40,000 HST $ 5,200 Disbursements $ 9,000 HST on disbursements $ 1,040 Total $55,240

17Similarly, I have calculated the partial indemnity costs payable by Jessica Culbert and the Estate of Marjorie Culbert to be:

Fees $24,000 HST $ 3,120 Disbursements $ 9,000 HST on disbursements $ 1,040 Total $37,160

18Timothy Culbert is liable jointly and severally with Jessica Culbert and the Estate of Marjorie Culbert for the partial indemnity costs. All costs are payable forthwith.