Court File and Parties
COURT FILE NO.: 10-886 DATE: 2018/09/18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Herbert James Frederick Burger commonly known as Herbert Frederick Burger Plaintiff/Defendant by Counterclaim
– and –
The Estate of Herbert Frederick Burger, The Estate of Herbert Frederick Burger represented by the Estate Trustees, Russell Kenneth Burger and Jason Herbert Burger and Russell Kenneth Burger and Jason Herbert Burger in their personal capacities Defendants/Plaintiffs by Counterclaim
COUNSEL: In Person Peter Sammon for Jason Burger Martin Diegel for Russell Kenneth Burger
HEARD: in Writing
COSTS ENDORSEMENT
THE HONOURABLE JUSTICE L. C. SHEARD
[1] On June 26, 2018 I granted judgment against the defendant by counterclaim (“Herbie Jr.”) in the amount of $181,448.80. I found that Herbie Jr. repeatedly attended the deceased’s property to strip it of vehicles and trees worth $362,277.00, which was $181,448.80 more than his one-third residuary share of his late father’s estate.
[2] The plaintiffs by counterclaim are Herbie Jr.’s brothers, Russell Kenneth Burger (“Ken”) and Jason Herbert Burger (“Jason”). In their counterclaim, Ken and Jason sought to have their late father’s estate properly and fairly administered and shared equally among themselves and Herbie Jr.
[3] Ken and Jason were put to great expense to try to stop Herbie Jr. from stripping the estate of its assets. By reason of his conduct, Herbie Jr.’s pleading was struck out, leaving Ken and Jason to pursue their counterclaim. The trial was needed primarily to establish the value of what Herbie Jr. took from the estate. It proceeded by way of one day of viva voce evidence followed by written evidence in the form of Ken’s affidavit. Herbie Jr.’s actions also led to the appointment of an estate trustee during litigation, an otherwise unnecessary expense.
[4] Ken and Jason have been successful throughout this litigation: they have established that Herbie Jr. took assets that belonged to the estate and the value of those assets.
[5] In my decision, Ken and Jason were invited to make written costs submissions. These were served on each other and on Herbie Jr. and filed. Herbie Jr. was permitted to serve and file responding submissions. He has not done so. This cost decision is made on the basis of the written submissions that were filed.
Costs Requested
[6] In his costs submissions, Ken seeks his costs on a full indemnity basis in the amount of $24,694.49. That figure includes fees and HST of $23,131.10 and disbursements and HST of $1,167.00.
[7] In his costs submissions, Jason also seeks his costs on a full indemnity basis in the total amount of $15,415.78, made up of fees and HST of $14,859.50 plus disbursements of $556.28.
[8] Jason accepts that Ken’s lawyer spent considerably more time than his own counsel, as Ken’s lawyer prepared the Trial Record as well as Ken’s affidavit submitted after the first day of the hearing that provided evidence of the value of what Herbie Jr. had taken from the estate.
[9] Ken and Jason submit that they are entitled to full indemnity costs because of Herbie Jr.’s “outrageous” conduct and that the higher costs award is warranted when the factors under rule 57.01 are applied including that:
(i) the amount claimed and recovered was $181,448.80;
(ii) the proceeding was made more complex because they had to identify and value the assets taken by Herbie Jr.;
(iii) the issues were very important to Jason and Ken, whose share of the estate had been “raided” by Herbie Jr.; and
(iv) Herbie Jr.’s conduct tended to lengthen unnecessarily the proceeding because his actions necessitated successive interim orders, which Herbie Jr. breached and which costs awards remain entirely unpaid.
[10] I accept the submissions that Herbie Jr.’s conduct in stripping the estate assets was reprehensible and justified sanction but note that other judges have already sanctioned Herbie Jr. by costs awards and by striking out his pleadings.
[11] The costs that I am fixing here relate mainly to the trial. Although Herbie Jr. was present at the trial, by that point, his pleadings had been struck out and he had no right to lead evidence. The trial adjourned at the end of its first day to allow Ken and Jason to gather expert valuation evidence and Herbie Jr. did not thereafter participate in the trial process. The valuation evidence was ultimately presented to the Court by way of Ken’s affidavit. Herbie Jr. was given the opportunity to make submissions after the evidence had been submitted, but did not do so. Therefore, with respect to the trial, I cannot conclude that Herbie Jr.’s behaviour was outrageous or reprehensible such as to warrant an award of costs on a full indemnity basis.
Disposition
[12] I accept the submissions of Ken and Jason that the fees they incurred are reasonable and within what Herbie Jr. would have reasonably contemplated that he would have to pay if he was unsuccessful in defending the counterclaim against him. Ken and Jason retained senior counsel and the time spent and the hourly rates charged of between $300.00 and $400.00 per hour are fair and reasonable.
[13] In all of the circumstances and after considering the factors under rule 57 and the applicable jurisprudence (Boucher v. Public Accountants Council for the Province of Ontario, 2004 CanLII 14579, Conforti (Re), 2015 ONCA 708), I have determined that costs to be paid by Herbie Jr. should be fixed on a substantial indemnity scale as follows:
(v) To Ken: $ 21,985.00; and
(vi) To Jason: $ 13,930.00.
Sheard J.
Released: September 18, 2018
COURT FILE NO.: 10-886 DATE: 2018/09/18
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
Herbert James Frederick Burger commonly known as Herbert Frederick Burger Plaintiff/Defendant by Counterclaim
– and –
The Estate of Herbert Frederick Burger, The Estate of Herbert Frederick Burger represented by the Estate Trustees, Russell Kenneth Burger and Jason Herbert Burger and Russell Kenneth Burger and Jason Herbert Burger in their personal capacities Defendants/Plaintiffs by Counterclaim
COSTS ENDORSEMENT
Sheard J.
Released: September 18, 2018