Morris James Holervich

The decision addresses a motion to compel a lawyer, Mr. Strickland, to answer questions refused during cross-examination in a shareholder dispute among several First Nations and a jointly owned corporation.

The court analyzes the scope of permissible cross-examination on a motion to dismiss, the application of solicitor-client and litigation privilege in the context of joint retainers, and the rights of minority shareholders to information.

The court orders that certain questions regarding the existence of contractual commitments must be answered, as they are not protected by privilege, but limits further questioning.

This is an appeal from a motion judge's order dismissing the appellant's action as an abuse of process, specifically for contravening s. 2(1) of the Solicitors Act by bringing an action within one month of delivering a bill without leave.

The appellant argued errors regarding the nature of retainer, procedural unfairness in dismissing an amendment motion, and reversal of burden of proof.

The Court of Appeal dismissed the appeal, finding no error in the motion judge's decision, confirming the action was an abuse of process, and upholding the dismissal of the amendment motion due to lack of leave.

This is an appeal from a bankruptcy order against River Green (Thunder Bay) Inc. The appellant, John Beals, a shareholder, argued that the bankruptcy application by BNL Contracting Ltd. was brought for an improper purpose, relying on section 43(7) of the Bankruptcy and Insolvency Act.

The Court of Appeal upheld the application judge's decision, finding no palpable and overriding error in the rejection of the improper purpose allegation as speculative.

The court emphasized the highly deferential standard of review for discretionary decisions under section 43(7) and noted the appellant's failure to cross-examine the respondent's principal on the alleged conspiracy.

This decision addresses the final stages of a corporate winding-up application for Norall Group Inc. and Norall Group Contracting Inc., including the passing of accounts and the determination of outstanding costs.

The court resolved disputes regarding an interim dividend and an interim distribution order, finding that a respondent shareholder was not entitled to a priority distribution due to significant outstanding costs owed to the applicants.

The corporations were ordered wound up, and the applicants were appointed trustees to complete the process, with the respondent's shareholder entitlement deemed nil due to her outstanding liabilities.

The plaintiff, 1401380 Ontario Limited O/A Wilderness North Air, brought a motion to amend its statement of claim to add Wasaya Petroleum LP as a party defendant and to compel Wasaya Airways LP to answer a refused discovery question.

The court dismissed both motions, finding that the limitation period for adding Wasaya Petroleum LP had expired.

The court determined that the plaintiff had sufficient information to discover the claim against Wasaya Petroleum LP much earlier than asserted, specifically by September 2016, and failed to provide a reasonable explanation for the delay.

Consequently, adding the party was prohibited under section 21(1) of the Limitations Act, 2002.

The discovery question was deemed irrelevant given the dismissal of the motion to amend.

The applicant, Gary William Craib, brought a motion seeking interim orders to restrain the respondent, James Alexander Craib, from exercising authority over assets of their father, Stanley William Craib, and their late mother, Anne Elizabeth Craib's estate.

Gary alleged dissipation of assets by James.

James opposed the motion, arguing Gary lacked standing.

The court dismissed Gary's motion, finding he lacked standing and the motion was premature.

The court directed the Public Guardian and Trustee to arrange legal representation for Stanley to assess his capacity and address issues related to the mother's estate and the power of attorney for property.

A solicitor commenced an action for unpaid fees four days after delivering the bill, contravening the Solicitors Act.

The client obtained an order for assessment.

The solicitor moved to consolidate his action with the assessment and sought *nunc pro tunc* leave to commence the action early, citing personal circumstances and alleged client intent to depart Ontario.

The client moved to stay or dismiss the action.

The court dismissed the solicitor's action as an abuse of process, finding no probable cause for early commencement under the Act and that personal circumstances were not justification.

The motions for consolidation and to amend the statement of claim were also dismissed.

This judgment concerns an application for a bankruptcy order against River Green (Thunder Bay) Inc. The court previously determined that the alleged debt to the applicant creditor, BNL Contracting Ltd., was bona fide.

The remaining issues were whether River Green committed an act of bankruptcy within six months of the application and whether the application was brought for an improper purpose.

The court found that River Green had ceased to meet its liabilities generally, satisfying the act of bankruptcy requirement.

The court dismissed the respondents' argument that the application was brought for an improper purpose, finding their evidence speculative and noting the debtor's inability to manage its affairs.

A bankruptcy order was granted, and a trustee appointed.

Costs were awarded against the opposing parties.

The defendants brought a motion seeking an interim or final order to authorize the transfer of shares held by the Jack Witiluk Family Trust in Phase 2 Ventures Inc. to Jeffrey Witiluk and Ryan Witiluk.

The plaintiffs opposed, citing prejudice, oppression, and technical issues related to board approval and director appointment.

The court found the plaintiffs' opposition lacked merit, emphasizing the long-standing nature of the litigation and the pragmatic business sense of the proposed transfer.

Exercising its discretion under the Ontario Business Corporations Act, the court authorized the share transfer, dismissing the plaintiffs' technical objections.

Costs were awarded against the plaintiff, Gerald Witiluk, personally.

This decision addresses the final stage of a highly contentious estate dispute, focusing on the passing of accounts, discharge of estate trustees, and unequal distribution of estate proceeds.

The applicants, Lee Swearengen and Linda Arp, sought approval of their accounts and discharge, along with an unequal distribution of the estate due to the respondents' (Patricia Aho and Jerry Swearengen) conduct.

The court approved the estate trustees' accounts, including their compensation and legal fees, finding the objections by the respondents to be without merit and unduly protracted.

The court also ordered an unequal distribution, significantly reducing Jerry Swearengen's share due to his outstanding costs awards, share of estate expenses, and legal expenses incurred due to his conduct.

The applicants, two First Nations, brought a motion seeking an interim order to restrain the four respondent First Nations from distributing funds from their jointly owned corporation, Rainy Lake Tribal Resource Management Inc., to its shareholders.

This motion was brought in connection with an application claiming relief under the oppression remedies of s. 248 of the Ontario Business Corporations Act.

The applicants argued that the notice for the shareholders' meeting, which approved the distribution, was inadequate and that the distribution was unfairly prejudicial.

The court applied the traditional three-stage test for interlocutory injunctions, as affirmed in Le Maitre Ltd v. Segeren and Lakhani v. Gilla Enterprises Inc, finding that the applicants failed to establish irreparable harm.

The court noted that the harm complained of was monetary and adequately secured by funds held in trust by the respondents' solicitors, and that the corporation itself had significant remaining funds.

Consequently, the motion for an interim restraining order was dismissed.

The applicant, an estate trustee and beneficiary, brought a motion for directions regarding the sale of the deceased's home to two other beneficiaries, who were also estate trustees.

The purchasing beneficiaries sought to credit their one-third beneficial interests against the discounted fair market value purchase price.

The applicant argued that the full purchase price should be paid to the estate to cover potential estate expenses before final distribution.

The court directed that the beneficiaries must pay the full discounted purchase price to the estate, without crediting their beneficial interests, to ensure sufficient funds for anticipated estate costs.

The plaintiffs, Gerald Witiluk and the trustees of the Gerald Witiluk Family Trust, brought a motion seeking an order that the defendants, Jack Witiluk and others, were in contempt of three previous court orders regarding document production in an ongoing oppression remedy case.

The court dismissed the motion, finding that while there were delays in production, the plaintiffs failed to prove beyond a reasonable doubt that the defendants' conduct was intentionally contemptuous.

The court exercised its discretion, considering the complex, long-standing nature of the family business litigation, the moving target of the share valuation date, and the defendants' good faith efforts to comply.

The court also criticized the plaintiffs' use of aggressive language in their motion, including a request for imprisonment, which was deemed unhelpful to the process.

The appellants, operators of two gravel pits in the Municipality of Shuniah, appealed a decision dismissing their application to declare illegal a series of municipal by-laws regulating vehicle weight on municipal roads.

The appellants argued the by-laws were enacted in bad faith because they were not given actual personal notice of the Municipality's intention to pass them and because the by-laws prevented their aggregate extraction businesses from operating in a commercially viable manner.

The Court of Appeal upheld the application judge's dismissal, finding no requirement for personal notice in the circumstances and no evidence that the by-laws precluded commercial operation of the pits.

The court issued supplementary reasons following a 2016 decision regarding the estate of Vincenzo Demasi.

The respondent (mother) moved under Rule 59.06(2)(a) to vary or set aside the prior order on grounds of fraud, which was dismissed due to insufficient proof.

The court also finalized the valuation of personal property (tools, vehicles, bank accounts) and RRSPs, which the parties had failed to agree upon.

The court fixed the value of tools at $2,070, vehicles at $20,700, and cash in bank accounts at $73,291.99.

The amount for RRSPs held in trust for one daughter was determined to be $32,262.80, net of taxes.

The applicants sought to transfer an appeal from the Court of Appeal for Ontario to the Divisional Court, arguing that the Divisional Court has exclusive jurisdiction over appeals from orders made under the Ontario Business Corporations Act.

The underlying application was a contested winding up application where the application judge determined shareholding and ordered the corporations wound up as just and equitable.

The respondents argued the appeal should remain with the Court of Appeal because the core issue involved common law and equitable doctrines rather than purely statutory interpretation.

The court held that the appeal was fundamentally a winding up application under the OBCA, with shareholding determination and ancillary orders being necessary to that core relief, and therefore fell within the Divisional Court's jurisdiction under section 255 of the OBCA.

The applicant and respondent, sisters, disputed the administration of their mother's and uncle's estates.

The applicant sought reimbursement from the respondent for alleged personal payments for home repairs, executor's compensation, and an alleged gift from the uncle's estate.

The respondent sought repayment of a loan from the applicant to their mother's estate.

The court dismissed the applicant's claims regarding home repairs and executor's compensation, but ordered the respondent to reimburse Frank's estate $5,000 for unauthorized post-mortem withdrawals.

The court also ordered the applicant to repay Mary's estate $5,500.77 for the outstanding balance of a loan.

This decision addresses a motion for the appointment of a case management judge to oversee two complex and intertwined files (an application and an action) involving numerous parties and pending motions.

The court found that the litigation had become unmanageable and would benefit from a single judge providing directions and making procedural orders to expedite the proceedings.

Justice Pierce, already familiar with the matters, was appointed as the case management judge under Rules 37.15 and 50.13 of the Rules of Civil Procedure, with all future motions to be heard by her.

The applicants, Gina Gustafson and Juanita Curle, sought an order to wind up two corporations, Norall Group Inc. and Norall Group Contracting Inc., and a declaration of share ownership.

The respondents, Bruce Johnson and Allan Curle, opposed the winding up and claimed that the applicants held their shares in trust for their husbands.

The court found that the shares were validly gifted to the wives, rejecting claims of estoppel by convention, resulting trust, and constructive trust.

The court determined that the corporations had become dysfunctional due to management disputes, tax evasion convictions of the directors, and cessation of business, which prejudiced the shareholders.

Consequently, the court ruled it was just and equitable to wind up the corporations.

The moving defendants sought an equitable set-off between interim costs orders arising from two unrelated proceedings: a shareholder oppression action under the Ontario Business Corporations Act and separate matrimonial litigation.

They argued that costs they owed to five plaintiffs in the corporate dispute should be offset against costs owed by one plaintiff to one defendant in the matrimonial matter.

The court held that equitable set-off requires a close connection between the claims and generally mutuality of parties.

Because the debts arose from entirely different proceedings involving different parties, and lacked any sufficient nexus, the test from Holt v. Telford was not satisfied.

The court also found no procedural authority under the Rules of Civil Procedure to grant such relief on an interim motion.