Morris James Holervich

In a standalone costs decision following a refusals motion and an abuse of process motion, the court assessed entitlement and quantum under Rule 57.01.

The moving parties were found to have been largely successful on the refusals motion and wholly successful on the abuse of process motion that resulted in dismissal of a duplicative application.

The responding parties disputed costs submissions but did not challenge rates or time through a responding bill of costs or costs outline.

Applying proportionality and the Rule 57.01 factors, the court fixed partial indemnity costs at $15,000 inclusive of disbursements and HST, payable within 60 days.

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.

The plaintiff, Wilderness North Air, was awarded a contract by Hydro One Remote Communities Inc. (Remotes) to be the primary vendor for the delivery of diesel fuel by air to five remote First Nations communities.

After the contract was awarded, several First Nations communities issued Band Council Resolutions (BCRs) stating they would only accept fuel delivered by Wasaya Airways, a First Nations-owned airline that had been unsuccessful in the bidding process.

Remotes subsequently cancelled Wilderness's purchase orders for four of the communities and awarded the work to Wasaya and another carrier.

Wilderness sued Remotes for breach of contract and breach of the duty of good faith, and sued Wasaya for inducing breach of contract.

The Superior Court of Justice found that Remotes breached the contract and its duty of good faith, and that Wasaya induced the breach.

Wilderness was awarded $2,718,988 in damages, with Wasaya jointly and severally liable for $856,458.

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 applicant and one of the respondents, siblings and co-estate trustees, sought directions on six issues regarding the administration of their mother's estate.

The court denied requests to have the estate pay the trustees' legal fees, finding the litigation was personal and adversarial.

The court also resolved disputes over rent-free occupation of estate property, an estate vehicle, and a loan.

Finally, the court awarded $25,000 in total executor compensation, split equally between the two trustees, noting their poor cooperation and the excessive time taken to administer the estate.

The applicant brought a motion to remove the respondent as Power of Attorney for Property for their incapable father, citing the respondent's failure to provide proper accounts and receipts.

The court found strong and compelling evidence of neglect, as the respondent repeatedly failed to follow court orders to produce supporting documentation for expenditures.

The court terminated the respondent's power of attorney and appointed the applicant as Guardian for Property, subject to conditions preventing the father's removal from his current long-term care facility without further court approval.

To facilitate the transition, the court passed the respondent's disorganized accounts without requiring further submissions.

The court determined the costs of an application to wind-up two corporations and a related action, following years of protracted and bitter litigation.

The applicants were largely successful and sought enhanced costs, including against a non-party shareholder.

The court awarded substantial indemnity costs for several motions due to the respondents' vexatious and obstructive conduct.

The court also awarded costs to a self-represented litigant for time spent performing work ordinarily done by a lawyer.

The non-party shareholder was held jointly and severally liable for a portion of the costs in the action due to her unreasonable refusal of settlement offers.

The estate trustee brought a motion to approve the passing of accounts for an estate.

The responding parties challenged the legal fees claimed by the trustee's counsel for estate administration, the trustee's claim for compensation, and sought their own legal fees.

The court found the estate was not complex and reduced the trustee's legal fees significantly, denying the claim for legal assistant time and reducing the lawyer's time.

The court also denied the trustee's claim for compensation, finding the work was performed by the law firm.

The responding parties' legal fees were approved to be paid from the estate, and they were awarded costs of the motion payable by the trustee.

The applicant, an estate trustee, sought costs following a successful motion for directions regarding the sale of an estate property to the respondent beneficiaries.

The court applied the modern approach to estate litigation costs, emphasizing the 'loser pays' principle to discourage treating the estate as an ATM for litigation.

The court awarded the applicant partial indemnity costs of $3,500 payable by the respondents, and a further $5,000 payable by the estate to fully indemnify her reasonable costs as trustee.

Following the dismissal of the applicants' motion for an interlocutory injunction under the oppression provisions of the Business Corporations Act, the parties made written submissions on costs.

The applicants argued they were justified in bringing the motion and sought their own costs despite being unsuccessful.

The court rejected this argument, finding no reason to depart from the usual rule that costs follow the event.

The court awarded the successful respondents their costs on a partial indemnity basis, fixed at $2,750 for fees plus HST and $175.56 for disbursements.

At a status hearing, the court considered whether to dismiss the plaintiffs' action for delay under Rule 48.14(1) of the Rules of Civil Procedure.

The action, which involved a shareholder dispute, had been commenced in 2012 and was inextricably linked to a separate application to wind up the corporations.

The court found that the plaintiffs failed to provide a reasonable explanation for the delay, having made a strategic decision to await the outcome of the application before proceeding with the action.

Finding that the defendants would suffer prejudice if the action proceeded, the court dismissed the action for delay.

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.