Morris James Holervich

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.

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 moving parties sought to review an order of a single judge dismissing their motion to extend the time to perfect their appeal.

The motion judge had dismissed the extension request on the basis that the appeal lacked merit.

The Court of Appeal held that because no formal judgment had been taken out from the underlying application, it was not possible to properly assess the merits of the putative appeal.

The court set aside the single judge's order without prejudice to the moving parties' right to renew their motion for an extension of time once the formal judgment is filed.

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.

Following the intestate death of the deceased, his common-law spouse and children disputed the distribution of his estate.

The children claimed their share as beneficiaries, while the spouse argued the children had gifted their shares to her or, alternatively, that she was entitled to dependant support.

The court found that the children had made a valid inter vivos gift of the family home to the spouse, but not of the deceased's personal property or RRSPs.

The court also awarded the spouse dependant support under the Succession Law Reform Act, fixed at 50% of the deceased's personal property, with the residue to be shared equally among the children.

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.

Following the dismissal of an application for a vesting order regarding a 25% interest in a home, the court determined the issue of costs.

The respondents sought substantial indemnity costs of $9,000.57, while the applicant argued costs should be paid from the estates or not at all.

Applying the modern approach to estate litigation costs, the court held that the 'loser pays' principle applied, as the litigation did not arise from the testators' actions or to ensure proper administration.

The applicant was ordered to pay the respondents' costs on a partial indemnity basis, fixed at $4,750 plus disbursements and HST.

The plaintiff builder brought an action seeking payment for amounts allegedly owing under a residential construction contract.

The defendants’ statement of defence had previously been struck and the counterclaim dismissed, resulting in an undefended trial proceeding only against one defendant after the other declared bankruptcy.

Evidence established the contractual terms, invoices issued, and credits for payments already made to the plaintiff and third parties.

The court accepted the plaintiff’s evidence and found the outstanding balance owing under the contract to be $206,910.74.

Judgment was granted for that amount with prejudgment interest and costs.

The applicant, an estate trustee and beneficiary of a 25% interest in a home, applied for an order vesting his interest or compelling the respondent estate trustees to sell the home.

The home was subject to a life interest granted to another beneficiary under a related estate.

The respondent estate trustees relied on their discretionary power under the wills to postpone the sale of the property.

The court dismissed the application, applying the Court of Appeal's decision in Di Michele, holding that the estate trustees' power to postpone the sale ousted the three-year vesting rule under section 9 of the Estates Administration Act, and their decision to allow the life interest to continue was a valid exercise of discretion.

In a costs decision following a civil trial arising from an unpaid commission dispute, the court considered proportionality, the parties' relative success, and their litigation conduct.

The plaintiff recovered modest damages while the defendants abandoned most of a substantial counterclaim during trial.

The court held that both sides had taken unreasonable positions and had escalated the litigation beyond what was at stake, but found the plaintiff was proportionately more successful.

Rejecting the request for substantial indemnity costs, the court fixed costs in the plaintiff's favour at $25,000 inclusive.

The appellant appealed an order of the Superior Court of Justice that incorporated a settlement agreement.

The Court of Appeal noted that the appellant had agreed to the terms of the settlement and later affirmed them before the lower court judge.

Finding nothing unconscionable about the agreement on the record, the Court of Appeal concluded there was no basis to interfere and dismissed the appeal with no costs.

Following a trial concerning a passing of accounts relating to the estate of a deceased person, the successful objector sought over $87,000 in costs on a full indemnity basis.

The court emphasized that costs are discretionary and guided by proportionality under Rule 57.01 of the Rules of Civil Procedure.

Although the objector had succeeded in requiring repayment of $10,000 and a reduction in compensation claimed by the estate trustee, the court found the requested costs grossly disproportionate to the amounts at issue and the manner in which the litigation was conducted.

The proceedings involved limited witnesses, no discoveries, and inefficiencies arising from personal family disputes.

The court therefore fixed modest costs to reflect proportionality and the limited financial stakes of the litigation.

Applicants sought a declaration under the Substitute Decisions Act, 1992 that the respondents had effectively resigned as attorneys for property and personal care under powers of attorney granted by the grantor.

The respondents had signed a resignation notice stating that the resignation would become effective when delivered to the grantor and her five children, but the notice was not delivered to all of them.

The court considered the statutory framework governing resignation of attorneys under ss. 11 and 52 of the Act and the evidence regarding whether the attorneys had acted under the powers.

The court held that, regardless of statutory conditions, the respondents imposed their own express condition in the resignation document requiring delivery to all five children.

Because that condition was not satisfied, the resignation was ineffective.