Morris James Holervich

Application concerning the passing of accounts of an attorney acting under a continuing power of attorney for property under the Substitute Decisions Act.

The attorney transferred substantial funds from the incapable person's accounts into a personal PayPal account, failed to maintain proper accounting records as required by regulation, and used estate funds to pay for personal expenses, claiming them as compensation.

The court found several breaches of statutory duties, including inadequate record-keeping and improper methods of taking compensation, though the incapable person's financial well-being was not materially harmed.

Exercising its discretion on a passing of accounts, the court reduced the attorney’s compensation and ordered repayment of a portion of the funds taken.

The attorney was required to repay $10,000 to the estate while the accounts were otherwise passed.

The municipality brought a motion seeking dismissal of a counterclaim for delay arising from alleged flooding and property damage related to road drainage work.

The counterclaiming party had failed to comply with a status hearing timetable requiring agreement on a discovery plan and delivery of an affidavit of documents.

Applying Rule 48.14 of the Rules of Civil Procedure, the court held it had jurisdiction to dismiss the counterclaim on motion for non‑compliance with a timetable arising from a status hearing.

The counterclaiming party failed to provide a reasonable explanation for the prolonged delay and did not establish that the moving party would suffer no non‑compensable prejudice.

The court dismissed the counterclaim for delay.

The plaintiff managed a resort under an oral commission-based agreement and sued following termination of the relationship.

The court determined the plaintiff was an independent contractor rather than a dependent contractor and therefore not entitled to reasonable notice of termination.

The defendants breached the agreement by failing to pay commissions on revenues received prior to termination, and were also liable for modest damages for conversion of personal property and for unjust enrichment relating to additional services performed as the defendants’ de facto Canadian agent.

The court rejected claims for further commissions, punitive damages, and most conversion damages.

The defendants succeeded on a counterclaim for possession of two boat motors.

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.

The moving defendants sought leave to appeal to the Divisional Court from an interlocutory order dismissing their motion to strike the statement of claim for disclosing no reasonable cause of action and for containing allegedly scandalous or vexatious material.

The court applied the leave test under Rule 62.02(4) of the Rules of Civil Procedure and s. 19(1)(b) of the Courts of Justice Act.

While the moving parties argued that the motion judge misapplied established pleading principles, the court held that the issues raised were confined to the interests of the parties and did not involve matters of broader importance warranting appellate review.

The court concluded that the case concerned a routine pleadings determination and that the second requirement for leave—matters of sufficient importance—was not met.

Leave to appeal was therefore refused.

Following the dismissal of a motion by certain defendants to strike the statement of claim, the court addressed the plaintiffs’ entitlement to costs.

The plaintiffs sought substantial indemnity costs based on a rejected settlement offer made prior to the motion.

The court held that while the plaintiffs were entitled to costs as the successful parties, the complexity of the case and the reasonableness of bringing the pleadings motion did not justify substantial indemnity.

Considering the scope of the motion materials and the time required for the hearing, the court reduced the claimed amount.

Costs were awarded on a partial indemnity basis in the amount of $5,000 inclusive of HST, payable forthwith by the moving defendants.

The defendants brought a motion under Rule 21.01(1)(b) of the Rules of Civil Procedure to strike the plaintiffs’ statement of claim on the basis that it disclosed no reasonable cause of action, or alternatively to strike portions alleged to be scandalous, frivolous, or vexatious under Rule 25.11.

The claim alleged that the defendants conspired to remove the plaintiffs from corporate control and divert the business of two companies to another entity controlled by the defendants.

The court held that, assuming the pleaded facts to be true, the statement of claim disclosed multiple viable causes of action including breach of contract, breach of fiduciary duty, unjust enrichment, inducing breach of contract, civil conspiracy, and breaches of corporate duties.

The court also declined to strike contextual narrative allegations from the pleading, finding they were not so egregious as to warrant removal.

The motion was dismissed, with the court noting that a demand for particulars would have been the more appropriate procedural step.

The plaintiff brought a motion for leave to extend the time for serving a Notice of Appeal and Certificate Respecting Evidence following a Small Claims Court decision dismissing his property damage claim.

The delay in service was primarily caused by the court sending an unsigned, undated copy of the decision, followed by a delayed signed copy.

The Divisional Court granted the motion, finding that the plaintiff formed the intent to appeal in time, the 14-day delay was largely the court's fault, there was no prejudice to the defendant, and the justice of the case favoured granting relief.

No costs were awarded.

A commercial tenant applied under s. 20 of the Commercial Tenancies Act for relief from forfeiture after the landlord re‑entered the leased restaurant premises for non‑payment of rent.

The court considered the equitable principles governing relief from forfeiture, including the landlord’s prior acceptance of late rent payments and the absence of notice insisting on strict compliance.

Although the tenant admitted arrears for several months of rent, the court held that persistent late payment did not preclude equitable relief where the landlord could be compensated.

The existence of a pending sale of the property to a purchaser seeking vacant possession was not a sufficient intervening interest to defeat the tenant’s claim.

Relief from forfeiture was granted on conditions requiring payment of arrears, utilities, and agreed costs.

Following the dismissal of the appeal, the parties made written submissions on costs.

The respondent sought costs on a full indemnity basis, which the court rejected, awarding partial indemnity costs of $6,209.88.

Both parties also sought costs for the earlier motion for leave to appeal, on which the appellants had been successful.

The court found that due to divided success between the leave motion and the appeal, no costs should be awarded for the leave motion.

The appellant appealed a decision finding its claim for recovery of repair costs for a deficient sewer system was statute-barred.

The Court of Appeal agreed that the essence of the claim was a breach of duty in 1986 requiring repairs in 2003, and found no basis to interfere with the lower court's decision.

The appeal was dismissed with costs awarded to the respondent.

The defendants appealed a motion judge's decision dismissing their application for security for costs and awarding substantial indemnity costs against them.

The defendants argued the corporate plaintiff failed to prove impecuniosity because it did not provide evidence that its creditors refused to fund the litigation.

The Divisional Court dismissed the appeal, holding there is no absolute requirement in every case for a plaintiff to show creditors declined to fund the litigation to establish impecuniosity.

The court also upheld the motion judge's findings on the merits of the claim and the costs award.

The defendant municipality brought a motion for summary judgment to dismiss the plaintiff's action regarding sewer system issues.

The plaintiff conceded its existing claims but sought to amend its statement of claim to add causes of action in negligence and negligent misrepresentation.

The court found that the plaintiff discovered the alleged negligence by late 2003 when it began constructing its own sewage lift station.

The court rejected the plaintiff's argument that the negligence was a continuing cause of action.

As the limitation period had expired, the proposed amendments were statute-barred, constituting non-compensable prejudice.

The motion to amend was denied and the action was dismissed.

The appellant, a minority shareholder, appealed the dismissal of his application for an oppression remedy under s. 248 of the Business Corporations Act.

He alleged that the majority shareholder acted oppressively by selling the corporation's sole asset to a family trust without adequate financial disclosure or an open market sale.

The majority of the Divisional Court dismissed the appeal, finding no palpable and overriding error in the application judge's conclusion that the sale was advantageous to the corporation and that the appellant's expectations were unreasonable.

A dissenting judge would have allowed the appeal, finding the majority shareholder's self-dealing and lack of disclosure constituted oppression.

The plaintiffs initially sued for repayment of loans and on a guarantee.

At trial, the plaintiffs argued breach of contract for the purchase of shares.

The trial judge granted judgment to the plaintiffs based entirely on provisions of the Ontario Business Corporations Act (OBCA) relating to share transfers, despite the plaintiffs expressly disavowing any remedy under the OBCA.

The Court of Appeal allowed the appeal, finding it was a breach of natural justice to grant judgment on a basis not pleaded or argued.

A new trial was ordered because the Court of Appeal could not make the necessary findings of fact regarding the contract terms or damages.