COURT FILE NO.: 01-CV-18977

DATE: 2013/02/04

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICK DEWAN, DOMICILE DEVELOPMENTS INC. 1436984 ONTARIO LTD., AMIRA GABRIEL, 1496055 ONTARIO INC. 117490 CANADA LTD., and the ESTATE OF SHEILA EBERTS

Plaintiffs

– and –

CLAUDE ALAIN BURDET, in trust

Defendant

Kenneth Radnoff, David Dwoskin, Jonathan Collings, for the Plaintiffs

Claude-Alain Burdet, for the Defendant

Gary Boyd, for the Administrator

HEARD: January 23, 2013

REASONS on motion to set aside registrar’s dismissal

kane j.

[1] The court appointed Administrator and the plaintiffs each bring a motion to rescind the Dismissal Order of this action made by the Registrar on December 31, 2012 (“Dismissal Order”). It was obtained by requisition filed that same day by the defendant.

DISMISSAL ORDER

It states:

ON READING the order of Justice Kane issued at paragraph 13 of His Honour’s endorsement dated August 1 2012, and

UPON NOTING THAT this action has not been set down as of 31 December 2012,

IT IS ORDERED THAT this action be dismissed.

BACKGROUND

[2] Master Roger by endorsement dated January 19, 2011 extended the time to set this action down for trial to December 30, 2011.

SEPTEMBER 30, 2011 REASONS

[3] This court in its September 30, 2011 reasons in this action dismissed a motion by the defendant to dismiss the plaintiffs’ action for delay. The court in those reasons found inexcusable delay by the plaintiffs but also by the defendant. The court stressed the necessity that the action and counterclaim be brought to trial without further delay and urged [147] other judicial officers as part of case management, require that the claim and counterclaim be set down for trial, with an early trial date if possible.

MASTERS’ ORDER TO SET DOWN FOR TRIAL

[4] The defendant appealed this court’s September 30, 2011 decision rejecting the defendant’s motion to dismiss this action for delay. Due to this appeal, Master Roger by endorsement dated February 15, 2012, extended the time to set this action down for trial to February 28, 2013.

[5] That endorsement states:

1. Time under Rule 48 is hereby extended to February 28, 2013, by which time this action shall be set down for trial.

2. The parties shall schedule a further case conference if the above needs to be re-visited considering the time required to exhaust the appeal process.

[6] The defendant’s appeal of the rejection of its motion to dismiss this action for delay was unsuccessful.

AUGUST 1, 2012 ENDORSEMENT

[7] The plaintiffs brought a motion to amend the statement of claim, for a court ordered discovery plan and to allow their expert to inspect some premises within this condominium building. As demonstrated by the relief requested, the parties and their counsel can agree on little in this and companion proceedings between them. The court was surprised to see by this motion that notwithstanding the urgency expressed in its September 30, 2011 reasons to have the action set down for trial, examinations for discovery had not been conducted one year later.

[8] This court adjourned the plaintiffs’ motion to amend the claim as the draft amended statement of claim required amendment. The court however ordered a discovery plan and set dates to conduct and complete the discoveries in this action.

[9] This August 1, 2012 endorsement states:

[10] Examinations for discovery herein are to be completed by October 16, 2012. …

[11] Any motions regarding such examinations for discovery, including any re-attendance to complete discovery, must all be completed no later than December 16, 2012.

[13] Although not part of a discovery plan, this Court relies upon its inherent jurisdiction to regulate actions before this Court and orders that the claim and counterclaim must be set down for trial no later than December 29, 2012, failing which such claim or counterclaim shall be dismissed. (Emphasis added)

[10] Counsel had no input to the provisions of paragraph 13. The provisions and date therein were not discussed or the subject of submissions on this motion, contrary to the suggestion otherwise in the affidavit of L.A. Burdet dated January 9, 2013. This court unilaterally selected December 29, 2012, and what would occur due to concern as to continuing delay in this action.

[11] In requiring that this action must be set down by December 29, 2012, this court was then unaware of the Master’s prior order requiring the parties to set this action down by February 28, 2013.

[12] A formal order of this August 1, 2012 endorsement was taken out. That order incorporates the provisions as to discovery and property inspection. It does not however include the above requirement that the claim and counterclaim must be set down for trial by December 29, 2012.

DECEMBER 17, 2012 MOTION - ENDORSEMENT AMENDING STYLE OF CAUSE

[13] The plaintiffs renewed their motion to amend the statement of claim which was argued December 17, 2012. Three parties were added as plaintiffs, four as defendants and two named defendants were removed as parties.

[14] The defendants, were unsuccessful in adding several parties as defendants by counterclaim given the absence of a cross-motion and notice.

[15] Argument of this motion was not recorded. The endorsement by the court is handwritten. It was made as argument proceeded as to the addition and deletion of parties.

[16] Evidence on the present motion as to what occurred during argument on December 17, 2012, consists of affidavits from counsel present that day, from a legal assistant based on information from counsel present and handwritten notes made by Luc Andre Burdet, son of counsel for the defendants who was present. This court has in addition its notes and recollection of what occurred during the December 17, 2012 motion.

[17] On December 17, 2012, the plaintiffs had two counsel in attendance on the motion, Messrs. Dwoskin and Collings. Mr. Dwoskin presented the plaintiffs argument. Early during his submissions, the court asked whether the claim and counterclaim had been set down for trial. Plaintiff counsel advised that that had not yet occurred.

[18] The court was provided with the Master’s order requiring that the action be set down for trial by February 28, 2013. That was this court’s first knowledge of this order. Counsel for the defendant advised the court that the August 1, 2012 endorsement reduced the time to set the action down from February 28, 2013 to December 29, 2012. Mr. Dwoskin interjected and indicated the plaintiffs were seeking an extension of time to set the action down for trial. This court responded that the plaintiffs could make that argument during his reply submissions when matters of scheduling would be dealt with.

[19] Argument proceeded as to the addition or deletion of parties. Some additions and deletions were made on consent. The court announced its decision as to an addition or deletion as presented and argued.

[20] Counsel for the Administrator attended midway through the December 17, 2012 motion at the request of this court. CCC 396 was one of the parties sought to be added on this motion but was not represented or in attendance on the motion. One central issue in the statement of claim is the allegation that the defendant inappropriately caused money belonging to the condominium corporation to be paid to Mr. Burdet or entities to which he is related or controls. The plaintiffs seek in their claim repayment of that money to CCC 396. CCC 396 is a legal entity and has an interest independent of the majority and minority unit owners who were the original parties to this action. The court during argument of the December 17, 2012 motion asked whether CCC 396 should be added as a defendant as proposed or as a plaintiff. This question led to the attendance on the motion by Mr. Boyd as counsel for the Administrator which, under the interim order, has full management of CCC 396.

[21] During the plaintiffs reply submissions, Mr. Dwoskin addressed the issues raised as to the limitations if any to be placed on the addition of Mr. C.-A. Burdet, as a defendant. Mr. Dwoskin thereupon called upon Mr. Collings to address the court regarding an extension of time to set the claim and counterclaim down to trial.

[22] The notes of L.A. Burdet, as filed, do not record Mr. Collings asking for a three month extension, or any specific extension. The notes record this court announcing that it had ordered the set down date would remain December 29, 2012 and must be complied with. His notes as to an extension then stop. That is not an accurate record of what happened and what was said.

[23] Mr. Collings requested that the date by which the action should be set down should be extended three months because of the addition of several parties as ordered on this motion. This court was surprised by this submission and interpreted it as a request to extend the time by three months beyond February 28, 2013 as ordered by the Master, namely until May 30, 2013. The court immediately rejected this request as unreasonable notwithstanding the addition of parties because of the historical delay. No reasons were given for rejecting that request other than that was too long.

[24] The court thereupon advised that the claim and counterclaim must be set down by February 28, 2013 and thereby amended the December 29, 2012 date in the endorsement of August 1, 2012. The court chose that later date as it was previously ordered by the Master. The court was also of the opinion that February 28, 2013 allowed sufficient time to complete the work necessary to have the matter set down.

[25] In arriving at the conclusion to extend the December 29, 2012 date, this court was cognizant that it was then December 17, 2012. That left little time given the upcoming holidays to issue the amended claim, an amended defence, an amended counterclaim and any defence to counterclaim and then set the claim and counterclaim down for trial. Rule 48.01 provides that an action can be set down after the close of pleadings. A trial record, containing all pleadings must be served and filed in order to set an action down as provided in Rule 48.02 and Rule 48.03. Given the addition of new parties on December 17, 2012, and their time under the rules to file a pleading, this court was then of the opinion that it was unreasonable to expect that all of these steps would occur by December 29, 2012, given the intervening holidays.

[26] The court was then of the opinion that the above remaining steps could occur however by February 28, 2013 and that date would maintain the pressure on the parties to set this action down for trial. The court also considered the fact that it had unilaterally selected the date of December 29, 2012, without input from the parties and without knowledge of the February 28, 2013 date set by the Master.

[27] L.A. Burdet incorrectly alleges in his affidavit that this court never advised the parties during argument of this motion that the December 29, 2012 date was extended to February 28, 2013. That is incorrect. The affidavits of the moving parties confirm that this court communicated its decision during argument on December 17, 2012 that the claim and counterclaim would have to be set down no later than February 28, 2013.

[28] The affidavits filed on this motion by the moving parties state that Mr. Collings asked this court to extend the time to March 31, 2013. Mr. Collings asked for a three month extension. The court has no recollection of counsel asking for an extension to March 31, 2013. It is noted however that March 31, 2013, is approximately three months after December 29, 2012. Mr. Collings may have intended to ask for an extension to that date however this court recalls specifically a request for a three month extension and understood that was three months beyond February 28, 2013.

[29] The above extension request and ruling occurred during reply argument by the plaintiffs.

[30] At the end of argument, the court read to counsel its written endorsement. That endorsement regrettably makes no mention of the extension of the date to set down the claim and counterclaim to February 28, 2013. Counsel made no comment as to this omission. That concluded the December 17, 2012, motion.

[31] Counsel for the plaintiffs on December 24, 2012, distributed a draft order for approval to reflect the December 17, 2012 endorsement. That draft order makes no mention of the court’s extension of the date to February 28, 2013. That order was not approved by the defendants or issued.

REQUISITION TO REGISTRAR TO DISMISS ACTION

[32] Counsel for the defendants on December 31, 2012 filed a requisition and a draft Dismissal Order with the Registrar. There was no prior service thereof on the plaintiffs or the Administrator.

[33] The requisition to the Registrar, filed December 31, 2012 states:

I REQUIRE that the enclosed draft dismissal order be issued and entered forthwith, pursuant to the order of Justice Kane stated at paragraph 13 of His Honour’s August 1 2012 endorsement attached as Exhibit A to the present requisition.

[34] The Dismissal Order was signed by the Registrar on December 31, 2012.

[35] Counsel for the defendants faxed a copy of the above requisition and draft dismissal order to counsel for the plaintiffs on December 31, 2012, at 16:49 hrs. A copy of the same was not sent to counsel for the Administrator. Counsel for the Administrator and the plaintiffs are members of the same law firm. That law firm in any event was closed at that time, it being almost 5 P.M. on New Year’s Eve. Pursuant to Rule 16.05 (1) (d) of the Rules of Civil Procedure, R.R.O. 1990, Reg, 194, service thereof was not effective until the following day which would be January 2, 2013.

[36] During argument on January 23, 2013, and in response to a question from this court, counsel for the defendants explained that there was no obligation to serve the above requisition and draft Dismissal Order on opposing counsel before submitting the requisition to the Registrar. Defence counsel stated that he simply wanted the other parties to know what was about to happen. Undoubtedly the defendants knew prior to 16:45 on December 31, 2012 that they intended to seek a Dismissal Order that day.

[37] Defence counsel further stated that he feared the plaintiffs would attend and set their claim for trial at the last moment on the eve of December 31st. Accordingly a representative from his office attended the Registrar’s office on December 31, 2012 with two bundles of document; the first being the requisition and draft Dismissal Order. Defence counsel stated that the second pile of documents included the plaintiffs draft amended statement of claim from their motion record and it would be filed to prevent dismissal if the plaintiffs appeared at the last moment to set their claim down for trial.

[38] This court has difficulty with the above explanation.

[39] The August 1, 2012 endorsement required the claim and counterclaim to be set down or dismissed by December 29, not December 31, 2012.

[40] The defendants in addition had not approved the plaintiffs’ draft December 17, 2012 order adding and deleting parties. Without that order being issued, even the draft amended claim contained in the plaintiffs’ November 17, 2012 motion record could not be filed as Mr. Burdet suggests was his alternative intention. It would be unusual for counsel for one party to file a draft amended pleading of the other party without consent.

[41] The defendants may have been unsure on December 31, 2012, whether notice should be provided prior to obtaining the Dismissal Order and of the opinion that that late notice was better than no notice. The defendants’ position on this motion however is that no notice was required.

[42] In any event, the Dismissal Order was obtained ex parte.

[43] Counsel for the Administrator became aware on January 2, 2013, of a package of documents distributed to unit owners. It contains minutes of a December 31, 2012, Board of Directors meeting of CCC 396 advising that this action has been dismissed, that the Administrator’s court appointment had ended, the resumption of management by the Board of Directors, termination of the lawyers for CCC 396 with instructions that they consent to an adjournment of the resumption of the trial by CCC 396 against Mr. Burdet scheduled to resume on February 25, 2013 and the creation of a new budget for CCC 396. These minutes show the Directors at this meeting of CCC 396 as C.-A. Burdet who is counsel for the defendants, L.A. Burdet and Janet Burdet.

[44] At the request of counsel for the Administrator on January 2, 2013, this court on January 4, 2013 conducted a telephone case conference with all counsel. The Administrator in his letter on January 2, 2013, advised that he wished to bring an immediate motion to set aside the Dismissal Order. On January 4, 2013, the Administrator confirmed his intention to bring such a motion and that he would be supported therein by the plaintiffs. The defendants advised they would be presenting a cross-motion. Dates were set on January 4, 2013, to serve materials and to argue this motion.

[45] The cross-motion on January 23, 2013, was adjourned as the time available did not permit argument of the two motions by the Administrator and the plaintiffs and the cross- motion. In addition, a decision first had to be made whether to set aside the Dismissal Order since if that relief was rejected, there might not be an action within which the cross- motion could be decided.

POSITION ON THE MOTIONS ARGUED

[46] The moving parties seek to set aside the Dismissal Order because:

1. The Registrar had no jurisdiction to sign the Dismissal Order on December 31, 2012 and it is therefore invalid.

2. The Dismissal Order is unclear as to whether the claim, the counterclaim or both are dismissed.

3. The failure of the defendant to disclose to the Registrar on December 31, 2012 that the time had been extended by this court on December 17, 2012 constitutes a material non-disclosure or misstatement of the facts justifying setting the Dismissal Order aside.

4. The plaintiffs on their motion adopted the argument of the Administrator and requested the Dismissal Order be set aside.

[47] The defendants presented a number of objections to the two above motions, namely:

1. This court lacks jurisdiction to decide the above motions as the Dismissal Order is an order of a judge, is not an order under R. 37.14 (1) and must be heard by an appellant court.

2. The Administrator is not a named party in this proceeding and therefore lacks status to bring a motion to set aside the Dismissal Order.

3. The plaintiffs’ notice of motion is dated January 10, 2013 and therefore was not brought quickly enough after the Dismissal Order came to their attention.

4. The two motions seeking to strike the Dismissal Order are duplicitous, could lead to contradictory results and cannot therefore both proceed.

[48] The defendants on January 23, 2013, sent to this court a draft order dismissing this action which they requested the court sign. That draft order recites paragraph 13 from the August 1, 2012 endorsement and then provides that the action be dismissed as of December 30, 2012, for failure to set it down by December 30, 2012. That draft order is unnecessary if this court does not strike the Dismissal Order and contradicts the extension of time to February 28, 2013.

ANALYSIS

COURT’S JURISDICTION TO DECIDE THESE MOTIONS

[49] The August 1, 2012, endorsement states the claim and counterclaim will be dismissed if not set down by December 29, 2012. The order reflected in that endorsement did not dismiss the claim or counterclaim on August 1, 2012. The Dismissal Order takes a next step and dismisses the action. The Dismissal Order is not, as argued by the defendant, an order of a judge. It is an order of the Registrar.

[50] The Administrator and the plaintiffs are affected by the Registrar’s Dismissal Order as provided for under Rule 37.14 (1) (c). Based on my decision below as to the Administrator, they each may move to set the Dismissal Order aside under Rule 37.14 (3), before a judge of this court.

[51] This objection to jurisdiction is dismissed.

ADMINISTRATOR’S STANDING

[52] The Administrator brings this motion as the 2002 interim court appointed Administrator of the condominium corporation, CCC 396. This is not a motion brought by CCC 396 although that corporation is now a party defendant to this claim.

[53] The Dismissal Order potentially terminates the court’s appointment of the interim Administrator.

[54] Court appointed Administrators, Receivers, Inspectors or Monitors normally are not a named party to the action in which they are appointed. Such court appointed officers frequently however bring motions in those actions to seek directions, pass accounts, seek approval of proposed sale of assets, and to report. Often these tasks are reflected in their powers and duties. Such court appointments would be frustrated if those appointed officers did not have standing to bring matters before the court.

[55] Court appointed officers are answerable to the court for their actions regarding the subject of their appointment. Given the decision of this court on December 17, 2012, extending the time, it would have been improper for this Administrator to have remained silent in the face of the advice of the Board to unit owners that its appointment was terminated by the Dismissal Order and the resumption of the trial by CCC 396 against Mr. Burdet in trust, to recover unpaid condominium fees would be halted.

[56] The powers of this Administrator state it is to manage the affairs of this condominium corporation. Without limitation, its specified powers include in paragraph 3(u), the power to “take any steps reasonably incidental to these powers.” The powers in paragraph 3 in any event are incidents of power but are not all inclusive.

[57] If the Administrator, as in this case, is concerned that some unit owners, or the Board, are attempting by misstatement to defeat the appointment of a court officer, to interfere in collection proceedings to recover debts allegedly owed by other unit owners, it is fully within the powers of that court officer to apply to the court for a determination as to its status and take a position in relation thereto. The court does not appoint officers of the court and then expect them to remain silent in the face of actions by a party to terminate that appointment. Taking a position herein is not, as argued, a breach of the officer’s responsibility to remain independent and neutral between the unit owners.

[58] The Administrator is impacted by the Dismissal Order and as such, has standing to bring its motion herein. This preliminary objection is dismissed.

TIMELINESS OF PLAINTIFFS’ MOTION

[59] The motion by the plaintiffs to set aside the Registrar`s order is dated and was served on January 10, 2013.

[60] During the case conference conducted with this court on January 4, 2013, to fix a date for argument as to whether the Dismissal Order should be set aside, the defendants were advised that the Administrator was to bring such a motion and that the plaintiffs would be supporting that position. The Administrator’s motion seeking that relief is dated January 3, 2013, and was served on the defendants on or about that date.

[61] The plaintiffs’ motion seeks the same relief as requested by the Administrator and relies upon the same grounds. The defendants were told during the case conference on January 4, 2013, that the plaintiffs would be supporting the Administrator in asking that the Dismissal Order be set aside. Formalizing the plaintiffs’ support of the Administrator`s motion to set aside with a mirror notice of motion served within 10 days after the Dismissal Order on these facts is not undue delay, a surprise or prejudicial to the defendants.

[62] The defendants have presented no authority that service of the plaintiffs’ motion eight days after the Dismissal Order came to their attention is unacceptable, particularly given the case conference on January 4, 2013.

[63] The plaintiffs have standing as they are directly affected by the Dismissal Order.

[64] The defendant’s objection on this ground is denied.

POTENTIAL OF CONTRADICTORY RESULTS

[65] There is not merit that one of the two motions should be dismissed or stayed due to the potential of conflicting decisions.

[66] The potentials are that both motions are denied, both are granted or one is denied and the other is granted. The last of these possibilities could arise for several reasons without creating conflicting results.

[67] The two motions each seek the identical relief and present the identical argument. Counsel for the plaintiffs’ submissions consisted of stating his clients adopted the submissions made by counsel for the Administrator.

[68] This objection is denied.

ARGUMENTS OF THE MOVING PARTIES

WAS CLAIM OR COUNTECLAIM DISMISSED?

[69] The Registrar as requested by the defendants dismissed the action.

[70] An action under Rule 1.03(1) includes a proceeding commenced by a statement of claim and by a counterclaim. The defendants submit there is only one action in this case as this counterclaim was not commenced by an “originating process” as defined under Rule 1.03.

[71] This court in settling the powers and duties of the Administrator ordered on April 3, 2012, that CMG was to continue as interim Administrator until further court order. At that time, there was both a claim and counterclaim in this action.

[72] Unlike the court’s August 1, 2012 endorsement, the Dismissal Order does not distinguish between the claim and the counterclaim and merely states the action is dismissed.

[73] Counterclaims are independent actions that generally are tried with the main action unless to do so would unduly complicate, delay or prejudice the main action, see: Baig v. Guarantee Co. of North America, 2007 ONCA 847, [2007] O.J. No, 4727, para. 30 (Ont. C.A.), leave to appeal refused [2008] S.C.C.A. No. 44 (S.C.C.). The Court of Appeal in arriving at this conclusion, also relied upon the wording of Rule 27.08.

[74] The fact that this counterclaim was against existing parties only, it was not necessary to issue a separate originating process. The absence of a second originating process does not however change the above principle that this claim and counterclaim are independent actions.

[75] The Dismissal Order, prepared by the defendants, refers in the singular to the dismissal of the action. It does not differentiate between the claim and counterclaim. The Registrar did not therefore terminate one of these two actions. One of them was not dismissed under the Dismissal Order. Which one remains is unknown.

[76] There is an error on the face of the Dismissal Order.

ERROR IN OBTAINING DISMISSAL ORDER

[77] In these proceedings, the jurisdiction of the Registrar to dismiss is contained in Rules 37.02(3) and 48.14 and 48.15.

[78] Rule 48 is inapplicable.

[79] The defendants did not have the consent of the plaintiffs to the Dismissal Order thereby depriving the Registrar of jurisdiction under Rule 37.02(3).

[80] The August 1, 2012 endorsement of this court contains no direction or order to the Registrar.

[81] The August 1, 2012 endorsement stating that the claim and counterclaim shall be dismissed if not set down by December 29, 2012, was never issued and entered as a formal order. Such an order is exactly what the defendants now ask this court to sign given the unwillingness of the plaintiffs to approve the same. Obtaining the plaintiffs consent to such an order or making an appointment to settle and sign an order to dismiss is what the defendants should have done under Rules 59.03 and 59.04, rather than attending ex parte before the Registrar.

[82] The defendants simply argue that the wording of paragraph 13 of the August 1, 2012 endorsement is clear thereby eliminating the necessity to comply with Rules 59.03 and 59.04. The wording is clear. That does not avoid compliance with these rules when the defendant knew the wording of the Dismissal Order was/would be contested by the plaintiffs.

DISCLOSURE TO REGISTRAR

[83] The defendants failed to advise the Registrar on December 31, 2012, that the court on December 17, 2012, had amended paragraph 13 of its August 1, 2012 endorsement by extending the time to set down the claim and counterclaim to February 28, 2013. This is a material misstatement leading to the Dismissal Order.

[84] As officers of the court and pursuant to the Rules of Professional Conduct of the Law Society of this Province, counsel have an obligation to not misstate the facts about or status of court orders. The Registrar would not have signed the Dismissal Order if advised of the court’s extension of time to February 28, 2013.

FAILURE TO DEMONSTRATE LACK OF DELAY, INADVERTENCE, MOVING PROMPTLY AND PREJUDICE

[85] The Administrator and the plaintiffs did not present evidence or argument on the above four factors articulated in Reid v. Dow Corning Corp., [2001] O.J. 2365, (S.C.J.). The defendants argued that this failure should result in the dismissal of these motions.

[86] None of the cases relied upon by the defendants involving the Reid factors involve a Dismissal Order being granted in error, namely prior to the expiry of a time limit to set the actions down for trial and are not accordingly applicable.

[87] To place the onus created by the Reid factors on the moving party, on the facts of this case, would encourage non-disclosure by a party moving ex-parte to obtain a dismissal order and then shield that conduct through imposition of the Reid burden. That is a misinterpretation of what the courts intended in development of these factors.

[88] Without qualifying the above conclusion; as to delay and prejudice, the following should be noted.

[89] This court in its September 30, 2011, reasons rejected the defendant’s motion to dismiss this action for delay and/or set aside the order of Lalonde J. appointing an interim Administrator of CCC 396. The court faulted both parties for delay in its decision. The defendant’s appeal thereof was unsuccessful.

[90] Master Roger on February 15, 2012, extended the time to set this action down for trial to February 28, 2013 to permit the hearing of that appeal.

CONCLUSION

[91] For the above reasons, the Dismissal Order dated December 31, 2012 is set aside, effective December 31, 2012. The claim, counterclaim and interim appointment of the Administrator continue uninterrupted.

[92] Counsel have been unable to agree upon the wording of an order incorporating the December 17, 2012 endorsement. Should that disagreement continue, they are to attend upon this court to settle that order and if necessary, this decision, at 16:30 hours on February 6 or 8, 2013 as confirmed on consent through the office of the trial coordinator. Failing consent, counsel shall attend at that hour in chambers on Friday, February 8, 2013 to settle such terms.

COSTS

[93] The plaintiffs and the Administrator are entitled to costs of this motion given the outcome. It would be unfair that the minority unit owners should ultimately bear all of their proportionate share of the costs of the Administrator on this motion.

[94] No settlement offers were communicated to this court regarding the costs of this motion.

[95] Under Rule 57.01(1):

• Each party on the motion was represented by experienced counsel.

• The outcome of this motion is very important to each party on the motion.

• The Dismissal Order should not have been obtained by the defendant on these facts, thereby necessitating these motions to set it aside.

• Argument lasted one full day.

• The hourly rates contained the counsel’s submissions as to costs are appropriate given their experience level.

• There appears to have been proper use of less experienced/costly firm members to prepare for these motions.

[96] The Administrator seeks costs on a full indemnity scale. Substantial indemnity costs are appropriate in the present case given the courts amendment of time on December 17, 2012, see: Standard Life Assurance Co. v. Elliott, [2007] O.J. No. 2031, (2007), 86 O.R. (3d) 221 (S.C.J) and Hunt v. T D Securities Inc. (2003), 66 O.R. (3d) 481, 43 C.P.C. (5th) 211 (C.A.). Costs on that scale are fixed in the amount of $15,800, inclusive of disbursements and taxes.

[97] The plaintiffs seek costs on a full indemnity basis. Costs on a substantial indemnity scale are fixed in the amount of $6,700, inclusive of disbursement and taxes.

Kane J.

Released: February 4, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

PATRICK DEWAN, DOMICILE DEVELOPMENTS INC. 1436984 ONTARIO LTD., AMIRA GABRIEL, 1496055 ONTARIO INC. 117490 CANADA LTD., and the ESTATE OF SHEILA EBERTS

Plaintiffs

– and –

CLAUDE ALAIN BURDET, in trust

Defendant

REASONS ON MOTION TO SET ASIDE REGISTRAR’S DISMISSAL

Kane J.

Released: February 4, 2013