Editor’s note

Editor’s note: Addendum released on November 16, 2015. Text of addendum appended.

Murphy v. White, 2015 ONSC 1449

COURT FILE NO.: CV-12-452693

DATE: 20150305

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A. Robert Murphy Architect Inc., B. Gray Wave Resources Inc. and A. Robert Murphy, Plaintiffs

AND:

Edward C. White, Edward White & Associates Inc., Ted White Professional Corporation, Canada (Office of the Superintendent of Bankruptcy), William Meyer, Janet Russell, Ginette Trahan, Page, Arnold LLP, The Estate of Murray B. Page, Ken Page, Jane Martin, Melvin I. Rotman, Laurence C. Arnold, G. James Fyshe and Paul Falzone, Defendants

BEFORE: Whitaker J.

COUNSEL: Bobbie H. Sakdava and Wojtek Jaskiewicz, for the Plaintiffs

Christopher L. Hluchan, for the Defendants Edward C. White, Edward White & Associates Inc., Ted White Professional Corporation

HEARD: February 11, 2015

ENDORSEMENT

[1] Edward C. White and Edward White & Associates (hereinafter collectively referred to as the “Trustees”) seek an order for summary judgment dismissing the claims made by the Plaintiffs against them for fraud, overpayments from the Sally Creed Estate, breach of fiduciary duty and oppression, on the basis that they were advanced after the expiry of the relevant two year limitation period.

[2] This motion does not seek any relief in respect of the claims for punitive damages or in respect of the claims related to the security agreement and the request for an accounting. It is clear that all of the material facts in support of the claim were known as early as 2004. This action was not commenced until May of 2012. The issue here is whether the Murphy Group commenced its action to enforce the May 3, 2010 order of the Court of Appeal within the two year limitation period and secondly, whether a two year limitation period applies to the Murphy Group’s action to enforce the May 3, 2010 order of the Court of Appeal. As a result of the ruling of the Ontario Court of Appeal on May 3, 2010, it was determined that the Trustee made overpayments out of the Sally Creek Estate, the Trustee overpaid itself in the amount of $70,565.00 and the Trustee overpaid the lawyers in the amount of $106,547.02. On May 2, 2012, the Murphy Group commenced an action to enforce the May 3, 2010 order of the Court of Appeal to recover the amounts that the Trustee overpaid to itself and to the lawyers. The Murphy Group submits that the action to enforce the May 3, 2010 order of the Court of Appeal was commenced within two years of the Order.

[3] There is no limitation period in respect of a proceeding to enforce an order of the court or any other order that may be enforced in the same way as an order of the court. The Murphy Group’s action is to enforce the order of the Court of Appeal. Taking into account the amounts approved by the Court of Appeal, and the amounts paid by the Trustee, the Trustee has been overpaid the sum of $70,565.00, the Trustee overpaid Arnold LLP the sum of $106,547.02.

[4] It is appropriate to provide an order which will permit the Murphy Group to collect overpayments made by the Trustee to itself and to Arnold LLP as decided by the Court of Appeal.

[5] Judgment is granted against the Trustee in the amount of $177,112.02 plus interest. The parties may make submissions within 10 days as to costs.

Whitaker J.

Date: March 5, 2015

COURT FILE NO.: CV-12-452693

DATE: 20151116

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A. Robert Murphy Architect Inc., B. Gray Wave Resources Inc. and A. Robert Murphy, Plaintiffs

AND:

Edward C. White, Edward White & Associates Inc., Ted White Professional Corporation, Canada (Office of the Superintendent of Bankruptcy), William Meyer, Janet Russell, Ginette Trahan, Page, Arnold LLP, The Estate of Murray B. Page, Ken Page, Jane Martin, Melvin I. Rotman, Laurence C. Arnold, G. James Fyshe and Paul Falzone, Defendants

BEFORE: Whitaker J

COUNSEL: Bobbie H. Sakdava and Wojtek Jaskiewica, for the Plaintiffs

Christopher L. Hluchan, , for the Defendants Edward C. White, Edward White & Associates Inc., Ted White Professional Corporation

HEARD: In Writing

AMENDED ENDORSEMENT

[6] The parties seek clarification of my endorsement of February 11, 2015.

[7] Having reviewed the submissions of the parties on the three discrete issues identified by counsel, I agree with the submissions of the Murphy Group.

[8] Costs submissions may be made in writing, if any, within two weeks.

Whitaker J.

Date: November 16, 2015