Court File and Parties

COURT FILE NO.: CV-12-0238 & CV-12-0438 DATE: 2016-05-20

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Court File No: CV-12-0238 Gina Gustafson and Juanita Curle, Applicants Morris J. Holervich, for the Applicants

• and –

Bruce Johnson, Allan Curle, Norall Group Inc., and Norall Group Contracting Inc., Respondents Christopher D.J. Hacio, for the Respondents

AND B E T W E E N:

Allan Curle, Bruce Johnson, Jeanette Johnson, Norall Group Inc. and Norall Group Contracting Inc. Court File No: CV-12-0438 Christopher D.J. Hacio, for the Plaintiffs, Allan Curle, Bruce Johnson and Jeanette Johnson Plaintiffs

• and -

Gina Gustafson, Juanita Curle, Holly LeBrun, Carl Gustafson, and D.J. Gustafson Engineering Ltd. c.o.b. as Aegus Contracting, Defendants Morris J. Holervich, for the Defendants, Gina Gustafson and Juanita Curle Daniel Matson, for the Defendants, Holly LeBrun, D.J. Gustafson Engineering Ltd. and Aegus Contracting, not appearing

HEARD: May 19, 2016, at Thunder Bay, Ontario Regional Senior Justice D. C. Shaw

Decision On Motion

[1] File CV-12-0238 is an application brought by Gina Gustafson and Juanita Curle against the respondents, Bruce Johnson, Allan Curle, Norall Group Inc. and Norall Group Contracting Inc.

[2] File CV-12-0438 is an action in which the named plaintiffs are Allan Curle, Bruce Johnson, Jeanette Johnson, Norall Group Inc. and Norall Group Contracting Inc. and the defendants are Gina Gustafson, Juanita Curle, Holly LeBrun, Carl Gustafson and D.J. Gustafson Engineering Ltd., carrying on business as Aegus Contracting.

[3] Gina Gustafson and Juanita Curle are represented by Mr. Holervich of Erickson & Partners.

[4] Allan Curle, Bruce Johnson and Jeanette Johnson are represented by Mr. Hacio of Hacio Law.

[5] Holly LeBrun, Carl Gustafson and D.J. Gustafson Engineering Ltd. are represented by Mr. Matson of Johansen Law Firm.

[6] I am advised by counsel that approximately 16 motions have been brought in these two matters, six of which are pending – five in the action and one in the application.

[7] In the action the following motions are pending: (1) by Mr. Holervich to dismiss the claims of the named corporate plaintiffs; (2) by Mr. Matson to dismiss all claims as against his clients; (3) by Mr. Hacio for contempt; (4) by Mr. Hacio for consolidation of the action with the application and appointment of a case management judge; (5) by Mr. Holervich to stay the contempt and case management motions on the basis that they are vexatious; and (6) by Mr. Holervich to pay out certain dividends from the two corporations. I am advised that this motion was before Justice Pierce on March 24, 2016, during argument on the application for winding up the corporations. However, although reference was made to the motion during argument, there were no submissions on the motion or disposition of the motion. Mr. Holervich advises that the motion remains alive. He is not sure if it will be pursued because of Justice Pierce’s order on April 26, 2016, winding up the corporations.

[8] Mr. Holervich contemplates bringing additional motions for security for costs and dismissal of all claims in the action.

[9] In her judgment on the application for winding up the corporations, released April 26, 2016, Justice Pierce ordered an assessment of the outstanding account of Mr. MacIvor, the corporations’ solicitor, for legal fees. I am told that Mr. McIvor’s account is scheduled to be assessed on June 2 or 3, 2016.

[10] There are two outstanding accounts from Mr. Gustafson’s company, Aegus Contracting, to the corporations. In her judgment of April 26, 2016, Justice Pierce ordered that unless the parties otherwise agreed, there would be a trial of the issue of whether the accounts of Aegus Contracting should be paid.

[11] Justice Pierce ordered that the remaining chattels of the corporations were to be sold by Gina Gustafson and Juanita Curle and that they were to account to the respondent, Jeanette Johnson, and the court for the proceeds of sale of these chattels.

[12] Justice Pierce ordered that after the assessment of the MacIvor account, the trial of the issue of the payment of the Aegus accounts and the sale of the corporations’ chattels, Gina Gustafson and Juanita Curle were to take out an appointment before her for an accounting for the corporations’ assets and liabilities. At that time, Justice Pierce would consider dissolution of the corporations, pursuant to s. 218(1) of the Business Corporations Act, disposition of corporate records and distribution of the remaining assets rateably among the shareholders of the corporations.

[13] Mr. Holervich advises that on May 18, 2016, he was served by Allan Curle and Bruce Johnson with a notice of appeal of Justice Pierce’s April 26, 2016 judgment. Allan Curle and Bruce Johnson are presently unrepresented on the appeal proceedings.

[14] Part way through today’s court appearance, Mr. Holervich advised that although he had brought a motion to stay the case management motion, he was now supportive of the appointment of a case management judge.

[15] Appointment of a case management judge under Rule 77 is applicable only to the Cities of Ottawa and Toronto and the County of Essex. However, Rule 37.15 and Rule 50.13 effectively give judges in all locations in Ontario case management powers.

[16] The action and the application involve similar issues and similar parties. It is apparent that the litigation of these two matters has gone off the rails. The litigation would benefit from one judge hearing all motions and giving directions and making procedural orders to promote the most expeditious determination of the proceedings.

[17] Justice Pierce is familiar with the action and the application. Her judgment of April 26, 2016, requires the parties to re-attend before her for an accounting of the corporations’ assets and liabilities, and to consider dissolution of the corporations and distribution of the remaining assets among the shareholders.

[18] An order shall go under Rule 37.15 directing that all motions in the action and in the application are to be heard by Justice Pierce. She may give such directions and make such procedural orders as are provided by the Rule. Further, an order shall go, under Rule 50.13, that Justice Pierce may hold such case conferences in the action and in the application as she deems advisable. She will have the powers given to her by Rule 50.13, in effect, to case manage the two matters.

[19] The parties shall contact the Trial Co-ordinator within the next seven days to take out an appointment for an initial meeting with Justice Pierce, not to exceed one hour.

[20] Because of the size and unwieldy nature of the two files, counsel shall arrange to have each motion that they intend to argue, together with relevant supporting material, placed in a separate folder for ease of reference. The folder shall clearly identify the subject matter of the motion: e.g. “stay motion”, “contempt motion”, “security for costs motion”, etc.

[21] Costs of today are reserved to Justice Pierce.

“original signed by”

The Hon. Mr. Justice D. C. Shaw

Released: May 20, 2016