Clarke's Outpost Inc. v. Olowolafe
Citation: Clarke's Outpost Inc. v. Olowolafe, 2025 ONSC 4467
Court File No.: CV-22-00680358-0000
Date: July 31, 2025
Superior Court of Justice – Ontario
Parties
Plaintiffs:
- Clarke's Outpost Inc.
- The Estate of Lynford Clarke, deceased
- Dr. Camille Clarke
Defendants:
- Isaac Olowolafe, Jr., also known as Temitope Isaac Olowolafe, also known as Temitope Olowolafe
- 9183183 Canada Corp.
- Dream Maker Corp.
- Dream Maker Realty Inc.
- Dream Maker Ventures Inc.
- Dream Maker Developments Inc.
- Dream Fund Holdings Inc.
Before
Justice Glustein
Counsel
For the Plaintiffs: Shaneka Shaw Taylor
For the Defendants: Saad Suleman
Heard
July 28, 2025
Reasons for Decision
Nature of Motion and Overview
[1] The defendants bring this motion under Rule 37.14(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to set aside the order of Justice Stevenson dated January 8, 2025 (the "Order").
[2] For the reasons that follow, I dismiss the motion.
[3] After serving a last-minute motion record at 7:48 pm on the eve of the hearing, seeking removal as counsel and an adjournment so that the defendants could obtain new counsel, Oluwaseun Olowolafe ("Seun"), counsel for the defendants, chose not to attend at the hearing without proper excuse. Justice Stevenson denied Seun's last-minute motion (which was brought to the court's attention by plaintiffs' counsel, Ms. Shaneka Shaw Taylor ("Shaw Taylor")) and heard the summary judgment motion.
[4] Consequently, the defendants did not "fail to appear on a motion through accident, mistake or insufficient notice" under Rule 37.14(b).
Facts
Background to the Action
[5] This claim arises from a series of investments made by the plaintiffs, at the invitation of the defendants, in a real estate scheme wherein the defendants obtained the plaintiffs' funds, which were held at different times by the different corporate defendants, all of which were connected to the defendant, Isaac Olowolafe also known as Temitope Isaac Olowolafe also known as Temitope Olowolafe ("Isaac").[1]
[6] Isaac is an Ontario businessman, realtor and the sole officer, director, directing mind, principal shareholder and alter ego of the various corporate defendants Dreamfund Holdings Inc., 10268054 Canada Corp., 9183183 Canada Corp and Dreammaker Realty Inc. also known as Dream Maker Developments Inc., Dream Maker Corp., and Dream Maker Ventures Inc.
The Summary Judgment Hearing Was Peremptory Against the Defendants
[7] The plaintiffs' summary judgment motion was originally scheduled to be heard on September 18, 2024. The defendants failed to follow the timetable ordered by Justice Papageorgiou on May 3, 2024. Consequently, by endorsement dated October 29, 2024, the motion was adjourned to January 8, 2025, peremptory to the defendants.
The Last-Minute Motion to Remove Counsel and Seek an Adjournment
[8] On the night before the January 8, 2025 hearing (at 7:48 pm on January 7, 2025), Seun served Shaw Taylor with a motion record (i) to be removed as lawyer of record and (ii) for an order adjourning the hearing date so that the defendants could retain new counsel. The proposed motion was made returnable the next morning at the scheduled summary judgment hearing.
[9] In his affidavit in support of his motion, Seun's evidence was that:
I have notified my client of my intention to bring this motion and advised them to retain new counsel. […]
I have also taken steps to ensure that my client will not be prejudiced including: Advising them of the upcoming hearing date and the need for representation, and; Returning all documents and materials in my possession necessary for their case. […]
[10] Seun attached as exhibits to his affidavit for his motion (i) an email to Isaac dated December 3, 2024 in which Seun advised that he intended to "file motion to get off this case" on December 6, 2024 and (ii) an email to Isaac dated January 7, 2025 at 7:31 pm (just prior to e-mailing the motion record to Shaw Taylor) stating that: "Please take this as confirmation I no longer represent you for the Clarke matter, and I have served the other party notice to be removed from this matter."
The Hearing
[11] Seun did not attend at the hearing, which proceeded by videoconference. Shaw Taylor properly advised the court of Seun's position set out in the motion record she had received the prior night. The plaintiffs opposed the extremely late removal and adjournment request.
[12] Justice Stevenson asked Shaw Taylor to send an email to Seun and held down the hearing until 10:20 am to determine whether Seun would attend. Shaw Taylor sent an email at 10:17 am stating:
At Justice Stevenson's direction, I am requested to email you to determine where you are and advise that we will be proceeding at 10:20 am in your absence if you are not available/joined.
[13] Seun did not respond until 11:48 am, claiming in an email that he could not attend due to an "unexpected medical matter that occurred this morning."
[14] At 10:22 am, Isaac sent an email asking Shaw Taylor for the zoom coordinates of the hearing. He stated:
I was just cc is there a hearing happening today? I need to seek new counsel if my previous email sent to you was denied.
Please send me link if there is a hearing today.
[15] The hearing began at 10:20 am. Shaw Taylor did not see either Isaac's or Seun's email until after the motion concluded at around 12:30 pm.[2]
[16] With respect to the last-minute motion, Justice Stevenson set out the relief requested:
The current counsel for the Ds, Oluwaseun Olowolafe, asked in writing for an order removing Olowolafe Law as lawyers of record for the Ds and adjourning the P's motion for summary judgment;
[17] Justice Stevenson dismissed the motion to remove Seun as lawyer of record, denied the defendants' request for an adjournment, and proceeded to hear the summary judgment motion. He held:
The motion by the Ds' counsel for an adjournment and to remove himself as lawyer of record is dismissed.
[18] In his reasons, Justice Stevenson addressed the removal/adjournment motion as follows:
Counsel for the Ds did not attend today's motion despite being aware of it and despite having acted for the Ds for about two years and having participated in scheduling the motion in May 2024 and again in Sept 2024. On Jan 7, 2025 the day prior to today's s/j motion, Ds' counsel filed motion material, without prior notice, asking for an Order that he be removed as the D's lawyer and for an adjournment of the P's motion. Counsel for the D swore an affidavit on Jan 7, 2025 in support of his motion to be removed as the D's lawyer. Although Ds' counsel is the brother of the individual D he, counsel, swears their relationship has broken down because of consistent lack of communication. Ds' counsel does not comment in his affidavit on the fact that today's motion date was set at the Oct 29, 2024 CPC hearing as being peremptory to the D. He does not explain why he delayed until now to bring the motion. He did not even attend the motion today. Counsel for the P at my direction emailed and called the Ds' counsel between 10am and 10.20am asking him to attend this zoom hearing. He did not respond at any time before the motion concluded around 12.30pm. I also note that on May 3, 2024 Justice Papageorgiou set a schedule which would have had this motion argued on Sept 18, 2024. All the materials were delivered in accordance with that schedule, but the motion date was adjourned at the Oct 29, 2024 CPC to today. The fact that motion materials were delivered and reviewed and cross examinations conducted long ago shows that counsel have previously been able to get instructions and presumably knows the issues and evidence in this case. There is no suggestion that any further evidence or other material were anticipated or now necessary. Counsel's late blooming motion to be removed as the D's lawyer is denied. His request for an adjournment is denied. The P's motion for summary judgment then proceeded in the absence of counsel for the Ds.
[19] Justice Stevenson granted summary judgment in the following amounts:
- (i) $200,000 to be paid to Clarke's Outpost Inc. by the defendants jointly and severally;
- (ii) $50,000 to be paid to Camille Clarke by the defendants jointly and severally;
- (iii) $100,000 to be paid to the trustees of the Estate of Lynford Clarke by the defendants jointly and severally.
[20] The plaintiffs had sought damages in the amounts of $1,502,000 and $528,000 but the court, upon a thorough review of the evidence, granted judgment in the reduced amount. There was full argument by Shaw Taylor on a detailed evidentiary record, which included:
- (i) the plaintiffs' motion record including affidavit and supplementary affidavits from Dr. Camille Clarke on behalf of the plaintiffs,
- (ii) the statement of defence which included key admissions, including that Isaac controls the corporate defendants, and that at least $250,000.00 is owed to the plaintiffs,
- (iii) the responding motion record of the defendants, including an affidavit from Isaac sworn on August 14, 2024,
- (iv) the transcript from Isaac's cross-examination, and
- (v) the Undertakings and Refusals Chart from Isaac's cross-examination. The undertakings chart demonstrates that material undertakings – particularly those relating to communications with the plaintiffs and to corporate banking records – remain outstanding.
[21] After a thorough review of the record, Justice Stevenson concluded that the defendants had admitted receipt of the plaintiffs' funds and had failed to repay them or honour the investment.
[22] The evidence also established clear breaches of contract and misrepresentations. Justice Stevenson determined that there was no genuine issue requiring a trial.
Medical Evidence Concerning Seun's Ability to Attend at the January 8, 2025 Hearing
[23] In his January 8, 2025 email, Seun claimed that he had suffered an "unexpected medical matter that occurred this morning." Plaintiffs' counsel requested a medical note from Seun's doctor. Isaac attached to his affidavit a medical note from Seun's family physician, Dr. Oluwole Adebajo. However, that note only restated what Seun told Dr. Adebajo, with no independent verification. Dr. Adebajo stated in his note:
[Seun] report minor medical problems which unable him to go work on the 08/01/2025.
[24] When cross-examined under Rule 39 on the medical note, Dr. Adebajo stated that he (i) had no records related to Seun's condition on January 8, 2025, (ii) only had a telephone consultation with Seun on January 15, 2025 (in which Seun reported symptoms consistent with cold/COVID but which had only started on January 10, 2025) and (iii) last saw Seun in his clinic on January 2, 2025 for ongoing and long standing chest pain and other unrelated matters.
Analysis
[25] For the reasons that follow, I dismiss the motion to set aside the Order. I find that:
- (i) The medical evidence does not support an urgent medical condition which prevented Seun from attending the hearing.
- (ii) As counsel, Seun chose to not attend the hearing without proper reason and as such he did not fail to appear on the motion through accident, mistake, or insufficient notice.
- (iii) The email sent by Isaac at 10:22 am on January 8, 2025 does not establish that he failed to attend the hearing due to accident, mistake, or insufficient notice.
[26] I address each of these issues below.
Issue 1: The Medical Evidence Does Not Support an Urgent Medical Condition Which Prevented Seun from Attending the Hearing
[27] The court can set aside an order if counsel is unable to attend a hearing due to an urgent medical condition. In Gerling Global Insurance v. Siskind, Cromarty, Ivey & Dowler (2002), 59 O.R. (3d) 555 (S.C.J.), Nordheimer J. (as he then was) held, at para. 8:
Dealing first with the issue of whether the summary judgment should be set aside, the medical evidence regarding the illness of the plaintiff's former solicitor makes it clear that the solicitor was incapable of properly dealing with the affairs of his client. It is equally clear that the plaintiff's former solicitor failed [page559] to respond to the summary judgment motion as a consequence of the illness under which he was labouring and not through any informed or conscious decision not to attend. In fairness, the defendants do not dispute this fact. In my view, those circumstances would constitute a failure to appear through "accident or mistake" as those terms are used in rule 37.14(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and provide sufficient grounds to set aside the summary judgment that was granted. In this regard, I would respectfully adopt the following approach taken by Middleton J. in Russell v. Osler (1921), 20 O.W.N. 178 at pp. 179-80 (H.C.), affirmed (1921), 20 O.W.N. 208 (C.A.) where he was called upon to consider a motion to set aside after a trial where a party failed to attend, under what is now rule 52.01(3):
It would not be wise to attempt to place any limitation upon the right of the Court to grant relief under Rule 499. The question is one for the exercise of the sound discretion of the Court in each particular case; and where there is any accidental slip or omission or where there has been any miscarriage of justice by reason of misadventure or bungle or mistake upon the part of the litigant, the Court will always be found ready to grant relief upon proper terms. [Emphasis added.]
[28] However, in the present case, the evidence does not support a finding that Seun could not attend at the hearing due to an urgent medical situation. To the contrary, the evidence is that Seun made an "informed or conscious decision not to attend."
[29] The only evidence before the court related to Seun's health on January 8, 2025 is Dr. Adebajo's hearsay note (attached as an exhibit to Isaac's affidavit) that Seun reported that on January 8, 2025, he had a "minor medical problem which unable him to work on the 08/01/2025." There was no admissible evidence before the court to establish that Seun could not attend the hearing due to an "unexpected medical matter that occurred this morning."
[30] Consequently, unlike the evidence before the court in Gerling Global, there is no basis on the present motion to set aside the Order based on the medical condition of counsel.
Issue 2: As Counsel, Seun Chose to Not Attend the Hearing Without Proper Reason and as Such He Did Not Fail to Appear on the Motion Through Accident, Mistake, or Insufficient Notice
[31] At all times, Seun was counsel for the defendants, who were entitled to rely on him to protect their interests.
[32] Seun chose to advise Isaac, in an email at 7:31 pm the night before the hearing, that "I no longer represent you for the Clarke matter" even though Seun had not been removed as lawyer of record. Further, while Seun advised Isaac that "I have served the other party notice to be removed from this matter", there is no evidence that Seun advised the defendants that he would not appear at the hearing the next morning to seek an order to be removed and to protect the defendants' interests by requesting an adjournment.
[33] Instead of appearing in court before Justice Stevenson the next morning, Seun chose to leave his removal and adjournment request in the hands of Shaw Taylor, who properly advised the court of Seun's motion record and the relief he sought. However, the plaintiffs were not required to accept the removal and adjournment relief sought, particularly given the history of delay by the defendants in the matter and the peremptory nature of the hearing on the defendants.
[34] Consequently, when Seun chose to not attend at court, he exposed the defendants to a risk that the court might not accept the adjournment and removal requests. I agree fully with the position taken by Shaw Taylor in her email to Seun dated July 15, 2025:
I did not receive or review your email until after the conclusion of the motion. You have an obligation to attend court yourself or send someone on your behalf including one of the two people you have copied here (not myself) to request an adjournment or deal with your motion. You did not. You could have also notified your client and requested that he attend the motion. He did not.
[35] In the above circumstances, I find that Seun's failure to attend at the hearing is not the result of a "mistake", "accident", or "insufficient notice". As counsel for the defendants, Seun knew that the hearing was taking place, chose not to attend, and had more than sufficient notice of the hearing.
Issue 3: The Email Sent by Isaac at 10:22 am on January 8, 2025 Does Not Establish That He Failed to Attend the Hearing Due to Accident, Mistake, or Insufficient Notice
[36] At the hearing of the present motion, the defendants' new counsel submitted that the email sent by Isaac at 10:22 am on January 8, 2025 could support a finding that Isaac failed to attend the hearing due to mistake, accident, or insufficient notice. I do not agree.
[37] In Isaac's email to Shaw Taylor, he stated:
I was just cc is there a hearing happening today? I need to seek new counsel if my previous email sent to you was denied.
Please send me link if there is a hearing today.
[38] In his affidavit, Isaac is clear that he understood Seun would be attending at the hearing. Isaac stated that "we only got to know of our previous counsel's intension to not to represent us and his medical incident well after the Motion."
[39] Consequently, Isaac's affidavit evidence, when read with his email, establishes that he understood that Seun would be representing the defendants at the hearing.
[40] Isaac's understanding that Seun would attend at the hearing is also consistent with reasonable reliance on Seun's email to Isaac at 7:31 pm the night before the hearing (and just before service of the motion record on Shaw Taylor at 7:48 pm the same evening), which does not suggest that Isaac must attend at court to protect his own interests.
[41] In these circumstances, it cannot be said that Isaac failed to attend at the hearing through accident, mistake, or insufficient notice. He had counsel, relied on counsel attending, and there is no evidence that he did not know of the hearing. Isaac's question in his email as to whether the hearing was taking place does not reflect insufficient notice, but instead reflects his affidavit evidence that he sent the email when he "got to know of our previous counsel's intension to not to represent us and his medical incident."
[42] Finally, I comment briefly on the conduct of Shaw Taylor, as the defendants submit that she ought to have forwarded Isaac's 10:22 am email and Seun's 11:47 am email to the court prior to the conclusion of the hearing.
[43] As I note above, there would be no reason for Shaw Taylor to review her emails during the hearing. To the contrary, such conduct would be discourteous to the court.
[44] Shaw Taylor had already forwarded to the court the information she had prior to the hearing about the removal/adjournment motion served at 7:48 pm the night before the hearing. In any event, the fact that the emails were not forwarded does not lead to a finding of mistake, accident, or insufficient notice on the part of the defendants, who understood that they had counsel whose role it was to protect their interests. Seun's failure to attend does not constitute a basis under Rule 37.14(b).
[45] There is no evidence of any direct communication between Shaw Taylor and Isaac prior to, during, or following the hearing. To the contrary, the logical inference is that it was Seun who communicated with Isaac after Seun received Shaw Taylor's email at 10:17 am., leading to the email from Isaac at 10:22 am.
[46] When Isaac learned that Seun was not at the hearing, he asked Shaw Taylor to provide zoom coordinates. There is no evidence that Shaw Taylor reviewed that request prior to the conclusion of the hearing, as it was received after the hearing began. In any event, as Seun was still counsel for the defendants, it would not be appropriate for Shaw Taylor to communicate directly with Isaac. Consequently, Shaw Taylor acted appropriately.
Order and Costs
[47] For the above reasons, I dismiss the motion. The plaintiffs sought approximately $9,000 in substantial indemnity costs and approximately $6,000 in partial indemnity costs based on actual costs of just over $10,000 (all amounts inclusive of taxes and disbursements).
[48] I find that partial indemnity costs are appropriate given that there is no egregious conduct by the defendants who seek to set aside the Order. I find that the costs incurred by the plaintiffs are reasonable and consistent with what an unsuccessful party would expect to pay. I fix costs at $6,000 (inclusive of taxes and disbursements) payable by the defendants jointly and severally to the plaintiffs by September 2, 2025.
Disposition
Motion dismissed.
Costs: $6,000 (inclusive of taxes and disbursements) payable by the defendants jointly and severally to the plaintiffs by September 2, 2025.
Justice Glustein
Date: July 31, 2025
Footnotes
[1] Seun is Isaac's brother.
[2] This is not surprising as it would not be proper conduct by counsel to check emails during the course of a hearing, let alone while making submissions to the court.