CITATION: DS&D Personnel Inc. v. Maple Equipment & Leasing Inc., 2022 ONSC 4103  
COURT FILE NOS.: CV-21-00666106-0000  
CV-21-00662878-0000  
DATE: 20220712  
SUPERIOR COURT OF JUSTICE - ONTARIO  
RE:  
DS&D PERSONNEL INC. and DOMENIC NUOSCI, Applicants  
AND:  
MAPLE EQUIPMENT & LEASING INC. and GIUSEPPE (JOSEPH) NUOSCI,  
Respondents  
AND RE:  
BEFORE:  
MAPLE EQUIPMENT & LEASING INC., GIUSEPPE (JOE) NUOSCI and  
CARMELA NUOSCI, Applicants  
AND:  
DS&D PERSONNEL INC., DOMENIC NUOSCI and SILVANA NUOSCI  
VERMETTE J.  
COUNSEL: Gavin Finlayson and Kaleigh Sonshine, for DS&D Personnel Inc., Domenic  
Nuosci and Silvana Nuosci  
Neil Wilson, for Maple Equipment & Leasing Inc., Giuseppe Nuosci and Carmela  
Nuosci  
HEARD:  
June 10, 2022  
ENDORSEMENT  
[1]  
DS&D Personnel Inc. (“DS&D”) and Domenic Nuosci (“DN”) move for the following  
relief in their Application:  
a. an order enforcing a settlement and/or providing directions to the parties on the  
finalization of the settlement;  
b. an order directing Maple Equipment & Leasing Inc. (“Maple”) and Giuseppe (Joe)  
Nuosci (“GN”) to pay or cause to be paid from the revenues of the parties’ business  
an invoice rendered by Miller Thomson LLP (“Miller Thomson”) dated April 30,  
2022 (“MT April Account”); and  
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c. in the alternative, an order that GN be required to personally reimburse the parties’  
business for all costs awards made in this proceeding against Maple, GN and  
Carmela Nuosci (“CN”).  
[2]  
Maple, GN and CN move for the following relief in their Application:  
a. an order enforcing the settlement between the parties and directing DS&D and DN  
to proceed with the buy-sell agreement agreed by the parties;  
b. an order that DN be responsible for addressing the MT April Account and that the  
parties cease paying legal fees from the parties’ business;  
c. an order that GN be permitted to pay legal fees from the parties’ business in an  
amount equal to the legal fees paid by DN; and  
d. in the alternative, an order referring the accounts rendered by Miller Thomson to  
an assessment.  
[3]  
As reflected by the relief sought by both sides, all parties wish to proceed with the  
settlement that they previously reached. The payment of the MT April Account is the only  
stumbling block to the finalization of the settlement. Based on the evidence before me and taking  
into account all of the circumstances of this case, I have concluded that Maple and GN should be  
ordered to take the necessary steps to transfer funds to DS&D from the revenues of the parties’  
business for the payment of the MT April Account. The resolution of this issue will hopefully  
allow the parties to finalize the settlement quickly and put an end to this litigation.  
A.  
FACTUAL BACKGROUND  
1. The parties  
DN and GN are brothers (together, “Brothers”). They jointly own and run a “just-in-time”  
[4]  
cement delivery business which operates under the name of Maple Ready-Mix & Aggregates  
(“Business”).  
[5]  
The Business is run by two separate corporations on an integrated basis: DS&D and Maple.  
The Business itself is not a separate corporation or legal entity.  
[6]  
DN is the principal, sole officer, sole director and sole shareholder of DS&D. Silvana  
Nuosci (“SN”) is DN’s spouse and a former shareholder and director of DS&D.  
[7]  
GN is the principal and the directing and controlling mind of Maple. CN, who is GN’s  
spouse, is the sole officer, sole director and sole shareholder of Maple.  
[8]  
Maple and DS&D play separate but complementary roles in the operations of the Business.  
Part of Maple’s role is to handle all of the accounts payable and receivable. Since the money that  
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comes into the Business flows through Maple, Maple/GN have effective control over the funds of  
the Business even though they belong to both Brothers.  
[9]  
DS&D owns or leases most of the equipment and trucks which produce and deliver the  
concrete. It also owns the batch plant where the concrete is mixed. In addition, DS&D employs  
and handles the payroll for all employees of the Business, and pays for all insurance, fuel, wages  
and benefits.  
[10] There is no written agreement between the Brothers or between DS&D and Maple  
governing the business relationship between the two companies. DS&D and Maple have depended  
upon one another to operate the Business and have developed an ordinary course of conduct.  
Among other things, the practice has been for Maple to flow funds into DS&D in order for DS&D  
to pay its expenses.  
[11] It is agreed among the parties that notwithstanding the existence of the two corporations,  
each brother is effectively a 50% owner of each of Maple and DS&D.  
2.  
The litigation  
[12] A dispute arose between the Brothers in 2020 and, ultimately, each of them brought an  
oppression application. Maple, GN and CN commenced their Application on May 26, 2021, and  
DS&D and DN commenced their Application on July 23, 2021. The Applications were scheduled  
to be heard on their merits on December 8, 2021.  
[13] On December 7, 2021, the parties attended a case conference before Justice Sharma for  
settlement purposes. The Applications settled (“December Settlement”) on the basis that one of  
the Brothers would buy the other out of the Business through a shotgun buy-sell agreement  
(“Buy/Sell”). No finding of oppression or wrongdoing was made against either side.  
[14] Justice Sharma made the following Order (“December 7, 2021 Order”):  
1.  
THIS COURT ORDERS that the parties will proceed with a shotgun  
buy/sell process for the sale of the Maple Ready Mix and Aggregate business  
(comprising both Maple Equipment & Leasing Co. and DS&D Personnel Inc.,  
together the “Business”) whereby one party will name the price and the other party  
will choose whether to buy or sell their share of the Business at that price.  
2.  
THIS COURT FURTHER ORDERS that to the extent the parties are unable  
to agree on the buy-sell process (including without limitation the issues of who will  
name the buy/sell price, tax indemnities including for Carmela Nuosci, and  
restrictive covenant provisions), the parties will return for a hearing on January 12,  
2022, to argue any outstanding issues and the Court will rule upon the issues in  
dispute.  
3.  
THIS COURT FURTHER ORDERS that the costs of these proceedings are  
to be agreed upon by the parties or failing agreement decided by the Court.  
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[15] DN’s evidence is that the Brothers agreed and undertook at the December 7, 2021 case  
conference to preserve the status quo of the Business and to negotiate the terms of the Buy/Sell in  
good faith. GN did not give evidence one way or the other with respect to the alleged  
agreement/undertaking to preserve the status quo.  
[16] On December 10, 2021, Chief Justice Morawetz conducted a judicial mediation to assist  
the parties in reaching a resolution on the Buy/Sell process. The Brothers were unable to reach an  
agreement on that day.  
[17] Given the parties’ inability to agree on the Buy/Sell process, they returned before the Court  
for a hearing on January 12, 2022, as set out in the December 7, 2021 Order. However, due to a  
technical issue with CaseLines, the hearing could not proceed on that day. Since the hearing could  
not proceed, Justice Sanfilippo convened a case conference during which certain issues between  
the parties were resolved. Justice Sanfilippo made an endorsement in which he set out the four  
issues that remained to be determined by the Court. His endorsement reads, in part:  
The DS&D Parties submitted, in their factum, that the issues remaining to be  
determined on the Applications were as follows: (a) which party will name the  
buy/sell price; (b) should the buy-out include restrictive covenants, and if so, what  
terms; (c) should the buy-out include tax indemnities; (d) claim by the Maple  
Equipment Parties for business losses; (e) indemnity for cash shortfalls; (f)  
adjustments for expenses and shareholder loans; (g) costs. At the hearing, the  
parties agreed that only issues (a) - (d) and (g) remained for determination in the  
Applications.  
By the conclusion of the Case Conference, the parties agreed that the following four  
issues remain for determination on the hearing of the Applications (“Remaining  
Issues”):  
(a) Which party must name the price for the buy/sell arrangement?  
(b) Should the buy-out include restrictive covenants?  
(c) Should the buy-out include indemnities for tax liabilities?  
(d) Costs of the Applications.  
The parties submitted that these Remaining Issues can be argued on the return of  
the Applications in two hours or less, one hour of oral submissions to each of the  
DS&D Parties and the Maple Equipment Parties, particularly if costs are addressed  
by written submissions post-hearing. I agree.  
[18] Justice Sanfilippo ordered that the Applications be heard on January 26, 2022.  
[19] DN’s evidence is that one of the issues settled during the case conference with Justice  
Sanfilippo was an issue raised by GN regarding the appropriateness of various payments of  
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expenses claimed by DN through DS&D, including litigation disbursements for advice from a  
proposed receiver, A. Farber & Partners (“Farber”). GN did not challenge DN’s legal fees at that  
time.  
[20] On January 26, 2022, the parties appeared before Justice Hood. Justice Hood released his  
decision on February 2, 2022. He ordered as follows:  
a. The tax indemnity in the Buy/Sell shall only extend to Maple and to CN as a director  
of Maple.  
b. There is to be no restrictive covenant placed upon the seller in the Buy/Sell.  
c. GN is to make the offer to DN and to name the price for the buy-out.  
[21] Justice Hood stated in his endorsement that these three issues were the only issues that the  
Court was asked to determine, except for the issue of costs. He set out a timetable for the delivery  
of written costs submissions.  
[22] On February 8, 2022, Maple, GN and CN served a Notice of Appeal asking that Justice  
Hood’s judgment be set aside with respect to the tax indemnity issue, and asking that the tax  
indemnity in the Buy/Sell extend to GN, CN, DN and SN personally.  
[23] Despite the fact that Justice Hood had ruled on all the issues that were supposed to be  
remaining, the Brothers were not able to negotiate the Buy/Sell and, as a result, they attended a  
case conference before Justice Glustein on March 21, 2022. Justice Glustein scheduled a hearing  
for May 18, 2022 to address any issues relating to the Buy/Sell and any outstanding claims between  
the parties. Justice Glustein wrote in his endorsement that the purpose of the hearing was to resolve  
any outstanding issues in one hearing. One of the issues in dispute was the fees paid to Farber,  
which GN had raised again.  
[24] The Divisional Court heard Maple, GN and CN’s appeal on April 4, 2022. The appeal was  
dismissed from the bench and oral reasons were given that day by Justice Swinton on behalf of the  
panel. The panel found that there was no merit to the appeal. A written endorsement was released  
on April 6, 2022.  
[25] On April 19, 2022, Justice Hood released his costs endorsement with respect to the January  
26, 2022 motion. He noted that the amount of fees incurred by DS&D and DN seemed higher than  
the fees incurred by Maple, GN and CN, but he found that what each side was seeking in costs  
was within the reasonable expectation of the other. Justice Hood ultimately concluded that there  
should be no order as to costs for the motion nor the Applications as success was divided.  
However, based on an offer to settle costs that had been served by DN, Justice Hood ordered GN  
to pay costs to DN in the amount of $2,500.00 for the costs associated with the preparation of costs  
submissions.  
[26] On May 4, 2022, approximately two weeks before the upcoming motion scheduled for May  
18, 2022, DN served an offer to settle. GN accepted the offer on May 6, 2022 (“May Settlement”).  
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The May Settlement included specific terms that became incorporated into the Buy/Sell, as well  
as an agreement that the Buy/Sell would be executed by May 18, 2022. Among other things, the  
May Settlement included a term pursuant to which DN was to reimburse $20,530.73 to DS&D,  
representing the second payment made to Farber.  
[27] I was advised by counsel at the hearing that except for wordsmithing issues in relation to  
one clause, the language of the Buy/Sell has now been agreed upon. However, it has yet to be  
signed by the parties as a result of a dispute that has arisen regarding the payment of the MT April  
Account which relates to legal fees incurred by DS&D and DN.  
3.  
Dispute regarding legal fees  
[28] Since the beginning of the litigation, the parties have been paying their legal fees from the  
revenues of the Business. Maple, GN and CN have been paying their lawyers through Maple, and  
DS&D, DN and SN have been paying their lawyers through DS&D.1  
[29] Prior to the MT April Account, Miller Thomson’s invoices were all paid with the  
knowledge of GN and without objection from him. Given that the funds of the Business are  
controlled by Maple, DN had to ask for the transfer of funds from the Business (i.e. from Maple  
to DS&D) each time he received an invoice from Miller Thomson for legal fees. DN’s  
uncontradicted evidence is that his usual practice was to provide GN with the last page of the  
invoice from Miller Thomson and to request that GN transfer the necessary funds to DS&D to pay  
the invoice.  
[30] On May 5, 2022, in accordance with past practice, DN sent an e-mail to GN asking him to  
transfer $365,000 as soon as possible to cover part of his legal fees. DN’s e-mail attached the last  
page of the MT April Account. The evidence shows that GN forwarded DN’s e-mail to his  
litigation counsel on the same day.  
[31] On May 11, 2022, five days after the parties entered into the May Settlement, counsel for  
GN sent the following letter to counsel for DN:  
We have been made aware of a demand by your client that my client transfer  
$365,000 to DS&D to pay Miller Thomson LLP’s legal fees with respect to this  
proceeding. This is apparently in addition to the at least $294,000 already received  
by Miller Thomson.  
My client does not agree to pay legal fees in this amount. As of February 1, 2022,  
Miller Thomson had been paid at least $294,000 in fees for the entire proceeding,  
which already included preparation of all materials, cross-examinations and the  
1 There is a dispute between the parties as to whether GN has paid two costs awards that he was ordered to  
pay to DN through Maple.  
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judicial mediations. The further $365,000 requested by Domenic is extremely  
excessive given that the only recent steps on this matter have been an appeal on a  
narrow issue, two short case conferences and the preparation of brief supplementary  
materials for the hearing on May 18, 2022.  
By way of comparison, I can advise that our legal fees for the period following  
February 1, 2022 amount to approximately $97,000 including HST and  
disbursements.  
In addition, our client has already paid $20,000 towards DS&D’s legal fees by way  
of payment of the costs award of $20,000.  
Given the above our client does not agree to pay the legal fees in the amount  
requested. We hereby request particularization of the claimed legal fees and the  
total legal fees paid to date so that our client can consider this issue with all relevant  
information.  
In the meantime, I request that you please confirm that your client will not use funds  
transferred for ongoing business expenses to pay these claimed fees, which are in  
dispute. I would appreciate it if you would confirm this immediately to avoid any  
disputes about the use of funds.  
[32] Counsel for DN responded on the same day as follows:  
We disagree with the characterizations in your letter.  
Your client’s ostensible control over shared revenues does not entitle him to  
unilaterally determine what expenses of DS&D should or should not be paid.  
Particularly, as he is a self-interested litigant. Particularly, when your client has  
caused or contributed to those expenses through his actions and positions.  
Particularly, when your client funds his own legal expenses from Maple and does  
not ask our client for permission to do so or provide them for review.  
Further, you are laboring under false apprehensions. First, you have assumed our  
account relates to work done from February 1, 2022, onwards. It does not. The  
account goes back to December 2021.  
Second, the account includes time not only for litigation but also corporate  
transactional work. As you are aware, our client’s transactional lawyer is also with  
Miller Thomson. Your client’s transactional lawyer is with Brattys who no doubt  
has rendered a bill to him for work done on the buy/sell, which he is paying or  
intends to have paid from shared revenues. Your comparison of your own firm’s  
fees to ours is therefore misleading (in addition to being irrelevant).  
Third, your client is the one driving up legal fees by taking meritless positions  
including seeking an indemnity for Carmela’s personal decision to not pay her  
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income taxes, bringing an appeal of the decision denying that relief which the  
Divisional Court determined was “without merit”, and attempting to re-litigate on  
more than one occasion issues the parties have already settled. Your description of  
the appeal as “a narrow issue” and of the materials for next week’s hearing as  
“brief” is also a mischaracterization.  
The practice to date has been for the parties’ legal fees to be paid from shared  
revenues. There is no requirement for parity between the parties with respect to the  
payment of legal fees. If your client is not prepared to transfer funds to satisfy  
DS&D’s expenses, including legal fees, then we will have to engage in further  
litigation driven by a position taken by your client that upsets the status quo.  
The parties are close to being able to consummate the buy/sell and move on with  
their lives. We ask your client to please reconsider his position so that we may  
avoid further pointless litigation and further legal fees. If he is not prepared to do  
so, our client reserves the right to do whatever is necessary to ensure DS&D’s  
accounts are paid.  
[33] Counsel continued to exchange correspondence on this issue but did not come to an  
agreement. GN’s position was that: (a) the practice had been to pay for reasonable legal fees, (b)  
the request for payment was not reasonable, and (c) the fees and disbursements should be in the  
same range for both sides. DN’s position was that GN was upsetting the status quo and did not  
have an entitlement to review Miller Thomson’s accounts and unilaterally decide what expenses  
should be paid. It was also DN’s position that the Buy/Sell could not close until the issue of the  
legal fees was resolved. GN alleged that the failure to execute the Buy/Sell was in breach of the  
May Settlement which required all parties to sign the Buy/Sell by May 18, 2022.  
[34] On May 27, 2022, counsel for GN provided to counsel for DN copies of their accounts for  
the period May 28, 2021 to May 3, 2022, with redacted docket entries. Copies of the accounts of  
GN’s corporate counsel were not provided. On May 31, 2022, counsel for DN provided to counsel  
for GN a redacted copy of the MT April Account, as well as the invoice numbers, dates and  
amounts of the prior invoices already paid to Miller Thomson. A redacted version of these other  
invoices was attached as an exhibit to the affidavit of DN sworn June 1, 2022. These invoices  
cover the period May 24 to December 31, 2021. The MT April Account is 24 pages long and  
includes docket entries from December 8, 2021 to April 30, 2022.  
[35] It appears from the invoices included in the record that the hourly rate of GN’s main  
litigation counsel is $450. There is no available information regarding the hourly rate of GN’s  
corporate counsel. The hourly rates of DN’s litigation counsel are $800 and $425, and the hourly  
rate of his main corporate counsel is $700.  
[36] GN’s evidence is that the total amount that he has paid to his lawyers is $350,932.34, i.e.  
$328,716.65 to his litigation counsel and $22,215.80 to his corporate counsel. DN’s evidence is  
that the total amount of Miller Thomson’s fees is $770,353.42, which includes the MT April  
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Account in the amount of $364,346.96.2 As stated above, DN’s litigation counsel and corporate  
counsel are both at Miller Thomson.  
[37] In his affidavit, GN gives the following evidence regarding the alleged understanding  
between the Brothers as to the payment of legal fees:  
My brother and I have proceeded on the informal understanding through our  
conduct that reasonable legal fees for both sides would be paid by the company.3  
Both Domenic and I have paid fees for this litigation from the company from time  
to time. This understanding was implied by our conduct and was not specifically  
agreed to orally or in writing.  
Throughout this litigation I have facilitated the payment of legal fees to Miller  
Thomson. When Domenic asked that I transfer money from Maple Equipment to  
DS&D to cover payment of legal fees, I did so. However, this was always on the  
understanding that we would receive reimbursement of reasonable legal fees and  
that we would receive reimbursements from the company in roughly comparable  
amounts. [Emphasis in the original.]  
[38] In his first affidavit, which preceded GN’s affidavit, DN stated the following:  
There has never been an agreement that there would be an equalization of the legal  
fees spent by Joe and myself. I don’t agree and do not consent to Joe determining  
what he thinks are “reasonable” legal fees.  
[39] DN swore a second affidavit in response to GN’s affidavit. He stated the following with  
respect to the alleged understanding between the Brothers regarding the payment of legal fees:  
Contrary to Joe’s assertion at paragraph 7 of his Affidavit, there has never been an  
“understanding” that either of us would receive a reimbursement for legal fees  
connected to this litigation, or any other amount for that matter. What I believe Joe  
means when he says there is an “understanding” is that it is subjectively the terms  
he would like to impose on our historical status quo practice after the fact. Joe and  
I have not spoken civilly throughout the course of the litigation, and have mostly  
communicated with each other over email or through lawyers.  
The historical, objective status quo practice Joe and I have established of paying  
for legal fees for ourselves, our wives and our companies through the Business is a  
course of conduct that we have followed throughout this litigation. The legal fees  
2 While GN suggests in his affidavit that a higher amount was paid, he has failed to establish this allegation.  
3 In his affidavit, GN refers to “the company” without specifying what he is referring to. It appears from  
the context that he is referring to the Business, which is not a separate corporation.  
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we have separately incurred because of this litigation have been recognized as  
obligations of Maple and DS&D respectively and have been paid without  
exception, regardless of quantum and with no cap.  
Joe’s suggestion that legal fees have been paid by the Business “from time to time”  
is not accurate. Our legal fees for this litigation have been paid by the Business  
every time a request has been made. Joe’s arbitrary refusal to allow the Business  
to pay my lawyer’s recent account […] is the first deviation from this course of  
conduct. [Emphasis in the original.]  
[40] Aside from the issue of legal fees, there is evidence that in the last months, GN has used  
his control over the funds of the Business to improperly withhold funds from DS&D or impose  
conditions on DS&D for the transfer of funds with respect to funds that were required for the  
operations of the Business and would have ordinarily been transferred from Maple to DS&D to  
pay expenses.  
B.  
POSITIONS OF THE PARTIES  
1. Position of DN  
[41] DN states that there is no contractual or legal basis for GN to seek an adjustment to DN’s  
legal fees, particularly historical legal fees that have already been paid. He also states that there is  
no evidentiary basis for the Court to wade into the appropriateness of the legal fees of either party.  
According to DN, GN’s request for relief is based on an unparticularized and general complaint  
by one litigant who thinks that the opposing litigant’s fees are excessive. He points out that the  
Court has no meaningful benchmark against which to measure the legal fees of one party versus  
another, other than simply comparing raw numbers.  
[42] DN submits that GN’s views on the reasonableness of the rates of DN’s lawyers or the fees  
that they have charged is irrelevant, and that GN, as a self-interested litigant, cannot unilaterally  
determine that DN’s legal fees are unreasonable based merely on a differential in quantum. DN  
states that there is no requirement for parity between the parties with respect to the payment of  
legal fees. He notes that it is not surprising that the legal fees and disbursements that GN and DN  
have incurred are not symmetrical given that they have hired different lawyers, who charge  
different rates, and have approached the issues differently. He also notes that GN has paid his own  
lawyers without seeking any input from DN.  
[43] DN argues that GN has made up an alleged “understanding” between the Brothers that is  
not grounded in the parties’ prior conduct and is simply an attempt by GN to impose his subjective,  
after-the-fact wishes. He states that what GN is really arguing is that a term should be implied that  
there would be some after-the-fact “equalization” of legal fees. DN submits that there is no basis  
to imply a term contrary to the clear and objective historical course of conduct of the parties. He  
further submits that it was entirely within GN’s reasonable expectation that DN’s lawyers would  
submit another account and that the account would be substantial given the legal work that was  
undertaken.  
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[44] According to DN, GN has been driving up the parties’ legal fees by taking meritless  
positions throughout the litigation. DN points out that GN did not challenge DN’s legal fees at the  
hearing before Justice Hood, even though he had the opportunity to do so and the purpose of that  
hearing was to resolve all outstanding issues in one hearing, as stated in the December 7, 2021  
Order. DN further points out that GN had raised the appropriateness of certain litigation expenses  
prior to the January 26, 2022 hearing (i.e., Farber-related expenses), but that he did not raise any  
issues with respect to DN’s legal fees until May 11, 2022. DN’s position is that GN is raising  
issues about his legal fees now so as to adjust the buy-out or sell-out price of the Business.  
[45]  
DN argues that GN’s actions have created another impediment to the consummation of  
the Buy/Sell as a result of GN’s capricious decision to deviate from the status quo that he undertook  
to preserve as part of the December Settlement. DN points out that GN knew about the amount of  
the MT April Account when he agreed to the May Settlement, and he was aware that DN had  
requested payment in accordance with the status quo and the expectations of the parties. DN  
submits that GN entered into the May Settlement under false pretenses, and that he inappropriately  
availed himself of self-help remedies by refusing to release funds from the Business to satisfy the  
MT April Account, in breach of the settlement between the parties and in anticipatory breach of  
the Buy/Sell.  
[46] DN asks that GN be compelled to execute the Buy/Sell, but also to maintain the status quo  
until the transaction closes given his bad faith conduct to date. He asks that the December  
Settlement and the May Settlement be enforced and that such enforcement be peremptory on GN.  
[47] Finally, DN argues that this Court should not refer Miller Thomson’s invoices for  
assessment. He submits that section 9 of the Solicitors Act, R.S.O. 1990, c. S.15 only applies to a  
third party who is a beneficiary of the legal services and does not apply to an adverse litigant. He  
further submits that this issue is not properly before the court as the appropriate motion has not  
been brought, and that special circumstances must be established before paid invoices are referred  
for assessment.  
2.  
Position of GN  
[48] GN argues that the parties’ practice to pay their legal fees from the Business was not a  
“blank cheque”, but, rather, an informal understanding that reimbursement of reasonable legal fees  
in approximately the same range would be paid to each brother. He states that the legal fees sought  
by Miller Thomson are, on their face, excessive and well in excess of double the amount paid to  
GN’s own lawyers for the same work. He submits that having access to roughly equal amounts  
from the Business for use towards legal fees is equal treatment and consistent with the Brothers’  
position as equal shareholders and their reasonable expectations. In GN’s view, it would set a  
problematic precedent to condone the expenditure of unreasonable and disproportionate amounts  
of legal fees using company money, and would create an incentive against litigating economically.  
[49] Even though GN acknowledges that section 249(4) of the Business Corporations Act,  
R.S.O. 1990, c. B.16 regarding the payment of interim costs to a complainant does not apply to  
the circumstances of this case, he points out that this provision authorizes the payment of  
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reasonable legal fees and disbursements and that the factors that a court applies in determining  
how much the interim costs ought to be include the principle of proportionality and the amount the  
corporation has paid for the legal fees of other parties.  
[50] GN’s position is that the Buy/Sell should proceed immediately, and that DN’s attempt to  
secure payment of the exorbitant MT April Account by refusing to proceed with the Buy/Sell is  
improper and in breach of the settlement because payment of the MT April Account is not a term  
of the settlement. GN submits that DN’s claim for additional legal fees should not cause further  
delay to the execution of the Buy/Sell. He further submits that refusing to pay for these legal fees  
is not an adjustment to the purchase price of the Business.  
[51] GN states that DN should pay the MT April Account himself and the parties should stop  
paying the legal expenses of this litigation from the Business. However, GN submits that he should  
be permitted to pay upcoming invoices as long as he does not receive more from the Business for  
legal fees than DN has. In GN’s view, this outcome is fair to both parties. Alternatively, GN asks  
that the MT April Account be referred for an assessment together with the other invoices from  
Miller Thomson. GN relies on section 9 of the Solicitors Act to argue that the person who pays an  
account, not just the client, may seek an assessment of the account.  
C.  
DISCUSSION  
[52] In my view, GN’s refusal to take the necessary steps to transfer funds from Maple to DS&D  
for the payment of the MT April Account is in breach of the status quo, the parties’ tacit  
understanding, their course of conduct throughout the litigation and their reasonable expectations.  
[53] I find that, as part of the December Settlement, the parties agreed to preserve the status quo  
of the Business while they were negotiating the terms of the Buy/Sell. As stated above, DN gave  
evidence on this point in his affidavit, and GN failed to respond. In my view, the failure to address  
this point cannot be an oversight. In addition to being raised in the affidavit of DN, the issue of  
maintaining/upsetting the status quo was raised a number of times by DN’s lawyers in the  
correspondence exchanged prior to this motion. Further, DN’s evidence that the parties agreed to  
preserve the status quo is consistent with common sense: it makes eminent sense for settling parties  
to agree to maintain the status quo pending the implementation of the settlement. Therefore, I  
accept DN’s evidence on this point.  
[54] Finding that the parties agreed to preserve the status quo is not a complete answer. While  
it is undisputed that the status quo included the payment of the parties’ respective legal fees from  
the revenues of the Business, GN has alleged that there were implied limits or conditions on such  
payment, that is, only reasonable legal fees would be paid and the fees and disbursements had to  
be in the same range for both sides.  
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[55] I reject the conditions or “implied terms”4 alleged by GN. In my view, they are after-the-  
fact creations. It is acknowledged by all parties that there was no express discussion between the  
Brothers with respect to the payment of legal fees and any conditions/limits in this regard. The  
parties’ tacit understanding and course of conduct with respect to the payment of legal fees go  
back to the beginning of the litigation. I find that the surrounding circumstances that existed at  
that time do not support the conditions alleged by GN. At that time, and for some time before that,  
there had been a breakdown in the Brothers’ relationship. They were not able to interact civilly  
with each other and they did not trust each other. In these circumstances, neither brother would  
have agreed to have the other brother have oversight over his legal fees to assess their  
reasonableness or the need for equalization.  
[56] Further, the parties’ subsequent conduct does no support GN’s position:  
a. By December 31, 2021, Miller Thomson had issued four invoices totaling  
$406,006.46. All of these invoices were paid. Pursuant to the practice described  
by DN, after receiving each invoice, DN sent the last page of the invoice to GN to  
request funds, and GN transferred the necessary funds to DS&D so that it could pay  
Miller Thomson. Thus, GN was aware of the legal fees incurred by DN.  
In contrast, by mid-January 2022, GN had paid approximately $215,000 to his  
litigation firm. Despite the significant difference at that time between the amounts  
paid to each firm, GN did not raise any issue with respect to DN’s legal fees until  
May 2022. This is the case even though: (i) he took issue with other litigation-  
related expenses in January 2022 (i.e. fees paid to Farber); (ii) he knew that all  
outstanding issues were to be argued at the January 2022 hearing pursuant to the  
December 7, 2021 Order; and (iii) he knew that DN was continuing to incur  
significant legal fees after December 2021 as the litigation was continuing.  
b. The fact that DN’s legal fees were higher than GN’s legal fees was noted by Justice  
Hood in his costs endorsement, but he found that the costs sought by each side were  
within the reasonable expectations of the other side. It is clear from Justice Hood’s  
costs endorsement that the lawyers’ actual rates were disclosed in the parties’  
respective costs submissions. It should have been obvious to GN at that time, if he  
did not know already, that the hourly rate of DN’s lead litigation counsel was almost  
double the hourly rate of his litigation counsel. Again, no issue was raised by GN.  
c. There is no evidence that DN made any inquiries about the legal fees incurred by  
GN before GN refused to transfer the necessary funds to pay the MT April Invoice.  
There is also no evidence that DN knew that the legal fees he had incurred were  
4 This case is not, strictly speaking, about implied terms as there is no written contract between the parties  
into which terms could be implied. Rather, the Court is engaged in determining what the parties tacitly  
agreed to.  
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substantially higher than the fees incurred by GN before this dispute arose. If there  
was, in fact, a condition that the parties would only be reimbursed for legal fees and  
disbursements if they were in the same range for both sides, one would have  
expected an exchange of information about the rates charged by the lawyers  
retained by the parties and the legal fees incurred by each side at various points.  
[57] While it was open to the Brothers to discuss changing the practice that they had adopted  
with respect to the payment of legal fees going forward, no such discussion took place. In my  
view, one of the Brothers cannot unilaterally impose a change retroactively and in breach of the  
parties’ reasonable expectations. The MT April Invoice represents legal fees incurred by DN over  
a number of months, while he reasonably expected that the fees that he was incurring would be  
paid by the Business, and at a time where no objection had been raised regarding legal fees. It  
would be unfair to change the rules of the game without notice and after the fact. Moreover, as  
stated above, the parties have agreed to maintain the status quo.  
[58] Further, and in any event, I find that there is no basis to find that the fees incurred by DN  
are unreasonable. I agree with DN that the reasonableness of fees cannot be determined based on  
quantum only, without more information. While there is a significant difference between the total  
fees incurred by each side, the difference is not that significant when one takes into account the  
fact that the hourly rate of DN’s lead litigation counsel is almost double the hourly rate of GN’s  
litigation counsel. The hourly rate of DN’s lead litigation counsel is not unreasonable for a large  
Toronto law firm and in light of the fact that he is approximately ten years more senior than GN’s  
litigation counsel. In addition, it is clear from the evidence of both sides that the Brothers have  
considerable resources and that the hourly rates of a large Toronto firm are not disproportionate to  
the dispute and the resources of the parties.  
[59] As acknowledged by GN, section 249(4) of the Business Corporations Act does not apply  
in the circumstances of this case. While the discussion of this provision in the case law is not  
entirely irrelevant, it is my view that the parties’ conduct and reasonable expectations are the most  
important considerations in this case.  
[60] I reject GN’s argument that the payment of the MT April Account is not a term of the  
settlement and that, therefore, the Buy/Sell should have been executed without dealing with this  
issue. Preserving the status quo was a term of the settlement, and it was breached by GN. Further,  
the parties argued about a number of expenses while they were negotiating the terms of the  
Buy/Sell. GN failed to raise the issue of DN’s legal fees at the appropriate time, i.e. in advance of  
the two hearings that were scheduled by the Court to deal with all outstanding issues (first, the  
January 2022 hearing and, subsequently, the May 18, 2022 hearing). GN also failed to raise the  
issue of DN’s legal fees before entering into the May Settlement, which set May 18, 2022 as the  
deadline to execute the Buy/Sell. At the time of entering into the May Settlement, GN had received  
DN’s request for funds to pay the MT April Invoice and had complained to his litigation lawyer  
that DN’s request was “insane”. However, he waited five days after his acceptance of the offer to  
settle to raise the issue of the legal fees and to advise DN that he did not agree to transfer funds to  
pay the legal fees. In light of the foregoing, I agree with DN that the issue of the payment of the  
MT April Account needed to be determined before the execution of the Buy/Sell, and that it does  
- Page 15 -  
not lie in GN’s mouth to complain that the Buy/Sell was not signed by May 18, 2022 as the delay  
was caused by his conduct.  
[61] I also reject GN’s request that Miller Thomson’s account be referred to an assessment.  
Subsection 9(1) of the Solicitors Act provides as follows:  
Where a person, not being chargeable as the principal party, is liable to pay or has  
paid a bill either to the solicitor, his or her assignee, or personal representative, or  
to the principal party entitled thereto, the person so liable to pay or paying, the  
person’s assignee or personal representative, may apply to the court for an order  
referring to assessment as the party chargeable therewith might have done, and the  
same proceedings shall be had thereupon as if the application had been made by the  
party so chargeable.  
[62] In my view, GN and/or Maple do not have standing under section 9. Neither of them is  
liable to pay Miller Thomson’s invoices and neither of them has paid the invoices. Miller  
Thomson’s invoices are made to DS&D and have been paid by DS&D. The source of the funds  
used to pay the invoices is irrelevant, in my view. For instance, if a litigant borrows funds from a  
friend to pay his lawyer, it does not mean that the friend, as the source of the funds, has standing  
to apply for an assessment of the lawyer’s accounts. In this case, funds that came from Maple  
were used by DS&D to pay Miller Thomson’s invoices, just like other funds that came from Maple  
were used by DS&D to pay its other expenses.  
[63] I also find that GN’s interest in DS&D is insufficient to give him standing to apply for an  
assessment in the circumstances of this case. While the Brothers agree that they each own 50% of  
the Business and, given the manner in which the Business is structured, 50% of each of Maple and  
DS&D, this is not how this litigation was structured. Rather, the litigation reflects the registered  
corporate structure of each company. Thus, GN, CN and their company, Maple, sued DN, SN and  
their company, DS&D. In turn, DN and his company, DS&D, sued GN and his company, Maple.  
The reality of the litigation is that Maple sued DS&D and vice versa, and both incurred fees to  
respond to the other’s Application. DS&D’s legal fees and Maple’s legal fees were not incurred  
jointly or as part of a “joint business”.  
[64] Based on the circumstances of this case and the nature of the litigation, I conclude that GN  
and Maple do not have standing under section 9 of the Solicitors Act and I reject their request for  
an order referring the accounts rendered by Miller Thomson to an assessment.  
[65] Finally, in light of my finding that the parties have agreed to maintain the status quo until  
the execution of the Buy/Sell and the fact that GN has taken the position that he should be able to  
continue to use the funds of the Business to pay his legal fees, I decline at this time to order that  
- Page 16 -  
the parties cease paying legal fees from the Business.5 However, this conclusion is based on the  
assumption that this matter will be concluded very shortly by the execution of the Buy/Sell.  
D.  
CONCLUSION  
[66] Accordingly, I order Maple and GN to take the necessary steps to transfer $364,346.96 to  
DS&D from the revenues of the Business for the payment of the MT April Account.  
[67] Since both sides ask for an order enforcing the settlement between the parties, I am  
prepared to issue such an order. However, the parties have to finalize the language of the Buy/Sell  
and agree on a new date for the execution of the Buy/Sell as the date that was initially agreed upon  
has passed and gone. Given the history of this matter and the fact that a Buy/Sell has yet to be  
executed more than 6 months after the December Settlement, it is important to avoid further delay  
and to ensure that the Buy/Sell process is not derailed yet again. Consequently, I am seizing myself  
of this matter with respect to any issue that may arise before the execution of the Buy/Sell. If the  
parties cannot reach an agreement, counsel are to contact my assistant to schedule a case  
conference. At the case conference, the Court may resolve summarily any issue raised or may make  
any order deemed appropriate under Rule 50.13(6) of the Rules of Civil Procedure.  
[68]  
If costs cannot be agreed upon, DS&D, DN and SN shall deliver submissions of not more  
than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this  
decision. Maple, GN and CN shall deliver their responding submissions (with the same page limit)  
within 14 days of their receipt of the submissions of DS&D, DN and SN. The submissions of all  
parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.  
Vermette J.  
Date: July 12, 2022  
5 While GN asks for an order that the parties cease paying legal fees from the Business, he also seeks an  
order that he be permitted to pay his legal fees from the Business in an amount equal to the legal fees paid  
by DN. Thus, in reality, the orders sought by GN amount to an order that only DN cease paying legal fees  
from the Business.  


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