Docket: T-388-84
Citation: 2011 FC 1001
Ottawa, Ontario, August 17, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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CONNOLLY CONTRACTORS LIMITED
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Plaintiff
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and
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BEER PRECAST CONCRETE LIMITED
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Defendant
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AMENDED REASONS
FOR ORDER AND ORDER
[1]
An
action was commenced by way of Statement of Claim in 1984.
[2]
Ms.
Elizabeth Wasiuk of the
Federal Court wrote to the Law Firm of Sim, Lowman, Ashton & McKay LLP,
Barristers and Solicitors, on August 8, 2011, indicating that the sum of
$2,000.00 was paid into Court on March 15, 1984 by Sim, Hughes, Ashton &
McKay on behalf of the Plaintiff. Ms. Wasiuk requested
that the necessary be effected for the funds tendered to be paid out of Court
either to the credit of the party or to the name of the solicitors who filed
the tender in trust.
[3]
An
attempt to review the dockets of entries at the Federal Court office was
unsuccessful as this action predates only computer list.
[4]
Judgment
was signed by Mr.
Peter A.K. Giles, Associate
Senior Prothonotary, on May 4, 1987. Copy of the Judgment is contained in the
Motion Record.
[5]
The
file was retrieved from storage and determined that Connolly Contractors
Limited went into receivership in 1985. A letter was located that dated from
November 29, 1985, Ernst & Whinney Inc., which indicates it is acting as
Receiver and Manager for Connolly Contractors Limited.
[6]
From
a review of the above specific file of the Law Firm, it appears that subsequent
to Connolly Contractors Limited going into receivership, the Law Firm received
its instructions from Mr. Michael R. Kestenberg
and/or Mr. Steven Stieber,
solicitors for Connolly Contractors Limited, at Aiken, Capp, 2 St. Clair
Avenue East, Toronto, M4T 2R1.
[7]
A
review of old accounting documents indicate that fees rendered by Sim, Hughes, Ashton
& McKay LLP were paid by the Toronto Dominion Bank upon instruction from Aiken Capp.
[8]
The
Law Firm made various internet searches to determine if the firm of Aiken Capp still exists
and now understands it was dissolved in or about 1988.
[9]
Although
the Law Firm was able to locate Mr. Kestenberg and
requested his assistance in an attempt to locate Connolly Contractors Ltd., Mr. Kestenberg advised the
Law Firm that he is not in possession of any files, nor has he any information
with respect to Connolly Contractors Limited.
[10]
Searches
were conducted on the online service of ONcorp to ascertain if any corporate
record existed, which may relate to Connolly Contractors Limited by which contact
information could be provided. Subsequent to that, records did indicate that
the corporation of Connolly Contractors Limited had been dissolved at the
request of the Corporations Tax Branch, Ministry of Finance. No further records
were found.
[11]
Therefore,
subsequent to all of the above, the funds are made payable to Sim, Lowman,
Ashton & McKay LLP In Trust. The funds are to be deposited in the Law
Firm’s trust account with an application to be made to pay the funds in trust
into the Law Society’s Unclaimed Trust Fund; Trustee Services Department, Law
Society of Upper Canada, 130 Queen Street West, Toronto, M5H 2N6.
[12]
As
such, the sum of $2,000.00 plus interest which remains in the Court is to be
paid out of Court to the credit of the solicitors for the Plaintiff, Sim,
Lowman, Ashton & McKay LLP for the purpose specified above.
ORDER
THIS COURT
ORDERS that the sum of $2,000.00 plus interest (from May 4, 1987) which
remains in Court be paid out of the Court to the credit of the solicitors for
the Plaintiff, Sim, Lowman, Ashton and McKay LLP.
“Michel
M.J. Shore”
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