CITATION: Paul v.1433295 Ontario Limited, 2015 ONSC 3588
DIVISIONAL COURT FILE NO.: 2068/14 DATE: 20150618
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KENT, MOLLOY & LEDERER JJ.
BETWEEN:
DOREEN G. DOWNS PAUL and RUSSELL G.V. PAUL
Plaintiffs/Respondents
– and –
1433295 ONTARIO LIMITED and PARMJIT SINGH BAHIA
Defendants/Appellants
James C. Morton, for the Plaintiffs/Respondents
Dante D. Gatti, for the Defendants/Appellants
HEARD at London: April 30, 2015
LEDERER J.:
Introduction
[1] This is an appeal and cross-appeal. They reflect on a business relationship gone bad.
Background
[2] The business was a hotel purchased by the appellants (the defendants at the trial). The respondent, Russell G. V. Paul, is a real estate broker. He acted as such on the purchase of the hotel. The commission associated with the purchase was converted into a shareholder loan in exchange for the two respondents (Russell G. V. Paul and his wife, Doreen G. Downs Paul), each receiving a 10% share in the corporation that became the owner of the hotel. The apparent inequity in this division of ownership when set up against the respective contributions to the purchase (13 to 1 in favour of the appellants) was accounted for by the expected involvement of Doreen G. Downs Paul in the management of the hotel. This was done to allow the appellant, Parmjit Singh Bahia, to focus on his other investments, particularly those in the United Kingdom where he lived.
[3] Doreen G. Downs Paul had no experience managing hotels. The approach to management, on which the purchase was founded, did not last for long. The parties had a falling- out. The appellant, Parmjit Singh Bahia, wanted the respondents to be removed from any involvement in the operation of the hotel:
Mrs. Downs Paul was ousted as the manager by Mr. Bahia and both the plaintiffs were banished from the hotel by Mr. Bahia following a phone call to him from Mr. Paul who complained to him about the manner in which the Hotel was being managed by his wife.[^1]
[4] Both the factum prepared on behalf of the appellants and that of the respondents indicate that Parmjit Singh Bahia, as the sole director of the corporation that owned the hotel (the appellant, 1433295 Ontario Limited), “…adopted a resolution which triggered the Paul’s dissent and appraisal rights according to s. 185 of the [Ontario Business Corporations Act]” (“OBCA”).[^2] The respondents say this occurred on March 18, 2008; the appellants state it was March 19, 2008.[^3] The decision of the trial judge is less certain. Her reasons note that the appellant, Parmjit Singh Bahia, twice provided notice of a special meeting, the principal purpose of which was to pass a resolution to reduce the number of common shares. There was a special meeting held on March 19, 2008, but little, if anything, is said about what took place. What is clear is that, prior to the meeting, by way of written notice on April 24, 2008, the respondents indicated their disagreement with the proposed resolution and exercised their rights of dissent and appraisal. The following day, April 25, 2008, Parmjit Singh Bahia offered to purchase the shares of the respondents for what he determined to be the fair market value of the assets of 1433295 Ontario Limited, being $6,120 per share, as of March 18, 2008.[^4] The offer was not accepted.
[5] The parties did agree that March 18, 2008 was the relevant date for valuation of the hotel. The respondents commenced this action on August 14, 2008. They were granted leave to amend their Statement of Claim and, as a result, on September 1, 2011, added allegations that actions of Parmjit Singh Bahia devalued their interest in the hotel and provided inappropriate benefits to himself in violation of, among other things, s. 248[^5] of the OBCA.[^6]
The decision
[6] The trial was heard by Madam Justice Nolan over thirteen days during February, March and May of 2013. Her reasons were released on December 13, 2013. She concluded that:
The en bloc value of the shares was $1,700,000, and, accordingly, the plaintiffs (Russell G. V. Paul and Doreen G. Downs Paul) should be paid $170,000 each, as fair value of their shares.
The plaintiffs (Russell G. V. Paul and Doreen G. Downs Paul) should receive payment of amounts owing to them on their shareholders’ loans, less the amount of $10,000 owed by the plaintiffs from an unpaid cost award.
That in regard to the claims for oppression:
i. The removal of the plaintiff, Doreen G. Downs Paul, as a director was not oppressive;
ii. The accrual and payment of interest on shareholders’ loans was not oppressive;
iii. The wage paid to the defendant, Parmjit Singh Bahia, was not oppressive; and
iv. The utilization of sections 57(1) and 168(1)(h) was oppressive and the plaintiffs, Russell G. V. Paul and Doreen G. Downs Paul, should receive payment of $45,000 damages.[^7]
The issue
[7] The only issue before this court was the valuation of the shares.
[8] The appellants argued that the value of the shares should be assessed at $12,405.00 per share, rather than $17,000.00, as determined by the trial judge. This was consistent with the evidence of the expert they retained, who testified and on whose report and evidence they relied.
[9] On the cross-appeal and in their factum, the respondents took the position that the value determined by the trial judge was too low. They suggested the presence of errors in the analysis of the trial judge in respect of the value of the hotel which, when reflected in the subsequent valuation of the shares, would cause their value to be lower than their “actual fair value”.
Analysis
(a) The value of the hotel
[10] The first step in determining the price to be attributed to the shares was the assessment of the value of the hotel. The trial judge heard evidence from an assortment of witnesses. These included, for the respondents, Russell G. V. Paul, and an expert he retained, Ben Lansink. The appellant, Parmjit Singh Bahia, also testified, as did Monique Rosszell, Brian Keith Stanford and Stephen Raymer, each of whom, at the request of the appellants, had undertaken work and prepared reports in furtherance of understanding the value of the hotel.
[11] With this and other evidence in hand, the trial judge found the value of the hotel to be $4,100,000.
[12] The appellants agree with this conclusion. The respondents (who are the appellants on the cross-appeal) do not. They submit that the trial judge made errors which resulted in the value of the hotel being determined arbitrarily as an inference of fact based on no direct evidence. The value is said to be too low. The two areas of concern are: first, the suggested failure of the trial judge to explain or utilize an appropriate capitalization rate; and the second, the conclusion of the trial judge that “a 4 percent reserve for asset replacement should be included in determining the net operating income of the Hotel”.[^8] The former is a measure of the net operating income as a percentage of the value of the asset (the real estate). Thus, the lower the capitalization rate (the lower the percentage of the value of the property is represented by the annual income) the higher the value of the property. If the latter is included, it is a cost which lowers the income and, it follows, the value of the property whatever capitalization rate is applied.
[13] After submissions, the court advised counsel that it was unprepared to find that the trial judge had made any error in respect of her calculation of the value of the hotel.
[14] The respondents relied on two reports: one prepared by the respondent, Russell G. V. Paul, which valued the hotel at $8,000,000; and another by Ben Lansink, which suggested a value of $6,140,000. It goes without saying these values are far in excess of the finding of the trial judge. She dispensed with the work of the respondent on the basis that he was not a qualified appraiser:
Mr. Paul prepared his own valuation of the Hotel even though he is not a qualified appraiser. In my view, it was presumptuous of him to take that approach to providing the court with evidence required to determine a proper share valuation. His report was not helpful and the presentation of his ‘opinions’ resulted in a considerable waste of court time, both in terms of direct and cross-examinations. While Mr. Paul is an experienced real estate broker who has considerable knowledge about the buying and selling of hotels, his views as an interested party are of no value to the court. The fact that he assigned the highest value to the Hotel was not surprising, given his interest in the outcome.[^9]
[15] As the trial judge saw it, the impact of the “report” prepared by Russell G. V. Paul also worked to raise questions about the objectivity of Ben Lansink, who relied on its findings:
Mr. Paul’s presentation of a report had another unfortunate result. His own expert Mr. Lansink made reference to various aspects of Mr. Paul’s ‘findings’ in his technical report prepared to respond to the defendants’ experts’ reports to rebut their opinions. In doing so, it brought Mr. Lansink’s objectivity into serious question.[^10]
[16] There were other problems associated with the evidence of Ben Lansink. He applied a capitalization rate of 7.5% which he arrived at by comparing the capitalization rate for six hotels sold around the time of the “Valuation Day”. The trial judge questioned this conclusion. Evidence before her demonstrated that there were, in fact, 21 hotel transactions during the same period. The average capitalization rate of all 21 transactions was 10.20% and the median rate 10.9%:
Even accepting that a number of the 21 transactions were not comparable to the Hotel, there were a number which had been properly used as comparables by the other appraisers and which I find Mr. Lansink should have included. Had he done so, the average or median capitalization rate would have been in the 10.2 per cent to 10.9 per cent range, in line with that of the other appraisers.[^11]
[17] Relying on the lower capitalization rate resulted in a higher value.
[18] In arriving at his opinion of the net operating income of the hotel, Ben Lansink did not include a 3% management fee. This set him apart from “all the other experts”, who did.
[19] Lowering the costs increases the income which, in turn, when applied to the selected capitalization rate increases the value of the property being assessed, in this case, the hotel.
[20] It was the opinion of Ben Lansink that there was no need for a 4% reserve to account for asset replacement. It was included in the amount set aside for “repairs and maintenance”.[^12] The trial judge pointed out that this perception was not supported by a review of the financial statements of the hotel. She noted that, in addition to the amounts expended for repairs and maintenance, there was an additional $617,845 spent from the time the hotel was purchased to February 28, 2008. This was close to the 4% suggested as a reserve for asset replacement that had been included by the other appraisers in their opinions of the value of the hotel.[^13] For this and other reasons, the trial judge found that a 4% reserve for asset replacement should be included in determining the net operating income of the hotel.
[21] By failing to include a reserve for asset replacement, Ben Lansink lowered the costs and, accordingly, increased the prospective value of the hotel.
[22] What is apparent is that the trial judge reasonably and properly considered the evidence concerning both the capitalization rate and the reserve for the replacement of assets. I repeat what was said to counsel at the hearing of the appeal. There is no reason to set aside the findings of the trial judge with respect to the valuation of the hotel. These two considerations provide no basis for doing so.
[23] Moreover, there was substantial evidence from the other experts that were called to support and sustain the value assessed by the trial judge. She reviewed the evidence and work of Monique Rosszell. She pointed out its strengths and noted its weaknesses. Using an income capitalization approach, Monique Rosszell assessed the value of the hotel as $4,200,000; using the sales comparison approach, she established a range for the value of the hotel from $3,200,000 to $6,400,000.[^14]
[24] Brian Keith Stanford and Stephen Raymer work at the same firm. Their work took account of economic factors that impacted the local economy, tourism statistics and projections, age of the hotel and the updating that it required. With this work in hand, Brian Keith Stanford determined that a capitalization rate of 11% was appropriate. This evidence established a value of $4,100, 000 as of the valuation day, being March 18, 2008.[^15]
[25] Interestingly: “A report of the same day but effective March 1, 2010, put the value of the Hotel at $3,600,000, a significant decrease in the value in just under two years.” It was pointed out that this would negatively impact the ability of Parmjit Singh Bahia to obtain any financing he required.[^16]
[26] From this, the trial judge concluded:
Overall, the greatest discrepancy in the various values of the Hotel on an income basis is in the capitalization rate used. Mr. Lansink applied a rate that I find was not supported in his report, as he did not consider a number of hotels in the comparison that should have been included. Using the correct median capitalization rate, the value of the Hotel comes within the range of the other valuations. Incorporating a management fee and reserve would bring the valuation between $4,100,000 and $4,200,000 as suggested by the PKF report and the HVS report. I find that $4,100,000 is the value of the hotel to be used in assigning a share value. While I am aware that the second PKF valuation as of March 2010 reduced the value by approximately $500,000, the law is clear that I must use the Valuation Day value for calculating the fair value of the shares.[^17]
[27] I repeat, yet again, there is no reason to set aside the value of the hotel ($4,100,000) as established by the trial judge.
(b) The value of the shares
[28] I begin by observing that the respondents (the plaintiffs at the trial) did not call any witnesses, or lead any evidence, as to the value of the shares. The only evidence that was presented came from Donna Marie Bain Smith, an expert called by the appellants.
[29] Donna Marie Bain Smith provided an opinion as to the en bloc share value of the appellant corporation, 1433295 Ontario Limited (the owner of the hotel). As the trial judge understood it, using the value of $4,100,000 for the hotel, Donna Marie Bain Smith subtracted the net book value, tax shield foregone and future income taxes to establish a share value of between $1,226, 000 and 1,256, 000.[^18] The trial judge observed that, on this basis, the average en bloc share value was $1,240,500.[^19]
[30] This calculation was said by the trial judge to reflect an asset-based approach to the assessment of the value. The trial judge observed that the witness had acknowledged that she could have used an earnings-based approach. While recognizing that the asset-based analysis is an accepted approach, the trial judge said the method “suggested by the plaintiff [the respondent], the income/investment method has far more support in the case law.”[^20] With this understanding, the trial judge found that the income/investment approach was the one she should use. The problem is self-evident. In the absence of anything from the respondents (the plaintiffs at trial), there was no evidence demonstrating the application of such an approach to the value of the hotel.
[31] The trial judge undertook her own analysis. She found support for this in Brant Investments Ltd. et al. and Keeprite Inc. et al.[^21] In that case, there was a proceeding alleging oppression and a second, corresponding action to fix the value of shares owned by dissenting shareholders. The actions were tried together. The judgment dealt with both. Three expert witnesses gave valuations. There was great disparity between them ($9.00, $22.00 and $28.00 per share[^22]). Generally, the judge was inclined to find the analysis that led to the lowest value as the more appropriate. Nonetheless, it was too low. The valuation accepted a future for the company that was comparable to historic levels, yet the value of the shares as the expert had assessed it was out of sync with historic dealings with blocks of its stock.[^23]
[32] The judge saw three possible resolutions to the dilemma:
To resolve the dilemma in which I find myself I recognize three possible methods. The first is to make my own selection of controlling factors and then apply the techniques adopted by the experts. The second is to make my own selection of controlling factors and remit the matter for fresh consideration and further evidence. The third is to arrive at my own valuation upon my view of the evidence as a whole and without resort to any sophisticated method.[^24]
[Emphasis added]
[33] He chose the third option:
Fully conscious of [the third option’s] frailties and the criticisms to which they will give rise, I have selected [the third option] as the least of the available evils.[^25]
[34] Based on this result, the trial judge concluded that it was appropriate for her to put aside the work of Donna Marie Bain Smith and undertake an analysis in recognition of the general preference for the income/investment. On this basis, she determined:
Accepting the approach articulated by Anderson J. in Brant set out earlier in this judgment, that is to arrive upon my own valuation based on my view of the evidence as a whole and without resort to any sophisticated method, I fix the en bloc value of the shares at $1,700,000 or $17,000 per share. I came to this value by accepting the value of the Hotel at $4,100,000, deducting the mortgage, allowing the accrued interest of Mr. Bahia and the management fees that were paid to him and approved by the shareholders and also acknowledging the $700,000 required for much needed upgrades to the hotel identified by both the PKF and the HVS reports.[^26]
[35] In coming to this conclusion in this way, the trial judge went beyond what the law allows. It is trite to observe that, to be useful, expert evidence must be necessary to assist the court on issues that are beyond its purview; in short, when the court needs help understanding the issue.[^27] In this case, the issue at hand was the valuation of the shares. As a general proposition, it is not difficult to see that this is a question the court would need assistance to resolve. Whatever Brant Investments Ltd. et al. and Keeprite Inc. et al. may stand for, it does not allow the trial judge to set aside the only expert evidence the court received in preference for her own analysis reflecting her understanding of a different methodology (the “income/investment” method) which was not supported by any expert evidence at the trial but, based upon her assessment, “has far more support in the case law”.[^28]
[36] It should be said that in Brant Investments Ltd. et al. and Keeprite Inc. there were two matters of concern that affected the valuation:
(1) should “fair value” as determined by the court include a premium for forcible taking; and,
(2) should “fair value” as determined by the court include an element of value attributable to the synergies anticipated from the proposed transaction which gave rise to the dissent?
[37] The judge rejected both as considerations that needed to be accounted for in the valuation. Having dealt with these concerns, the judge evaluated the work of the three expert witnesses, favoured one but was not satisfied with the value it arrived at. With this foundation, the judge was able to come to a value without any further “sophisticated” analysis. He explained his approach:
The court is to be guided by the evidence given by the experts but is not bound by their opinions. In arriving at my valuation I do not propose to go through the valuation exercise followed by the experts, substituting my own conclusions as to the basic ingredients for theirs. The wide disparity exhibited by them in the application of their technique does not inspire me with any confidence in the result which I would achieve as an amateur in its application. Consequently, I do not intend to examine the fine details of the exercise gone through by each of the experts, although I recognize that for them they were essential to the integrity of the process. Rather, I intend to focus on the most important elements and to express my preferences and conclusions with respect to those. In the light of those preferences and conclusions, and the other evidence available to me, I have arrived at a valuation.[^29]
[38] This is quite different from what the trial judge did in this case. The case law does not extend to a judge the right to put to one side the only expert evidence the court received and rely instead on his or her own independent analysis.
[39] In Palmer v. Palmer,[^30] the court considered an appeal from the decision of an arbitrator. It concerned, in part, the valuation of a photography business. An expert was called and gave evidence. His testimony was straightforward, credible and he was not challenged in terms of his expertise.[^31] In some fashion that was unclear to the judge who heard the appeal, the arbitrator also had before him a report done by a chartered accountant.[^32] The chartered accountant did not appear and, in any event, could not have been qualified as an expert in the valuation of the business.[^33] The arbitrator had arrived at a value, in part, by picking between pieces of the evidence of the expert, the report of the chartered accountant, as well as appraisals of the photographic equipment that was used in the business.[^34]
[40] The court found that, using only pieces of the expert’s evidence, none of which had been challenged, and relying on the report of the chartered accountant, was an error in law.[^35]
[41] In Palmer v. Palmer, there was reference to Ross v. Ross.[^36] In that case, the trial judge considered two methods of valuing the stock options. One was provided by the appellant’s expert. The second was tendered by the respondent with no expert evidence supporting it. It had been referred to in an earlier judgment.[^37] The trial judge opted for the latter approach. In considering the use by the trial judge of expert opinion, the Court of Appeal noted that she did not accept some of the assumptions[^38] the expert had made and found that the evidence was not persuasive.[^39] The judge had failed to identify the assumptions that concerned her and did not explain why the evidence was left wanting.[^40]
[42] The decision of the Court of Appeal found that the trial judge erred. She accepted a valuation methodology that the circumstances did not allow. It used hindsight when the valuation was required to be as of the date of the separation of the parties. In doing so, she accepted a method that was not founded in the evidence. What the trial judge should have done was to focus on the approach that was supported by the expert evidence and, with reference to that evidence, make any adjustments she concluded were proper based upon that scrutiny and logic.[^41]
[43] The same applies here. Rather than venture out on her own, the trial judge should have accepted the evidence of the only expert who testified. As it is, there were no criticisms of the work done by Donna Marie Bain Smith. In fact, the trial judge found the approach used by Donna Marie Bain Smith to be valid. Her evidence was essentially unchallenged.[^42] The trial judge simply preferred the alternative method of analysis.
[44] The problem is manifest. As pointed out by counsel for the appellant, although apparently drawn to the income/investment method, this was not consistent with the analysis the trial judge undertook. The factors she brought to bear were the value of the hotel ($4,100,000) from which she subtracted a value for the “required renovations” ($700,000) and a deduction for the value of “the ‘mortgage’”.[^43] Her decision makes no specific reference to the value of the liability represented by the mortgage.[^44] Common sense suggests it must have been $1,700,000. I say this only because it is the following calculation that arrives at the en bloc value of the shares that the trial judge ultimately applied:
$4,100,000 (the value of the hotel)
minus
$700,000 (the cost of the required renovations)
minus
$1,7000,000 (the en bloc value of the shares).
[45] There is nothing in this which refers to or relies on income or investment. It is essentially an asset value calculation.
[46] Having said this, there is no evidence confirming a mortgage value of $1,700,000. To the contrary, the liabilities shown on the financial statements are quite different. The balance sheet for the year ended February 14, 2008 identifies the debts of 1433295 Ontario Limited 32 days before the valuation date (March 18, 2008). It identifies the amount of a mortgage to the Business Development Bank of Canada (“BDC”) as $1,088,750.[^45] The balance sheet shows to debts owing to shareholders: one in the amount of $100,000; and the other $1,783,561. There is no way of relating any of this to a mortgage value of $1,700,000.
[47] The factum of the appellant goes on to point out the balance sheet refers to a total of ten assets. Yet only the hotel is referred to in the valuation undertaken by the trial judge. There were a total of eight liabilities, but the only one referred to by the trial judge was the secured debt owing to the BDC.[^46] The cost of renovations would be a future liability. None of this fits and leaves unexplained the rationale of the trial judge in arriving at the en bloc value of $1,700,000.
Conclusion
[48] For the reasons reviewed, the cross-appeal is dismissed and the appeal allowed. The question that remains is what remedy should be implemented. Consideration was given to ordering a new trial. Counsel were asked for their submissions. It seems, on the one hand, pointless and, on the other, unfair to make such an order. Pointless because, on the evidence as presented and properly considered, a court would have no option but to accept the evidence of Donna Marie Bain Smith and her valuation of the shares (en bloc $1,240,500 or $12,405 per share). It would be unfair because it would allow the respondent to gather fresh evidence and, perhaps produce a new report justifying some other (higher?) number. This is not a situation in which a second chance and more court resources are warranted. The prejudice to the appellants would be significant.
[49] The judgment is varied to impose the en bloc value of $1,240,500 for the shares.
Costs
[50] As agreed to by the parties, the result being clearly in favour of the appellants, costs are awarded payable by the respondents to the appellants in the amount of $15,000.
___________________________ LEDERER J.
KENT J.
MOLLOY J.
Released: 201506
CITATION: Paul v.1433295 Ontario Limited, 2015 ONSC 3588
DIVISIONAL COURT FILE NO.: 2068/14 DATE: 20150618
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KENT, MOLLOY & LEDERER JJ.
BETWEEN:
DOREEN G. DOWNS PAUL and RUSSELL G.V. PAUL
Plaintiffs/Respondents
– and –
1433295 ONTARIO LIMITED and PARMIT SINGH BAHIA
Defendants/Appellants
REASONS FOR JUDGMENT
LEDERER J.
Released: 20150618
[^1]: Paul v. 1433295 Ontario Limited, 2013 ONSC 7002, at para. 8. [^2]: R.S.O. 1990, c. B. 16. [^3]: Responding Parties Factum, at para. 6; and Factum of the Defendants/(Appellants), at para. 5. [^4]: Paul v. 1433295 Ontario Limited, supra, (fn. 1), at paras. 14-17. [^5]: Oppression remedy which allows for shareholders (and others) to bring an action against the corporation when the company acts in a way that is oppressive or unfairly disregards the interests of shareholders. [^6]: Paul v. 1433295 Ontario Limited, supra, (fn. 1), at para. 18. [^7]: Ibid, at para 130, Responding Parties Factum, at para. 8; and Factum of the Defendants/(Appellants), at para. 7. [^8]: Paul v. 1433295 Ontario Limited, supra, (fn. 1), at paras. 67. [^9]: Ibid, at para. 55. [^10]: Ibid, at para. 56. [^11]: Ibid, at para. 64. [^12]: Ibid: The decision of the trial judge refers to this as “repairs and replacement” at para. 62; and as “repairs and maintenance” at para. 65. The Lansink Report (Trial Exhibit 4) at p. 124 refers to “Repairs and Maintenance.” [^13]: Ibid, at para. 65. [^14]: Ibid, at paras. 69 and 70. [^15]: Ibid, at para. 78. [^16]: Ibid, at para. 78 [^17]: Ibid, at para. 87. [^18]: Ibid, at para. 88. [^19]: Ibid, at para. 92: It is, I confess, difficult to see how this can be. The sum of $1,226, 000 + 1,256, 000 is $2,482,000. Thus, the average of them would be $2,482,000, divided by 2, being $1,241,000. Without explanation to account for this apparent inconsistency, to my mind, the difference is not enough to require that any further account of it be taken. [^20]: Ibid, at para. 90. [^21]: 1987 4366 (ON SC), [1987] O.J. No. 574, 60 O.R. (2d) 737. [^22]: Ibid, at para. 112. [^23]: Ibid, at para. 129. [^24]: Ibid, at para. 130. [^25]: Ibid, at para. 130. [^26]: Paul v. 1433295 Ontario Limited, supra, (fn. 1), at para. 94. [^27]: R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R.9, at paras. 17 and 22. [^28]: See para. [30], above and fn. 20, herein. [^29]: Brant Investments Ltd. et al. and Keeprite Inc. et al, supra, (fn. 2), at p. 775. [^30]: 2010 ONSC 1565. [^31]: Ibid, under The Specific Issues (1). [^32]: Ibid, at paras. 31 and 33. [^33]: Ibid, at para. 33. [^34]: Ibid, at paras. 35 and 42. [^35]: Ibid, at para. 42. [^36]: 2006 41401 (ON CA), [2006] O.J. No. 4916. [^37]: Ibid, at paras. 13, 14 and 30. [^38]: Ibid, at para. 47. [^39]: Ibid, at para. 47. [^40]: Ibid, at para. 48. [^41]: Ibid, at paras. 52 and 53. [^42]: Paul v. 1433295 Ontario Limited, supra, (fn. 1), at paras. 89 and 90. [^43]: Ibid, at para. 94. [^44]: Ibid, at para. 94. [^45]: Trial Exhibit 17. [^46]: Ibid