DATE: 20051104

DOCKET: C41509

COURT OF APPEAL FOR ONTARIO

RE:

ED HILDEBRAND (Respondent) –and– ULRICH SCHINDLER (ULI SCHINDLER) and BEAMSVILLE STEEL WORKS LTD. (Appellants)

BEFORE:

LASKIN, ROSENBERG and LAFORME JJ.A.

COUNSEL:

Margaret A. Hoy

for the appellant

W.E. Heelis

for the respondent

HEARD & RELEASED ORALLY:

November 2, 2005

On appeal from the judgment of Dandie J. of the Superior Court of Justice dated May 10, 2004, made at St. Catharines, Ontario.

E N D O R S E M E N T

[1] The appellant made four submissions. First, the appellant submits that the trial judge made a palpable and overriding error in finding a shareholder’s agreement. We disagree. There is ample evidence to support the trial judge’s finding. That evidence included the testimony of Mr. Maulson and Mr. Vanderkuoy and the annual corporate tax returns, which the appellant signed.

[2] Second, the appellant submits that the trial judge erred in making a finding of oppression. Again, we disagree. The trial judge found that the appellant’s refusal to acknowledge that the respondent was a shareholder was sufficient to make out oppression under the statute. We are not persuaded of any basis to interfere with that finding. In our view, in the circumstances of this case, the appellant’s conduct came within the scope of section 248 of the Ontario Business Corporations Act.

[3] Third, the appellant submits that the trial judge erred in ordering an advance payment of $75,000.00. We think that there was evidence to support the trial judge’s order. The trial judge has a broad jurisdiction to remedy the effects of oppression. The evidence shows that the respondent’s share was worth at least $75,000.00, a fact effectively recognized by the appellant in his discussions with the bank.

[4] Finally, the appellant submits that the trial judge erred in ordering costs on a substantial indemnity basis and, in doing so in the absence of a bill of costs from the respondent’s counsel. We do not accept this submission. Although the Rules call for a bill of costs, we think that on the facts of this case the trial judge had discretion to fix costs in the absence of a bill. Moreover, the award of substantial indemnity costs was within his discretion, especially considering that the appellant prolonged what should have been a simple evaluation determination by refusing to admit that the respondent was a shareholder.

[5] For these brief reasons, the appeal is dismissed, with costs fixed in the amount of $6,000.00 inclusive of disbursements and G.S.T.