DATE: 20050315

DOCKET: C41092

COURT OF APPEAL FOR ONTARIO

RE:

MARTIN CINA and BRENDA CINA (Appellants) – and – TIM J. HILBORN (Respondent)

BEFORE:

LASKIN, SHARPE and MacFARLAND JJ.A.

COUNSEL:

Morris Manning, Q.C.

for the appellants

Brian Law and Lesley Lane

for the respondent

HEARD & RELEASED ORALLY:

March 10, 2005

On appeal from judgment of Justice C.A. Tucker of the Superior Court of Justice dated November 14, 2003.

E N D O R S E M E N T

[1] The trial judge found that the solicitor was not negligent. The appellants submit that she erred in so finding. They contend that the solicitor breached his duty to warn of the risks to a minority shareholder in proceeding without a unanimous shareholders agreement.

[2] Even if we were to accept the appellants’ contention, we agree with the respondent that the appeal must fail on causation and damages.

[3] In the separate oppression proceedings, the appellant, Mr. Cina, was paid his shareholder’s loan with interest, and also a settlement amount reflecting the fair value of his shares. The parties reached that settlement on the eve of a reference to determine the value of Mr. Cina’s shares.

[4] For the appellants to succeed on this appeal, they would have to show that even if the solicitor warned Mr. Cina of the risks of proceeding without a shareholders agreement, there was a reasonable possibility that he would have reached an agreement with Mr. Bain and that the agreement would have given him more compensation than the amount he received in the oppression proceedings.

[5] On the record and the findings of the trial judge, we are not satisfied that the appellants have met this burden. The appeal is therefore dismissed.

Costs

[6] The respondent is entitled to his costs on a partial indemnity basis in the amount of $15,000, inclusive of disbursements and Goods and Services Tax.

“John Laskin J.A.”

“Robert J. Sharpe J.A.”

“J. MacFarland J.A.”