Court File and Parties

CITATION: Szijarto v. Densham, 2007 ONCA 747

DATE: 20071105

DOCKET: C46276

COURT OF APPEAL FOR ONTARIO

WINKLER C.J.O., DOHERTY and SHARPE JJ.A.

BETWEEN:

RICK SZIJARTO

Plaintiff (Defendant to the Counterclaim) (Appellant)

and

GILRAY DENSHAM, CAST GROUP OF COMPANIES INC., and 1516507 ONTARIO INC.

Defendants (Plaintiffs by Counterclaim) (Respondents)

Harry W. McMurtry for the appellant

Peter-Paul E. Du Vernet for the respondents

Heard and orally released: October 25, 2007

On appeal from the judgment of Justice J.M. Spence of the Superior Court of Justice dated October 27, 2006.

ENDORSEMENT

[1] The post-judgment events have to a large degree overtaken the appeal. The proposed fresh evidence is, in our view, not germane to any of the issues that can be properly addressed on the appeal.

[2] We reject the argument that the trial judge erred in failing to grant specific performance of the shareholders’ agreement insofar as it related to the appellant’s shares in the company. The trial judge was not asked to address the applicability of the shareholders’ agreement to the appellant’s personal shares apart from the applicability of the agreement to all of the shares that were in issue.

[3] The appellant also submits that the trial judge misinterpreted the meaning of the defined term “voluntary retirement” in para. 1.06 of the shareholders’ agreement. It is unclear to us whether the trial judge reached any definitive conclusion as to the meaning of that phrase (see para. 61 of the reasons of the trial judge). It was in fact a non issue given the trial judge’s understanding of the nature of the specific performance request before him and the trial judge’s ultimate determination that the shareholders’ agreement did not apply.

[4] We see considerable force in Mr. McMurtry’s, counsel for the appellant, submission as to the proper interpretation of the words “voluntary retirement” in s. 1.06 of the agreement. However, it is not for this court to engage in the interpretative process, which is not necessary to the determination of the appeal, despite the apparent strength of the interpretation put forward on behalf of the appellant.

[5] Mr. Du Vernet, counsel for the respondents, has specifically acknowledged that the proper interpretation of the phrase “voluntary retirement” is an open question and is not res judicata. The meaning of that phrase will, no doubt, become important in any subsequent litigation relating to the proper valuation date of the appellant’s shares in light of the events subsequent to the appeal.

[6] The appeal is dismissed. Costs to the respondents fixed at 10,000, inclusive of G.S.T. and disbursements.

“W. Winkler C.J.O.”

“Doherty J.A.”

“Robert J. Sharpe J.A.”