Paragon Development Corp. v. Sonka Properties Inc.

Paragon Development Corporation et al. v. Sonka Properties Inc. et al. Marka Properties Inc. et al. v. Sonka Properties Inc. et al. [Indexed as: Paragon Development Corp. v. Sonka Properties Inc.]

103 O.R. (3d) 481

2011 ONCA 30

Court of Appeal for Ontario,

Weiler, Watt and Karakatsanis JJ.A.

January 17, 2011

Corporations -- Shares -- Trial judge entitled to find that deceased's surviving husband was beneficial owner of shares without finding that trust in favour of husband existed or that fraud had been committed -- Definitions of "beneficial interest" and "beneficial ownership" in Business Corporations Act indicating that beneficial interest can exist outside finding that trust exists or that fraud has taken place -- Beneficial owner being one who has equitable claim to shares and not limited to ownership through trustee -- Business Corporations Act, R.S.O. 1990, c. B.16, s. 1(1).

The appellants appealed the trial judge's finding that although the deceased's estate was the legal owner of certain shares, the beneficial owner of the shares was the deceased's surviving husband, M. They submitted that in order to come to the conclusion that M was the beneficial owner of the shares, the trial judge would have had to find either that there was a trust in favour of M or that a fraud had been committed.

Held, the appeal should be dismissed.

The definitions of "beneficial interest" and "beneficial ownership" in s. 1(1) of the Business Corporations Act indicates that beneficial interest can exist outside a finding that a trust exists or that a fraud has taken place. A beneficial owner is one who has an equitable claim to shares, whether or not they have been issued and appropriated to him. Beneficial ownership is not limited to ownership through a trustee. The trial judge implicitly found that the deceased was a bare trustee who held title to the shares for M. In the circumstances of this case, it was not necessary for the trial judge to make an express finding that the shares were held in trust for M.

APPEAL from the finding of Wilton-Siegel J. (2009), 2009 13627 (ON SC), 96 O.R. (3d) 574, [2009] O.J. No. 1278 (S.C.J.) that the deceased's husband was the beneficial owner of the shares. [page482]

Cases referred to Cherry v. Boultbee (1839), 41 E.R. 171; Fedel v. Tan (2008), 2008 46697 (ON SC), 93 O.R. (3d) 274, [2008] O.J. No. 3585, 83 C.C.E.L. (3d) 16, 50 B.L.R. (4th) 117, 169 A.C.W.S. (3d) 559 (S.C.J.); Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370, [2000] O.J. No. 470, 184 D.L.R. (4th) 281, 129 O.A.C. 286, 44 C.P.C. (4th) 42, 32 E.T.R. (2d) 308, 95 A.C.W.S. (3d) 208 (C.A.) Statutes referred to Business Corporations Act, R.S.O. 1990, c. B.16, ss. 1(1), 248(3) Trustee Act, R.S.O. 1990, c. T.23, s. 38, (2), (3)

J. Gardner Hodder, for appellants. John T. Porter and Greg Sheahan, for respondents Paragon Development Corporation and 583533 Ontario Limited. Theodor Kerzner, Q.C., for respondents/appellants by way of cross-appeal Marka Properties Inc., Veraka Properties Inc., Boran Properties Inc. and Poban Properties Inc.

The judgment of the court was delivered by

[1] WEILER J.A.: -- The issue raised by the appellants, Sonka Properties Inc. ("Sonka") and the estate of Sonia Kaiser, is straightforward.

[2] The appellants challenge the trial judge's conclusion that although the estate of Sonia Kaiser is the legal owner of the shares of Sonka, the beneficial owner of the shares is the late Sonia Kaiser's surviving husband, Morris Kaiser. The appellants argue that Sonia Kaiser (or her estate) was always both the legal and beneficial owner of the shares in Sonka. They submit that the trial judge was not entitled to come to the conclusion that Morris Kaiser was the beneficial owner of the shares. The appellants submit that in order to come to that conclusion, the trial judge would have had to find either that there was a trust in favour of Morris Kaiser or that a fraud had been committed. However, fraud was not pleaded and the trial judge made no express finding that a trust existed. Further, the appellants submit that the requirements of a trust are not met.

[3] We disagree. Section 1(1) of the Business Corporations Act, R.S.O. 1990, c. B.16 ("OBCA") defines "beneficial interest" and "beneficial ownership" as including "ownership through a trustee, legal representative, agent or other intermediary". The definition in the OBCA indicates that beneficial interest can exist outside a finding that a trust exists or that a fraud has taken place.

[4] Existing jurisprudence also supports the conclusion that a beneficial owner is one who has an equitable claim to shares whether or not they have been issued and appropriated to him. Beneficial ownership is not limited to ownership through a trustee: see Fedel v. Tan (2008), 2008 46697 (ON SC), 93 O.R. (3d) 274, [2008] O.J. No. 3585 (S.C.J.), at paras. 209 and 216.

[5] The question of whether the trial judge was entitled to come to the conclusion that Morris Kaiser was the beneficial owner of the shares must be considered against the background of the evidence relating to Morris Kaiser and Sonia Kaiser's respective involvements with Sonka. Morris Kaiser was an accountant who was the person primarily responsible for instructing counsel in [page483] connection with the corporate structure through which the shares in issue were distributed. When Morris Kaiser's father, Maier Kaiser, passed away in 1977, his interests in certain predecessor companies passed to his estate. Maier's widow enjoyed a life interest in the estate and, upon her death in 2005, the residue passed to each of their three children, Morris Kaiser being one of them. The successor by amalgamation of the predecessor companies was Paragon Development Corporation, whose shares were acquired by 583533. As of November 30, 1984, all of the shares of 583533 came to be held by various holding companies, of which Sonka was one. Morris Kaiser enjoyed the use, benefit and absolute control of Sonka's shares and he exercised that control over a lengthy period of time well past Sonia's death in 1993. By contrast, Sonia Kaiser was described as being unversed in financial affairs. There was no evidence that she was ever appointed as an officer or director, or exercised any powers as a shareholder prior to her death. The facts found by the trial judge support his conclusion that Morris Kaiser was the beneficial owner of the shares.

[6] In the circumstances, it was not necessary for the trial judge to make an express finding that the shares of Sonka were held in trust for Morris Kaiser. A bare trustee holds legal title to property on behalf of another and has no independent power, discretion or responsibility in connection with the property. That description fits the trial judge's findings respecting Sonia Kaiser. In making the findings he did, the trial judge implicitly found Sonia Kaiser to be a bare trustee who held title to Sonka's shares for Morris Kaiser.

[7] In view of our conclusion that Sonia Kaiser is a bare trustee and not entitled to any distribution, the appellant's submission that the time limit for bringing an action against the estate of Sonia Kaiser arising out of the operation of s. 38(2) and (3) of the Trustee Act, R.S.O. 1990, c. T.23 has passed and that the respondent cannot withhold a distribution to the estate of Sonia Kaiser, is irrelevant.

[8] In any event, s. 38(2) and (3) have no application to this appeal. The effect of s. 38(2) and (3) is to require that actions for wrongs committed by the deceased, for which the estate is liable, must be brought within two years of the date of the death of the deceased. Section 38 was enacted to create an exception to the draconian rule that actions that were personal to the deceased did not survive death, while at the same time imposing a limitation period to avoid creating indefinite exposure to the estate: Waschkowski v. Hopkinson Estate (2000), 2000 5646 (ON CA), 47 O.R. (3d) 370, [2000] O.J. No. 470 (C.A.), at p. 373 O.R. [page484]

[9] No wrong is alleged against Sonia Kaiser personally. This is a pure economic loss claim. No claim is made against the estate of Sonia Kaiser. The estate was simply added as a defendant, on consent, in order to allow it to make submissions as an affected party, because any order affecting Sonka's entitlement to a distribution from 583533 would indirectly affect the estate.

[10] Further, no limitation period would apply. This action was, in essence, an oppression action based on breach of fiduciary duty. The trial judge's order to withhold distribution to Sonka was based on the equitable rule in Cherry v. Boultbee (1839), 41 E.R. 171, or, alternatively, in the court's broad discretion to make an order under s. 248(3) of the Ontario Business Corporations Act, as amended.

[11] Accordingly, the appeal is dismissed with costs to the respondents fixed in the amount of $17,500, inclusive of taxes, but with disbursements payable in addition.

[12] Since the appeal has been dismissed, the cross-appeal is moot and is also dismissed with costs to the cross-appellants fixed in the amount of $4,000, inclusive of all taxes and disbursements.

[13] If necessary, further brief submissions as to the manner of payment of costs may be made in writing.

Appeal dismissed.