COURT OF APPEAL FOR ONTARIO

CITATION: Hawley v. Pennington, 2012 ONCA 595

DATE: 20120911

DOCKET: C55314

Cronk, Epstein and Hoy JJ.A.

BETWEEN

James B. Hawley and The Aged Gingko Trust

Plaintiffs (Appellants)

and

John K. Pennington and

The John K. Pennington Family Trust No. 1

Defendants (Respondents)

Ronald S. Sleightholm, for the appellants

Craig R. Colraine, for the respondents

Heard and released orally: September 5, 2012

On appeal from the judgment of Justice C. William Hourigan of the Superior Court of Justice, dated March 12, 2012.

ENDORSEMENT

[1] The appellants appeal from the judgment of Hourigan J. of the Superior Court of Justice dated March 12, 2012, granting summary judgment in favour of the respondents concerning the appellants’ oppression claim regarding the respondents’ alleged conduct in relation to and management of Kananaskis Alpine Resort Inc. (“KARI”).

[2] The background facts are detailed in the motion judge’s reasons and need not be repeated here.

[3] The motion judge held that this was an appropriate case for summary judgment as the record afforded him the requisite full appreciation of the evidence and issues required to make dispositive findings by way of summary judgment, without the necessity of a trial, in accordance with this court’s recent decision in Combined Air Mechanical Services v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1. In our view, the record fully supports this conclusion.

[4] As the motion judge held, the appellants’ essential complaint in this case is that the respondent Pennington declined to appoint the appellant Hawley as a co-director of KARI when Hawley sought to exercise his option to re-acquire his former shareholdings in KARI. After reviewing the statutory provisions applicable to KARI, an Alberta corporation, and the evidence pertaining to the parties’ dealings concerning their option agreements, the motion judge concluded that Hawley was not entitled to the requested directorship by reason of statutory, contract or tort law.

[5] We see no error in this conclusion. Indeed, we understood the appellants’ counsel to candidly acknowledge as much during his submissions before this court. The record reveals no basis for Hawley’s complaint that he was wrongly denied a directorship in KARI. Accordingly, Pennington’s refusal to appoint Hawley as a director of KARI cannot support the oppression claim sought to be advanced in this action.

[6] In his factum, Hawley further submits that his exclusion from a directorship of KARI while his guarantee of KARI’s indebtedness was sought by KARI’s primary lender/mortgagee and Pennington’s negotiations with that mortgagee, allegedly to the appellants’ detriment, ground an oppression claim.

[7] We disagree. Hawley ultimately did not provide the requested guarantee. As the motion judge held, the appellants advance only bald allegations of oppressive conduct by the respondents. Hawley was not legally entitled to insist on his appointment as a director of KARI. Absent that entitlement and any wrongful denial of the appointment, nothing in the respondents’ dealings with KARI’s lender/mortgagee, to the extent identified by the appellants, anchors an oppression claim.

[8] We therefore agree with the motion judge that the oppression claim advanced by the appellants is devoid of merit. The appeal is dismissed with costs to the respondents in the amount of $8,500, inclusive of disbursements and all applicable taxes.

“E.A. Cronk J.A.”

“G.J. Epstein J.A.”

“Alexandra Hoy J.A.”