Schembri et al. v. Way et al. [Indexed as: Schembri v. Way]
112 O.R. (3d) 241
2012 ONCA 620
Court of Appeal for Ontario,
Feldman, Hoy JJ.A. and Spence J. (ad hoc)
September 20, 2012
Civil procedure -- Parties -- Adding parties -- Plaintiffs moving to add party -- Motion judge finding that proposed pleadings adequately disclosed and pled asserted causes of action but dismissing motion on basis that plaintiffs did not produce evidence to support allegations -- Plaintiffs' appeal allowed -- Motion judge required to take facts pleaded on motion to add party as true and provable and to assess tenability of claim on that basis.
Corporations -- Directors -- Plaintiffs bringing oppression action against corporation -- Plaintiffs subsequently seeking to add director and officer who was alleged to have participated in impugned conduct -- Motion judge finding that causes of action for conspiracy to injure and inducing breach of contract were sufficiently pleaded against director but dismissing motion on basis that allegations against her were claims against corporations of which she was directing mind -- Plaintiffs' appeal allowed -- Corporate actors can be separately liable if they have engaged in tortious conduct even if they engaged in that conduct in course of their duties.
Corporations -- Oppression -- Plaintiff in oppression action holding 45 per cent of shares in company and defendant holding 55 per cent -- Plaintiffs bringing motion to change relief sought in statement of claim from 50/50 interest in company to reversal of shareholdings -- Motion judge erring in dismissing motion -- Court having authority to grant remedy sought if facts that were alleged to constitute oppression were proved.
The plaintiff Schembrico and the defendant Wayco entered into a joint venture agreement for a real estate redevelopment project in Waterloo. They were to share the profits equally. The principal individuals involved in the joint venture were the plaintiff S and the defendant W. S, W, two of their companies and Triumph had also entered into a shareholders' agreement relating to the development of other projects. S's company held 45 per cent of the shares of Triumph, while W's company held 55 per cent. When Schembrico received much less than it had anticipated from the sale of the Waterloo property, the plaintiffs brought an oppression action alleging that Wayco improperly used Schembrico's profit from the Waterloo project to finance and redevelop the other properties. After commencing the action, the plaintiffs learned that part of the profits from the joint venture had been directed to other Way corporations (collectively, the "Wayco beneficiaries"). They brought a motion for an order adding a number of parties that they alleged improperly received moneys from the joint venture, including the Wayco beneficiaries, the Way family trust and P, a director, officer and employee of a number of Way companies who was alleged to have participated with Way in shuffling joint venture money around to Way's corporations. They also sought to add a claim for a redistribution of the shares of Triumph as part of the oppression remedy. The motion judge granted the request to add the Wayco beneficiaries, but refused to add the Way family trust, P or the new ground of relief. The plaintiffs appealed. [page242]
Held, the appeal should be allowed.
Having found that the claims against P for conspiracy to injure and inducing breach of contract were adequately pleaded, the motion judge erred in holding that the proposed amendments did not disclose a reasonable cause of action against P in her personal capacity as the allegations were mere claims against the corporations of which P was a directing mind. Corporate actors can be separately liable if they have engaged in tortious conduct, even in the course of their duty. There was a clear pleading of fraudulent conduct against P, which brought the case squarely within the type of conduct where a claim against a directing mind is not barred.
The motion judge erred in refusing to add the Way family trust on the basis that there was no evidence that the trust had received any of the diverted funds. Where a party wishes to amend a claim or add a new party within the limitation period, the facts pleaded are taken to be true and provable (subject to unprovable assumptive or speculative conclusions) and the court is to assess the tenability of the claim on that basis. Once the motion judge determined that the proposed pleadings adequately disclosed and pled the asserted causes of action, the fact that the plaintiffs did not produce evidence to support the allegations was not a reason to refuse the amendment.
The motion judge erred in refusing to allow the plaintiffs to change the relief sought in the statement of claim from a claim for a 50/50 interest in Triumph to a reversal of the shareholdings so that Schembrico would hold 55 per cent and Wayco 45 per cent. Section 248(3)(d) of the Business Corporations Act, R.S.O. 1990, c. B.16 ("OBCA") lists as a potential remedy "an order directing an issue or exchange of securities". The facts pleaded that were alleged to constitute the oppression, if proved, would give the court the authority to order the appropriate oppression remedy provided under the OBCA. It would be for the trial judge to determine what was appropriate based on the evidence and the submissions at that time.
APPEAL from the order of Turnbull J., [2011] O.J. No. 3070, 2011 ONSC 8021 (S.C.J.) and [2011] O.J. No. 4002, 2011 ONSC 4098 (S.C.J.) [page243] dismissing a motion to add parties and amend the statement of claim.
Cases referred to
Andersen Consulting Ltd. v. Canada (Attorney General), 2001 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177, 13 C.P.C. (5th) 251, 107 A.C.W.S. (3d) 759 (C.A.), apld
Other cases referred to
ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 1527 (ON CA), 43 O.R. (3d) 101, [1999] O.J. No. 27, 168 D.L.R. (4th) 351, 117 O.A.C. 39, 41 B.L.R. (2d) 157, 39 C.C.E.L. (2d) 163, 44 C.C.L.T. (2d) 174, 85 A.C.W.S. (3d) 320 (C.A.); Hilltop Group Ltd. v. Katana, [2001] O.J. No. 1564, 104 A.C.W.S. (3d) 845 (S.C.J.); Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97, [1998] O.J. No. 391, 155 D.L.R. (4th) 627, 113 O.A.C. 375, 41 C.C.L.T. (2d) 282, 17 C.P.C. (4th) 170, 77 A.C.W.S. (3d) 518 (C.A.); Schembri v. Way, [2010] O.J. No. 4873, 2010 ONSC 5176, 76 B.L.R. (4th) 147 (S.C.J.); ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481, [1995] O.J. No. 3556, 129 D.L.R. (4th) 711, 87 O.A.C. 129, 23 B.L.R. (2d) 165, 9 C.C.L.S. 97, 59 A.C.W.S. (3d) 213 (C.A.)
Statutes referred to
Business Corporations Act, R.S.O. 1990, c. B.16, s. 248(3), (d)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.03(4), 5.04(2), 26, 26.01
James M. Wortzman, for appellants. P.A. Neena Gupta, for respondents. Gary L. Petker, for Faye Patterson. Ian M. Hull, for trustees of the Way family trust.
The judgment of the court was delivered by
[1] FELDMAN J.A.: -- This appeal arises from a pleadings motion. The motion judge allowed a number of amendments to the statement of claim but refused to add two parties -- the Way Family Trust and Faye Patterson -- or to add a new remedy for the oppression claim. The plaintiffs appeal those refusals.
Facts
[2] 1784652 Ontario Inc. ("Schembrico") and 1725030 Ontario Inc. ("Wayco") entered into a joint venture agreement for the demolition and redevelopment of a property at 345 King St. N. in Waterloo, Ontario in April 2007. They were to share the profits equally.
[3] The plaintiffs allege that the defendants improperly boosted the costs of the project by retaining a number of related companies to do work at inflated prices, thereby reducing the amount of the shared profit. It is also alleged that the defendants diverted Schembrico's portion of the profits into other related entities. All of these actions, say the plaintiffs, fraudulently deprived Schembrico of its profits under the joint venture agreement.
[4] The anticipated profit from the sale of the redeveloped property was $10 million, from which Schembrico anticipated receiving $5 million. When it received only approximately $1.4 million, Schembrico demanded an accounting but did not receive it.
[5] Al Way, Kingsley Financial Inc. (of which Mr. Way is an officer and director), Triumph Financial Holdings Inc. ("Triumph"), Gordon Schembri and Schembri Financial Ltd. (of which Mr. Schembri is an officer and director) entered into a shareholder agreement in April 2008 regarding the manner in which the affairs of Triumph were to be conducted.
[6] Schembri Financial holds 45 per cent of the shares of Triumph, while Kinglsey Financial owns 55 per cent. Triumph, in turn, owns 100 per cent of the shares of companies (the "Triumph [page244] subsidiaries") that own lands, in London, Oshawa and Waterloo (the "shareholder lands").
[7] The plaintiffs allege that Wayco improperly used Schembrico's profits from the joint venture to finance the redevelopment of the shareholder lands.
[8] After commencing the action, the plaintiffs brought a motion before Roberts J. for the appointment of a receiver and manager of the Triumph subsidiaries that were developing the shareholder lands and for the delivery of documentation regarding the joint venture. Affidavits and cross-examinations on the affidavits produced a significant amount of evidence for use on that motion.
[9] From both the cross-examinations, as well as from other disclosures in the context of the motion, the plaintiffs learned that $6 million of the profits from the joint venture had been paid to a Way corporation, Premier Project Consultants Ltd. ("PPC").
[10] It was also revealed that $855,000 of the $6 million had been directed to other Way corporations: 158170 Ontario Ltd., 1604909 Ontario Inc., The Shores Ltd., Jameshill Developments Ltd., The Spruce Street Lofts Inc. and Maple Hill Creek Apartments Inc. (the "Wayco beneficiaries").
[11] Roberts J. appointed a receiver and manager of the Triumph subsidiaries and ordered the production of all financial documents relating to the joint venture. She did so after reviewing an extensive evidentiary record and on the basis of the defendants' acknowledgement that the plaintiffs had presented a strong prima facie case against Mr. Way and the Way companies "of serious financial and accounting irregularities and improprieties". She noted that the defendants had not disputed the evidence presented by the plaintiffs: 2010 ONSC 5176, [2010] O.J. No. 4873, 76 B.L.R. (4th) 147 (S.C.J.), at para. 6.
[12] Based on this undisputed evidence, Roberts J. made a number of significant findings of wrongdoing by Mr. Way and the companies he controlled. For instance, she found that Mr. Way had shuffled money around to his corporations, that he had not complied fully with court-ordered production and he was willing to manipulate figures and to ignore his accountant's advice.
[13] Following the motion, the plaintiffs sought to add a number of parties that they allege improperly received moneys from the joint venture, including the Wayco beneficiaries, a trust controlled by Mr. Way (the "Way Family Trust" or "Trust"), as well as Ms. Patterson who, as a director, officer and employee of a number of Way companies, is alleged to have participated with [page245] Mr. Way in shuffling the joint venture money. The plaintiffs also sought to add a claim for a redistribution of the shares of Triumph as part of the oppression remedy.
[14] The motion judge granted the request to add the Wayco beneficiaries, but refused to add the Way Family Trust, Ms. Patterson or the new ground of relief under the oppression remedy as set in para. 2(k) of the proposed amended statement of claim.
Issues
[15] Did the motion judge err in law by refusing to add the Way Family Trust or Ms. Patterson as parties or by refusing to allow the statement of claim to be amended by adding a claim for the readjustment of the shares of Triumph as an oppression remedy?
Analysis
(1) The proposed claim against Faye Patterson
[16] In the proposed amendments that add the claims against Ms. Patterson, there are no new paragraphs where specific new allegations are made against her. Instead, her name is added to existing paragraphs where she is alleged to have participated in certain of the activities of Mr. Way and some of his companies either as an employee or as a director and officer. She is the president and a director of PPC and the vice- president of Jamesway.
[17] The specific causes of action identified by the motion judge that were proposed to be added against her are conspiracy, inducing breach of contract and breach of fiduciary duty based on the following broad allegations: (1) having joint control with Mr. Way of funds that belonged to the joint venture and participating in the diversion of those funds to other Way entities and in the fraudulent inflation of the costs of the joint venture; (2) together with Mr. Way, improperly using Schembrico's share of the profits from the joint venture on other projects involving the shareholder lands; and (3) conspiracy to injure the plaintiffs by depriving them of money that they are due and owing by, for example, diverting Schembrico's profits to PPC for baseless expenses.
[18] The motion judge found that the proposed amendments did not disclose a reasonable cause of action against Ms. Patterson in her personal capacity. He viewed the allegations as mere claims against the corporations of which Ms. Patterson was a directing mind, as in ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481, [1995] O.J. No. 3556 (C.A.), where Finlayson J.A. stated, at p. 491 O.R.:
Considering that a corporation is an inanimate piece of legal machinery incapable of thought or action, the court can only determine its legal liability by assessing the conduct of those who caused the company to act in the way that it did. This does not mean, however, that if the actions of the directing minds are found wanting, that personal liability will flow through the corporation to those who caused it to act as it did. To hold the directors of Peoples personally liable, there must be some activity on their part that takes them out of the role of directing minds of the corporation. In this case, there are no such allegations.
[19] The motion judge also found that the claims against Ms. Patterson were bald allegations with no factual basis and that the proposed pleading did not specify why she was being sued as an individual separately from the corporations. He concluded by saying that, if evidence is disclosed in the examinations for discovery and production of documents that would found the claims he had denied, then the plaintiffs could renew their motion to add Ms. Patterson.
[20] The motion judge then assessed the viability of each of the three causes of action proposed against her. Dealing first with the claim against Ms. Patterson for conspiracy to injure, the motion judge found that all of the components of that cause of action were properly pleaded against her in para. 98 of the proposed amended statement of claim. In that paragraph, it is asserted that some of the defendants, including Ms. Patterson, acted in concert to deprive the plaintiffs of their profits. The motion judge concluded that "[i]f such is proven, it naturally follows that if the conduct is found to be unlawful, and such deprivation is proved, the defendants would have known that injury to the plaintiffs would be the natural result".
[21] Nevertheless, although the conspiracy claim was sufficiently pleaded and particularized, the motion judge would not allow that claim to be added against Ms. Patterson because of the ruling he had already made that there was an insufficient factual basis to ground any of the claims against her in her personal capacity.
[22] The second claim was for breach of fiduciary duty. The motion judge found that the proposed amended claim did not plead facts that would give rise to a fiduciary duty between Ms. Patterson, as an employee of Mr. Way or as a director and officer of PPC and Jamesway, and the plaintiffs.
[23] The third claim was for inducing breach of contract, the contract being the joint venture. After setting out the elements of the tort, the motion judge concluded that the pleading was adequate to sustain the claim against Ms. Patterson for inducing [page247] breach of contract, and that "[w]hile it lacked some particulars, it was sufficient to allow her to plead to it if that had been necessary". However, because he had found that there was an insufficient factual basis to allow Ms. Patterson to be sued in her personal capacity for any cause of action, the motion to add the claim against her for inducing breach of contract was also dismissed.
[24] While the motion judge and plaintiffs do not specify which subrule they are relying on, in my view, rule 5.03(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is the most applicable in the circumstances, together with rule 26.01:
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. . . . . .
5.03(4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.
[25] The motion judge directed himself in his introduction to the reasons that "[i]n accordance with the ruling of the Ontario Court of Appeal . . . amendments to add parties should be presumptively approved, unless there is abuse of the court process or non-compensable prejudice".
[26] There is neither an allegation of prejudice nor a limitation period issue here, and the action is at an early stage. The plaintiffs could commence a new action against the proposed defendants and then seek to join it with the existing action. The procedure of adding parties to the existing action circumvents the costly and time-consuming process involved in that procedure.
[27] Because this is a motion to amend pleadings, the allegations in the pleading are taken to be true and provable. The only issue, therefore, is whether the allegations, as pleaded, plead all of the necessary components of an identifiable cause of action.
[28] In my view, having found that the causes of action for conspiracy to injure and inducing breach of contract were sufficiently pleaded against Ms. Patterson, the motion judge erred by not allowing her to be joined as a defendant in respect of those two causes of action.
[29] The motion judge referred to the following statement by Finlayson J.A. in ScotiaMcLeod, affirmed by this court in Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 2447 (ON CA), 37 O.R. (3d) 97, [1998] O.J. No. 391 (C.A.), at p. 102 O.R.: [page248]
It is well established that the directing minds of corporations cannot be held civilly liable for the actions of the corporations they control and direct unless there is some conduct on the part of those directing minds that is either tortious in itself or exhibits a separate identity or interest from that of the corporations such as to make the acts or conduct complained of those of the directing minds. (Emphasis added)
[30] The fact that corporate actors can be separately liable if they have engaged in tortious conduct, even in the course of their duty, was also confirmed by this court in ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 1527 (ON CA), 43 O.R. (3d) 101, [1999] O.J. No. 27 (C.A.), at p. 112-13 O.R.
[31] At para. 98, the motion judge made the following statement:
In the case at bar, the factual foundation for the tort of conspiracy, the claim for breach of fiduciary duty and inducing breach of contract, as pleaded, is identical to that which underlies the allegations for breach of the [joint venture agreement] and the Shareholders Agreements. The damages alleged in all cases are the same. The allegations made against Ms. Patterson are bald allegations with no factual basis to found a claim against her in law.
[32] With respect to the motion judge, in this passage he has not acknowledged that in this case there is a clear pleading of fraudulent conduct by Ms. Patterson, which is detailed to the same extent as the claims against other defendants. This brings the case squarely within the type of conduct where a claim against the directing mind is not barred.
[33] The motion judge also erred in suggesting that there must be evidence to sustain such a claim. It may be that because there was such an abundance of evidence already developed in the record in this matter, the motion judge expected sworn or documentary evidence to support the proposed new pleadings. However, that is not a requirement on a motion to add a party (subject to other considerations, such as prejudice or abuse of process). As Moldaver J.A. stated in Andersen Consulting Ltd. v. Canada (Attorney General), 2001 8587 (ON CA), [2001] O.J. No. 3576, 150 O.A.C. 177 (C.A.), at para. 34: "[T]he law is clear that unless the facts alleged are based on assumptive or speculative conclusions that are incapable of proof, they must be accepted as proven and the court should not look beyond the pleadings to determine whether the action can proceed."
[34] I would therefore allow the appeal with respect to the addition of Ms. Patterson as a defendant on the two issues of conspiracy to injure and inducing breach of contract. The plaintiffs are not pursuing the claim for breach of fiduciary duty. [page249]
(2) The proposed claim against the Way Family Trust
[35] The plaintiffs sought to add the Way Family Trust as a defendant that they allege knowingly received from Mr. Way and Way entities money that ought to have gone to the plaintiffs. The proposed amendments add the Trust into various existing paragraphs of the statement of claim as one of a list of parties that either received the plaintiffs' funds or participated in the plan to divert those funds. However, there are no particulars of any of these allegations.
[36] The motion judge rejected a number of alleged defects with the pleading and would have been ready to approve the addition of the Way Family Trust had there been any evidence to support the allegations against it.
[37] He rejected the submission that the pleading lacked particularity. He found that it was sufficient for a claim for fraud and breach of trust to allege knowing receipt of moneys that the Trust knew or should have known were impressed with a trust for the plaintiffs.
[38] He accepted the plaintiffs' explanation that the reason the Trust was not named as an original party to the action was that they only discovered the payments out of some of the joint venture profit proceeds to Way companies after the litigation was commenced.
[39] He also rejected the submission made by counsel for the trustees that the plaintiffs only sought to add the Way Family Trust for strategic reasons, including to obtain discovery from it and to apply pressure on the other defendants to settle. He reasoned that Mr. Way is one of the trustees and would be examined in his personal capacity in any event.
[40] Notwithstanding that he rejected those arguments, the motion judge refused the amendment because, unlike the Wayco beneficiaries that were added, there was no evidence in the record already developed and no evidence referred to by Roberts J. that the Way Family Trust had received any of the diverted funds. Also of significance for the motion judge was the fact that the plaintiffs had commissioned a report from KPMG but had not produced that report and had not suggested, based on that report, that the accountants had found that the Way Family Trust had received any of the disputed funds.
[41] The motion judge relied on the decision of C. Campbell J. in Hilltop Group Ltd. v. Katana, [2001] O.J. No. 1564, 104 A.C.W.S. (3d) 845 (S.C.J.) for the proposition that it is appropriate when considering a motion to add parties for the court to consider evidence advanced in support of the claim in order to [page250] assess its tenability. However, the facts in that case make it inapplicable to this situation. In Hilltop, the plaintiffs by counterclaim sought to name a new defendant by counterclaim two weeks before the trial. The basis of the claim was that they had only recently learned that the proposed new defendant was a 50 per cent shareholder in one of the companies operated by her husband, who was also a defendant, and that she may have played a role in his impugned activities.
[42] The rule being relied on was rule 5.04(2), which allows a party to be added or deleted at any stage subject to non- compensable prejudice. The focus of the judge's analysis in that case was the lateness of the request, the effect on the upcoming trial and the issue of prejudice, and in that context, the tenability of the proposed new claim. For that purpose, because the proposed pleading was so bald, the court looked at the transcripts that were available to see if there was any suggestion of the involvement of the proposed new party and there was not. The court therefore found, among other things, that the pleading did not disclose a tenable claim. However, that was true without looking for evidence. Nonetheless, the judge was willing to apply any evidence he could find to support the claim and fill in the pleading if there was any basis for doing so, but there was none.
[43] In my view, Moldaver J.A.'s statement in Andersen, quoted above, is again applicable. Where a party wishes to amend a claim or add a new party within the limitation period, the facts pleaded are taken to be true and provable (subject to unprovable assumptive or speculative conclusions) and the court is to assess the tenability of the claim on that basis.
[44] The trial judge also found that to join the Way Family Trust would unduly complicate the action and cause significant prejudice to the Trust in having to produce documents and incur accounting and legal expenses. However, this is not the type of prejudice envisioned by the rule. Unfortunately, everyone involved in litigation must endure the time and expense involved in its procedures. In any event, the plaintiffs were not seeking to add a party late in the litigation but at a fairly early stage before examinations and production.
[45] Once the motion judge determined that the proposed pleadings adequately disclosed and pled the asserted causes of action, the fact that the plaintiffs did not produce evidence to support the allegations was not a reason to refuse the amendment. [page251]
(3) The claim for reapportionment of the share percentage holdings in Triumph
[46] The plaintiffs sought to amend para. 2(k) of the statement of claim from claiming a 50/50 interest in Triumph to reversing the shareholdings so that Schembrico would hold 55 per cent and Wayco 45 per cent. The motion judge held that there was no factual basis for this claim as pleaded. At the request of the defendants, the entire paragraph was struck from the pleading with leave to amend.
[47] The plaintiffs rely on s. 248(3) of Ontario's Business Corporations Act, R.S.O. 1990, c. B.16 ("OBCA"), which sets out the available remedies for oppression. Section 248(3)(d) includes as a potential remedy "an order directing an issue or exchange of securities". The defendants submit that the case law only allows this type of remedy to be ordered where the circumstances call for it and that there is no suggestion that a readjustment of the share split in the joint venture corporation was ever contemplated as a remedy for any breach.
[48] They say that, at a minimum, the plaintiffs would have to plead that Schembri Financial had a reasonable expectation that it might secure a majority position in the event of a dispute with Kingsley Financial, that a reapportionment of shares would address the oppression and that there is no less intrusive way to achieve redress.
[49] In my view, the pleaded amendment should be allowed under Rule 26. The facts pleaded that are alleged to constitute the oppression, if proved, will give the court the authority to order the appropriate oppression remedy provided under the OBCA. It will be for the trial judge to determine what is appropriate based on the evidence and the submissions at the time. There is no merit in attempting to fetter the discretion of the trial judge at the pleading stage, subject to any particular circumstances not present in this case.
Additional Issue: Costs
[50] In their supplementary notice of appeal, the plaintiffs objected to part of the costs order made by the trial judge "in the cause". There was no reference to this ground of appeal in their factum. Some mention was made of the issue in oral argument. I would not grant leave to appeal on this issue, which is a matter of discretion for the motion judge.
Result
[51] I would allow the appeal, set aside the order of the motion judge and allow the motions to amend the pleading as follows: [page252] (1) by adding Ms. Patterson in respect of the claims for conspiracy and inducing breach of contract; (2) by adding the Way Family Trust as pleaded; and (3) by allowing the proposed amendment to para. 2(k) of the statement of claim.
[52] Following the hearing, the counsel advised that they had come to an agreement regarding the costs of the appeal and below. As the plaintiffs have been successful, they will have the costs of the appeal fixed at $21,395.42 for fees, $4,728.83 for disbursements, plus HST, for which the defendants will be jointly and severally liable. They shall have the costs of the motion from the Way Family Trust in the amount of $12,000 for fees, $382.32 for disbursements, plus HST, and from Ms. Patterson in the amount of $14,000 for fees, $382.32 for disbursements, plus HST.
Appeal allowed.