Court of Appeal for Ontario

Citation: D'Addario v. EnGlobe Corp., 2014 ONCA 376 Date: 2014-05-12 Docket: C55442

Before: Laskin, Rouleau and Lauwers JJ.A.

Between

Frank D’Addario, 1301965 Ontario Inc., and D’Addario Family Trust Appellants (Plaintiffs)

and

EnGlobe Corp., Tony Busseri and Roberto Sansone Respondents (Defendants)

Counsel: Peter R. Jervis, for the appellants Peter F.C. Howard and Samaneh Hosseini, for EnGlobe Corp. Alistair Crawley and Kate McGrann, for Tony Busseri

Heard and released orally: April 29, 2014

On appeal from the judgment of Justice David M. Brown of the Superior Court of Justice, dated March 30, 2012, with reasons reported at 2012 ONSC 1918.

Endorsement

[1] The appellants argue that the trial judge erred: in failing to find that the respondents acted oppressively against them as minority shareholders of EnGlobe; in his legal analysis of cause of action estoppel; in his conclusion that the oppression remedy was statute-barred; and in holding that the appellants could not proceed with a claim in conspiracy.

[2] Mr. Sansone sued the appellants. In that lawsuit, Mr. Sansone obtained an injunction preventing the appellants from dealing freely with their shares from 2005 to 2009. The appellants argue that this freezing of their shares gave rise to damages because they could neither vote nor sell their shares during this period.

[3] Central to the appellants’ argument is the allegation that the respondents promoted and supported Mr. Sansone’s lawsuit, including supplying the appellants’ share ownership and trading information to Mr. Sansone in contravention of s. 21 of the Canada Business Corporations Act, R.S.C. 1985, c. C.44 (“CBCA”). This conduct, the appellants say, is unlawful and constitutes oppression as defined in the CBCA and conspiracy at common law. We do not give effect to these submissions.

[4] The trial judge found that the respondents’ conduct, while it may have been inappropriate in certain regards, did not, taking all of the circumstances into account, meet the test for oppressive conduct. He correctly instructed himself on the law and his findings of fact made in support of his conclusion are well founded in the record. We see no basis to interfere.

[5] With respect to the conspiracy claim, the trial judge found as a fact that the respondents did not intend to cause injury to the appellants; as a result, the claim was simply not made out. Again, we see no basis to interfere.

[6] In any event, the trial judge found that the appellants did not prove that they suffered any damages as a result of the respondents’ actions. The trial judge considered the share ownership and trading information given by the respondents to Mr. Sansone, and that doing so appeared to breach s. 21 of the CBCA. He found that the breach was innocent and the information could, in any event, have been otherwise obtained.

[7] More importantly, the trial judge found that the release of the share information to Mr. Sansone did not cause any damages to the appellants. This is because the appellants consented to the injunction order freezing their dealing with the shares in the course of their litigation with Mr. Sansone.

[8] In reaching the conclusion that no damages were suffered, the trial judge rejected the appellants’ submission that, because of the respondents’ conduct, they had no choice but to consent to that injunction. The trial judge found that the injunction was the product of negotiations between counsel for the appellants and Mr. Sansone and of the informed consent of the appellants. He found that it did not therefore result from any conduct of the respondents. We agree.

[9] In light of these conclusions, we need not deal with the other issues raised by the appellants, other than their appeal of costs. The appellants argue that the respondents’ misconduct should have led the trial judge to refuse an award of costs to the respondents. The trial judge carefully considered the appellants’ submissions and determined that costs should follow the result. He awarded partial indemnity costs but he significantly reduced the award from the amount claimed by the respondents. We see no basis to interfere. Costs awards are entitled to considerable deference and the award in this case was appropriate.

[10] For these reasons the appeal is dismissed.

[11] Each of the respondents was separately represented on the appeal although only EnGlobe filed a factum. EnGlobe seeks approximately $37,000 in costs and Mr. Busseri seeks approximately $11,500. The appellants submit that, because of their conduct the respondents should be denied costs. In our view, the respondents were successful and are entitled to costs. However, we consider the amount sought by EnGlobe to be too high in the circumstances. In addition, we do not consider that any award of costs should be made to Mr. Busseri. His interests were virtually the same as those of EnGlobe and he did not file a factum. As a result, we award costs of the appeal to EnGlobe fixed at $17,500 inclusive of taxes and disbursements.

“John Laskin J.A.”

“Paul Rouleau J.A.”

“P. Lauwers J.A.”