COURT OF APPEAL FOR ONTARIO

CITATION: Winter v. Royal Trust Company, 2014 ONCA 473

DATE: 20140616

DOCKET: C57430

Laskin, Rouleau and Epstein JJ.A.

BETWEEN

Kerry J.D. Winter, Jeffrey A. Barkin, Paul T. Barkin and Julia Winter, personal representative of Dana C. Winter, deceased

Plaintiffs (Appellants)

and

The Royal Trust Company and Royal Trust Corporation of Canada

Defendants (Respondents)

Gregory M. Sidlofsky, for the appellant Jeffrey Barkin

Justin R. Fogarty and Pavle Masic, for the appellants Kerry J.D. Winter, Paul T. Barkin and Julia Winter

Laura K. Fric and Gillian S.G. Scott, for the respondents

Heard: June 6, 2014

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated June 26, 2013.

ENDORSEMENT

[1] The appellants argue three grounds of appeal:

(1) the motion judge erred in his interpretation of the option agreement;

(2) the motion judge erred in holding that Royal Trust could not be liable for breach of fiduciary duty or negligence on the grounds that; and

(a) Royal Trust failed to draft or negotiate a better option agreement, and

(b) by its delay in producing the documents pertaining to the option agreement, Royal Trust prevented the appellants from proving their claims.

(3) it was neither fair nor just to decide this case without a trial.

[2] We did not call on the respondents. We do not agree with any of the three grounds of appeal advanced by the appellants. The motion judge gave thorough reasons for granting summary judgment dismissing the appellants’ claims. We agree with his reasons and his disposition of the motion.

[3] On the first ground of appeal, the appellants contend that the definition of “purchased business” is broad enough to encompass Apotex. We do not accept that contention. As the motion judge found, the definition of “purchased business” in the asset sale agreement – a definition that is incorporated into the option agreement – is unambiguous. It does not apply to Apotex, a company Sherman started two years after he sold all of Empire’s business to ICN. The motion judge correctly found that after that sale to ICN, the option agreement, by its terms, was null and void.

[4] On the second ground of appeal, the appellants accept that Royal Trust acted prudently in the sale of the assets of the estate, and indeed sold the assets to the highest bidder, who was Sherman. They submit, however, that Royal Trust was negligent or in breach of its fiduciary duties in not obtaining better option terms for the children. That submission is at odds with the evidence that the motion judge accepted, as he was entitled to do, that Sherman would not agree to different terms. The key findings of the motion judge, at paras. 123-24 of his reasons, are supported by the evidence and not tainted by palpable and overriding error.

[5] Further, nothing in the record before us supports the suggestion that the appellants were prejudiced by the delay in producing the documents pertaining to the option agreement. The evidence before the motion judge established that Royal Trust acted prudently in the sale of the assets to Sherman. The option agreement entered into as part of the sale is unambiguous and the conditions for its performance had lapsed upon the sale to ICN in 1972. There is simply no evidence to support the submission that Royal Trust’s delay in producing the documents somehow prevented the appellants from pursuing their claims or that the delay otherwise prejudiced them.

[6] On the third ground of appeal, this was an entirely appropriate case for summary judgment. As the Supreme Court of Canada said in Hryniak v. Mauldin, 2014 SCC 7, at para. 60, even “if some of the claims against some of the parties will proceed to trial”, in appropriate circumstances “the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.” That is the case with the claims at issue here.

[7] We agree with Royal Trust that the resolution of the royalty claims, which the motion judge left for trial, will not lead to inconsistent results. The resolution of those claims does not depend on the definition of “purchased business” or on the interpretation of the option agreement.

[8] The appeal is dismissed with costs fixed in the amount of $20,000 inclusive of disbursements and applicable taxes.

“John Laskin J.A.”

“Paul Rouleau J.A.”

“Gloria Epstein J.A.”