Court of Appeal for Ontario

Date: 2017-04-27 Docket: C61008 Judges: Feldman, Sharpe and Roberts JJ.A.

Between

Sandra Elsley Plaintiff (Appellant)

and

Mildred Orescanin, Trustee for IP Trust and Shirley Bordynuik Trustee for Corp 1683091 and Shirley Bordynuik, Trustee for John Bordynuik Inc. and John Popovacki and Brian Seburn and Frank Coy A and John Bordynuik and John Doe and others Defendants (Respondents)

Counsel

Frederick Hawa, for the appellant

Mark Abradjian and Renata Kis, for the respondent

Heard and Released

Heard and released orally: March 30, 2017

On appeal from the judgment of Justice Theresa Maddalena of the Superior Court of Justice, dated August 11, 2015.

Endorsement

[1] The essential issue on this appeal is whether the motion judge erred in her conclusion that the appellant is not the sole or majority shareholder of John Bordynuik Inc. of Delaware (the Delaware Company) and therefore is not entitled to bring claims on behalf of, nor as an assignee of the Delaware Company against the respondents.

[2] In our view, the record before the motion judge supports her conclusions that the respondent John Bordynuik was not obliged to, and did not give up his shares in the Delaware Company when he purchased his majority interest in JBI Inc. of Nevada (the Nevada Company). The email of June 24, 2009 from John Bordynuik to the Delaware shareholders as well as the Delaware Company share ledger from June 30, 2009, are two pieces of documentary evidence that the motion judge was entitled to accept, together with the affidavit evidence of John Bordynuik. The appellant relies on an acknowledgment in another document – the Settlement Agreement, apparently signed on June 25, 2009, for an acknowledgment by John Bordynuik that she says supports her interpretation of his obligations. However, the motion judge did not accept this interpretation which was inconsistent with the email and the other evidence.

[3] We accept the motion judge's interpretation. We therefore see no basis to set aside the findings or the decisions of the motion judge to grant summary judgment dismissing the appellant's claims and making the declarations as set out in her order under appeal dated August 11, 2015. Costs to the respondents are fixed at the agreed amount of $25,000 inclusive of disbursements and applicable taxes.

K. Feldman J.A.

Robert J. Sharpe J.A.

L.B. Roberts J.A.