Court of Appeal for Ontario

Date: 2017-05-19 Docket: C60751

Judges: LaForme, van Rensburg and Huscroft JJ.A.

Parties

Between

Sami Osman El Jundi Plaintiff (Respondent)

and

Bassam Ouaida, MNP Ltd. Trustee of the bankrupt Andrew G. Loucks, James Corbett, Dunnville Forest Products Inc. and 447248 Ontario Limited Defendants (Appellants)

AND BETWEEN

Bassam Ouaida and 447248 Ontario Limited Plaintiffs by counterclaim (Appellants)

and

Sami Osman El Jundi and Lina Muskawi Defendants by counterclaim (Respondents)

Counsel

Gabriella Varsha Deokaran, for the appellants

Thomas Arndt, for the respondents

Hearing and Appeal

Heard: May 15, 2017

On appeal from the orders of Justice David L. Corbett of the Superior Court of Justice, dated April 27 and 30, 2015, with reasons reported at 2015 ONSC 2529.

Appeal Book Endorsement

[1] The trial judge's finding of fraudulent misrepresentation was not challenged on appeal. The appellant says this finding justified a remedy of rescission only for the parties' first shareholders' agreement. We disagree. When the trial judge's reasons for judgment are read as a whole, the fraudulent misrepresentation finding justified rescission of all three agreements. In any event, even assuming that rescission because of the fraudulent misrepresentation was available only for the first agreement, the trial judge's conclusion that the second and third shareholder agreements were unconscionable also justified a remedy of rescission. There was ample evidence for him to find unconscionability on this record.

[2] The trial judge's interpretation of shareholder agreements two and three as including an implied term to provide objective evidence of the value of the appellant's land was reasonable and is entitled to deference from this court. The appellant has failed to demonstrate any reason to interfere with the trial judge's interpretation of the parties' contracts in all the circumstances.

[3] Finally, there was no procedural unfairness here. Both the refusal of an adjournment of the trial beyond five days, and the decision not to admit documentary evidence that was not disclosed in accordance with the trial judge's explicit instructions, were within the trial judge's discretion, which was exercised in a manifestly fair manner.

[4] For these reasons the appeal is dismissed. Costs to the respondents fixed at $25,000, inclusive of HST and disbursements.