COURT OF APPEAL FOR ONTARIO

DATE: 20230627 DOCKET: C70774

Hoy, Brown and Coroza JJ.A.

BETWEEN

Maureen Ferraro, Lawrence Hishon, Peter Shannon, Tanja Tudhope and Michael Grove Plaintiffs (Respondents)

and

Jim Neilas, Chad Martin, Neilas Inc., 1249 Queen E. Inc., Neilas (1249 Queen E) Inc., Neilas (799 College St.) Inc., 799 College Street Inc., Hi-Rise Capital Ltd., Jane Doe and/or John Doe Defendants (Appellants)

Counsel: Anu Koshal and Holly Kallmeyer, for the appellants Julian Binavince, for the respondents

Heard: January 26, 2023, with written supplementary submissions filed on May 30, 2023.

SUPPLEMENTARY REASONS

Brown J.A.:

[1] By reasons dated May 1, 2023, this appeal was dismissed, Hoy J.A. dissenting. Further to our directions in paras. 76-77, we have received supplementary submissions from the parties on the calculation of the losses by the investors that should form the amounts awarded to them in the Judgment.

[2] We accept the submissions of the appellants that interest should be calculated on a simple, annual basis. That methodology is consistent with the language of the “Fixed Interest Rate” clause in the Loan Participation Agreements that states: “HRC agrees to pay the Participant a fixed rate of [10 or 12%] per annum as and when received from the Borrower.”

[3] Accordingly, the amounts set out in paras. 1, 3, 5, and 7 of the Judgment are varied to the amounts set out in Appendix “A” to the appellants’ Supplementary Factum, namely: Maureen Ferraro and Lawrence Hishon: $147,201.36; Peter Shannon: $121,316.45; Tanja Tudhope: $42,572.19; and Michael Grove: $209,268.38.

[4] Para. 78 of the reasons states: “I would also vary the Judgment’s rate of pre‑judgment and post-judgment interest to that specified in each respondents’ respective LPA.” Paras. 2, 4, 6, and 8 of the Judgment are varied accordingly, using a simple annual rate of interest.

“David Brown J.A.”

“I agree. S. Coroza J.A.”

Hoy J.A.:

[5] I would have allowed the appeal on the basis that the provision of a guarantee was not a term of the trust agreements. Accordingly, it was unnecessary for me to consider what rate of interest applied and how it should be calculated and I make no determination of that issue in response to the supplementary submissions directed to my colleagues.

Released: June 27, 2023 “Alexandra Hoy J.A.”