Court of Appeal for Ontario

Date: 2025-04-01
Docket: COA-24-CV-0705

Coram: L.B. Roberts, Gary Trotter, J. George

Between

Shiu Yiu Kong
Applicant (Appellant)

and

Raymond Au, 1802606 Ontario Inc., and Taknology (Canada) Inc.
Respondents (Respondents)

Appearances:
Brandon Barnes Trickett and Thomas Nichini, for the appellant
Natalie Lim, for the respondents

Heard and released orally: March 31, 2025

On appeal from the order of Justice P. Tamara Sugunasiri of the Superior Court of Justice, dated August 2, 2022.

Reasons for Decision

[1] The appellant appeals the dismissal of his application for an oppression remedy under the OBCA and CBCA.

[2] The appellant’s oral submissions were focused on the argument that the application judge erred in characterizing the appellant’s criticism of the companies’ books and records as a sideshow. He argues that the application judge erred in failing to address the deficiencies in the companies’ books and records, and in particular, in their financial statements, as set out in the affidavit of Ernest Ng. The appellant says that Mr. Ng’s evidence characterizes these documents as “incomprehensible” to carry out an evaluation of Mr. Kong’s shares for the purpose of sale. According to the appellant, this is oppressive conduct that warrants a remedy.

[3] We are not persuaded by these submissions.

[4] We see no error in the application judge’s consideration of the governing statutory provisions and legal principles, nor with her factual findings that are owed considerable appellate deference. It was open to her to prefer the evidence of the respondents and to reject the appellant’s evidence, particularly where it consisted of hearsay evidence not tendered by a qualified expert. Mr. Ng’s evidence about the alleged deficiencies is opinion evidence which is presumptively inadmissible because he was not qualified as an expert. The appellant’s deficiency argument required an expert opinion and none was proffered.

[5] We agree with the application judge’s characterization that the real dispute here is that the appellant wishes to sell his shares at a price that the respondents are under no obligation to purchase. As the application judge observed, the mere fact that the appellant does not like the respondents’ buyout figure or method of calculation does not amount to oppressive conduct or warrant the court’s intervention.

[6] Given the application judge’s determination that there was no oppressive conduct by the respondents, we also agree with her conclusion that the oppression remedy is not the appropriate vehicle to resolve the share purchase dispute between the parties and that the relief sought by the appellant is not available to him under the oppression provisions of the OBCA and CBCA.

[7] The appeal is dismissed. The parties have agreed that the respondents are entitled to their costs before the Divisional Court and this court from the appellant in the all-inclusive amount of $75,000.

“L.B. Roberts J.A.”
“Gary Trotter J.A.”
“J. George J.A.”