COURT FILE NO.: 601/03
DATE: 20031120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.
B E T W E E N:
879501 ONTARIO INC., 897698 ONTARIO INC. and PAUL FRASER
Applicants (Respondents)
- and -
861073 ONTARIO LTD. o/a WAYNES WORLD POLARIS and ROBERT WAYNE THOMAS
Respondents (Appellants)
Michael Simaan, for the Applicants (Respondents)
Peter M. Callahan, for the Respondents (Appellants)
HEARD: November 20, 2003
cunningham J.: (Orally)
[1] This is an appeal from the judgment of Farley J. dated January 3, 2003, in which he granted certain oppression remedies to the respondents.
[2] The grounds of appeal are essentially based on the appellant’s submissions that there was no factual basis for the finding of oppression and that in any event the remedies were, in certain respects, uncalled for.
[3] Farley J.’s conclusions are subject to reversal on appeal only if he applied the wrong legal standard or based his conclusions on irrelevant factors or on factors to which he attached inappropriate weight. See Chapters Inc. v. Davies Ward & Beck LLP (2001), 52 O.R. (3d) 566.
[4] Farley J. found oppression in three areas that are clearly set out in his reasons. He found that the appellants refused to provide audited financial statements despite the respondent’s repeated requests, called shareholder’s meetings on short notice and when they knew the respondents were unavailable and withheld certain monies relating to the purchase of snowmobiles as part of a negotiating tactic for the purposes of this dispute.
[5] On the evidence before Farley J., it was open to him to make the findings of oppression that he did and we therefore find no basis for interfering with his decision to exercise his discretion to provide certain relief to remedy this oppression. There is however one aspect of the relief granted that we consider represents an error in principle. The learned applications judge, in attempting to respond to the problem associated with the respondent Paul Fraser’s purchase of certain snowmobiles ordered the appellants jointly and severally to pay the respondents $19,675, being the amount the respondents advanced in payment of snowmobiles, that were never delivered.
[6] The difficulty with this term of the judgment is that the respondents did not seek any relief against the appellant, Robert Thomas personally in relation to the purchase of the snowmobiles. We are therefore of the view that paragraph 5 of the judgment should be varied to provide for the numbered company only to make the payment. This term of the judgment is therefore struck as against Robert Thomas.
[7] The appellants submit that Farley J. erred in awarding 12% interest on this amount owing. While the rate is high, s.30 of the Courts of Justice Act gives the Judge discretion to allow interest at a higher rate or lower rate than that provided in ss.128 or 129. We would not interfere with his exercise of discretion in this regard.
[8] The appellants have sought leave to appeal the cost order. Leave is granted to appeal that award. We are all of the view that the costs were completely within the discretion of Farley J. and while the award is sizeable, it is not so out of line as to justify our interference.
[9] The appeal is therefore allowed in part in accordance with these reasons, otherwise it is dismissed.
[10] The appeal book will read as follows: “The appeal is allowed in part as stated in oral reasons given today. Costs to the respondent fixed at $1,500, all inclusive.”
CUNNINGHAM A.C. J.
MCRAE J.
EPSTEIN J.
Date of Reasons for Judgment: November 20, 2003
Date of Release: November 24, 2003
COURT FILE NO.: 601/03
DATE: 20031120
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.
B E T W E E N:
879501 ONTARIO INC., 897698 ONTARIO INC. and PAUL FRASER
Applicants (Respondents)
- and -
861073 ONTARIO LTD. o/a WAYNES WORLD POLARIS and ROBERT WAYNE THOMAS
Respondents (Appellants)
ORAL REASONS FOR JUDGMENT
CUNNINGHAM A.C. J.
Date of Reasons for Judgment: November 20, 2003
Date of Release: November 24, 2003