CITATION: Ramsden v. Home Coverings Buying Group Inc. et al, 2012 ONSC 5854
DIVISIONAL COURT FILE NO.: DC-11-51
DATE: 20121015
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
TALIANO, McCARTNEY and GORDON JJ.
BETWEEN:
PETER RAMSDEN
R. Campbell, for the Plaintiff/Respondent on Appeal
Plaintiff/Respondent on Appeal
- and -
HOME COVERINGS BUYING GROUP INC. and JOHN DAVIDSON
Defendants/Appellants on Appeal
R. Chapman, for the Defendants/Appellants on Appeal
-A N D B E T W E E N -
HOME COVERINGS BUYING GROUP INC. and JOHN DAVIDSON
Plaintiffs by counterclaim (Appellants on Appeal)
-and-
PETER RAMSDEN
Defendant by counterclaim (Respondent on Appeal)
HEARD: October 15, 2012 (Brampton)
BY THE COURT
ENDORSEMENT
[1] This appeal arises from an Order of Hourigan J., by which he found the Appellants jointly and severally liable to the Respondent and ordered the Appellant John Davidson to pay the Respondent the sum of $22,253.23. The Order arose from the Respondent’s motion to seek compliance with the Judgment of Gray J., dated October 27, 2008.
[2] The Judgment of Gray J. was a consent Judgment based on Minutes of Settlement which had been filed. Paragraph 7 of the Judgment provides that if any payment is made to John Davidson, a payment equal to thirty percent of such amount shall be paid to Peter Ramsden.
[3] The facts before Hourigan J. established that Mr. Davidson had been paid $74,177.44. Accordingly, he ordered that 30% of that amount was due to Mr. Ramsden.
[4] The Standard of Review on an appeal from a judge’s decision is set out in Housen v. Nikolaisen 2002 SCC 33. Briefly stated, on questions of law the standard is correctness. On findings of fact, it is palpable and overriding error.
[5] The Appellant has appealed on the bases that Hourigan J. failed to consider the factual matrix surrounding the Minutes of Settlement when interpreting section 7, and failed to properly apply section 30 of the OBCA.
[6] The grounds pertaining to the OBCA cannot succeed. The prohibition contained in section 30 is of the payment for shares by a company when there are reasonable grounds to believe the company is insolvent. The section does not prohibit the company from acquiring shares in such circumstances, just from paying for them. Hourigan J. was sensitive to this issue and required payment only by Davidson. Accordingly, although the result of the order may be the acquisition of its own shares, it is without payment by the corporate defendant and there is no contravention of section 30.
[7] With respect to consideration of the factual matrix underlying the Minutes of Settlement, we are of the view that a provision of a consent judgment which is clear on its face is to be interpreted in accordance with its plain meaning. If a provision is so ambiguous that its meaning cannot be determined without reference to extraneous facts, it may then be appropriate to refer to the factual matrix which formed the basis for the minutes of settlement to properly discern the intentions of the parties. In the event a term of a consent judgment is clear on its face but does not reflect what one of the parties believed to have been the actual agreement of the parties, the proper route would be to move to have the judgment amended or set aside. The result is that this ground of appeal must also fail.
[8] In the circumstances, the appeal is dismissed. We understand that costs are agreed upon at $8,000 and shall be payable by the Appellant.
Taliano J.
McCartney J.
Gordon J.
Released: October 15, 2012
CITATION: Ramsden v. Home Coverings Buying Group Inc. et al, 2012 ONSC 5854
DIVISIONAL COURT FILE NO.: DC-11-51
DATE: 20121015
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
TALIANO, McCARTNEY and GORDON JJ.
BETWEEN:
PETER RAMSDEN
Plaintiff/Respondent on Appeal
- and –
HOME COVERINGS BUYING GROUP INC. and JOHN DAVIDSON
Defendants/Appellants on Appeal
- A N D B E T W E E N –
HOME COVERINGS BUYING GROUP INC. and JOHN DAVIDSON
Plaintiffs by counterclaim
(Appellants on Appeal)
- and –
PETER RAMSDEN
Defendant by counterclaim
(Respondent on Appeal)
ENDORSEMENT
By the Court
Released: October 15, 2012