CITATION: Maple Equipment & Leasing Inc. v. DS&D Personnel Inc., 2022 ONSC 2097
DIVISIONAL COURT FILE NO.: 081/22 DATE: 20220404
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and McCarthy JJ.
BETWEEN:
MAPLE EQUIPMENT & LEASING INC., GIUSEPPE (JOE) NUOSCI and CARMELA NUOSCI
Applicants (Appellants)
– and –
DS&D PERSONNEL INC., DOMENIC NUOSCI and SILVANA NUOSCI
Respondents (Respondents in Appeal)
Counsel:
Neil G. Wilson and Sara Romeih, for the Applicants (Appellants)
Gavin H. Finlayson and Kaleigh Sonshine, for the Respondents (Respondents in Appeal)
HEARD at Toronto (by videoconference): April 4, 2022
Swinton, J. (Orally)
[1] There is no merit to this appeal. The parties appeared before Hood J. to determine three issues respecting the terms of a shotgun buy/sell agreement that the parties had agreed to on December 7, 2021 when settling their oppression claims in two actions.
[2] The appellants argue that the application judge erred in his order dated February 2, 2022 when he rejected a proposed term that the corporation, Maple Ready Mix, be required to indemnify Carmela Nuosci for her personal tax liability that might arise as a result of an audit by the Canada Revenue Agency related to the funds she had drawn down from Maple Ready Mix.
[3] The application judge found the evidence of Joe Nuosci, Carmela’s husband, not to be sufficient to support the existence of a tax agreement to indemnify Carmela personally, and accordingly he refused to incorporate such a term into the buy/sell agreement. The appellants have failed to demonstrate any error of law or any palpable and overriding error of fact by the application judge. In the absence of any writing or conduct that suggests the agreement on indemnification as alleged, the application judge found that it was not enough that Joe simply asserted its existence. In such circumstances, Hood J. was unprepared to embark on an analysis of what counsel for the appellants referred to as Domenic’s overall credibility. This was both appropriate and reasonable.
[4] We agree with the comment of the application judge that the relief sought was not logical within the context of the brothers’ business arrangement, nor does it appear to be commercially reasonable. We also agree with his conclusion that a tax indemnity to Carmela in her personal capacity would not achieve fairness for the parties. In the absence of the agreement alleged, but not recognized, there is no reason for the court to extend to Carmela protection for whatever tax liability she may face in her personal capacity.
[5] We also reject the appellants’ argument that the reasons are not sufficient to permit meaningful appellate review.
[6] Accordingly, the appeal is dismissed.
[7] Costs to the respondents are fixed at $20,000 all inclusive.
Swinton J.
I agree
Lederer J.
I agree
McCarthy J.
Date of Oral Reasons for Judgment: April 4, 2022
Date of Written Release: April 6, 2022
CITATION: Maple Equipment & Leasing Inc. v. DS&D Personnel Inc., 2022 ONSC 2097
DIVISIONAL COURT FILE NO.: 081/22 DATE: 20220404
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Lederer and McCarthy JJ.
BETWEEN:
MAPLE EQUIPMENT & LEASING INC., GIUSEPPE (JOE) NUOSCI and CARMELA NUOSCI
Applicants (Appellants)
– and –
DS&D PERSONNEL INC., DOMENIC NUOSCI and SILVANA NUOSCI
Respondents (Respondents in Appeal)
ORAL REASONS FOR JUDGMENT
Swinton J.
Date of Oral Reasons for Judgment: April 4, 2022
Date of Written Release: April 6, 2022