Court File and Parties

CITATION: Foglia v. Grid Link Corp, 2024 ONSC 588

DIVISIONAL COURT FILE NO.: DC-23-00000494ML

DATE: 20240126

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SEBASTIANO FOGLIA and JACQUELINE MASON. Applicants (Responding Party)

AND:

GRID LINK CORP., 1928025 ONTARIO LTD., AND JODY BERNST Respondents (Moving Parties)

BEFORE: Edwards, D.E., Shore, S., and Leiper JJ.

COUNSEL: Nathan Wanwright, for the Applicant (Responding Party)

Brian R. MacIvor and Eric Zablotny, for the Respondents (Moving Parties)

HEARD: In writing at Toronto on January 25, 2024

Endorsement

[1] The moving parties, Grid Link Corp et al. ("Grid Link") seek an order from the court that leave is not required for this appeal, or alternatively, if leave is required, that leave should be granted.

[2] I conclude that leave is not required for Grid Link to bring this appeal.

[3] Grid Link seeks to appeal from a decision made on February 23, 2023 arising from its motion to convert applicant Sebastiano Foglia's oppression application to an action. Grid Link was also the plaintiff in an action against Mr. Foglia arising from his former employment relationship as an executive at Grid Link. Grid Link also proposed joining the two proceedings, if permitted, given the contiguity of parties and issues.

[4] The motion judge adjourned Grid Link's request to convert the application and made an order for the purchase and sale of certain shares in a holding company which gave Mr. Foglia indirect ownership in Grid Link. The order set out a timetable to value the shares and accomplish the purchase/sale.

[5] Grid Link brought an appeal of that decision to the Court of Appeal for Ontario. The respondent on appeal brought a motion to quash that appeal.

[6] On August 22, 2023, a panel of the Court of Appeal quashed the appeal and in doing so concluded that the sole source of authority for the motion judge to order the share sale arises from the Business Corporations Act, R.S.O. 1990, c. B16: see Foglia v. Grid Link Corp. 2023 ONCA 560 at para. 1.

[7] The Court of Appeal transferred the appeal to the Divisional Court, given that s. 255 of the BCA provides that under that Act, an appeal lies only to the Divisional Court. Unlike the appeal routes pursuant to s. 19 of the Courts of Justice Act R.S.O. 1990, C.43 s. 19 which involves consideration of whether orders are final or interlocutory, that is not the case with s. 255 of the BCA which states:

Appeal

255 An appeal lies to the Divisional Court from any order made by the court under this Act.

[8] Given the plain wording of s. 255 of the BCA, leave to appeal the decision of the motion judge is not required. The order for the share sale to proceed, and the timetable for valuing the shares pursuant to that order are interrelated and flow from the authority to make such an order under the BCA. This is consistent with the decision of the Court of Appeal that this was the sole source of his authority to make the order.

[9] Costs of this motion are reserved to the panel hearing the appeal.

Leiper J.

I agree _______________________________

Edwards, D.E.

I agree _______________________________

Shore S.

Released: January 26, 2024