ONTARIO

SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

COURT FILE NO.: CV-12-9610-00CL
DATE: 20120305

B E T W E E N:

MOHAN ROOPCHAND, MEJJ ENTERPRISES INC and MONDAY’S CHOICE MANAGEMENT CORPORATION
Plaintiffs and Defendants by Counterclaim

• and -

KIM CHAU and CENTURY 21 LEADING EDGE REALTY INC.
Defendants and Plaintiffs by Counterclaim

Plaintiffs and Defendants by Counterclaim, Self-represented
Chad Kopach, for the Defendants and Plaintiffs by Counterclaim

HEARD: February 29 and March 1, 2012

Newbould J.

Reasons for Judgment

[ 1 ] This case involves a real estate transaction regarding a commercial property in Scarborough on Kingston Road that was acquired by the plaintiff MEJJ Enterprises Inc. ("MEJJ") and held on title by MEJJ and Monday's Choice Management Corporation ("Monday's") for the purpose of operating a golf driving range and related activities. The defendant Kim Chau claims under an agreement to have a 20% interest in the two corporations MEJJ and Monday's. The only issue is whether the signature of Mr. Roopchand that appears on the agreement is a forgery. [1]

[ 2 ] Mr. Chau has been a real estate broker for 26 years dealing with commercial and investment properties. He and Mr. Roopchand met, depending upon which witness tells it, in 2005 or 2007.

[ 3 ] Mr. Chau learned of the Kingston Road property through Mr. Peers Jensen, whom he had known all his life. Mr. Jensen and his father, through a numbered company, had entered into a share purchase agreement of March 27, 2007 to acquire the property for $3.5 million with a five year vendor take-back mortgage. That deal fell through because Mr. Jensen could not raise the money in time. Mr. Jensen and his father had planned to operate a golf center on it with someone else coming in as a part owner.

[ 4 ] Mr. Jensen asked Mr. Chau to find investors to acquire the property with him. Mr. Chau approached Mr. Roopchand who was interested in investing in the property. He eventually acquired it through MEJJ and Monday's, which are the registered owners of the property, MEJJ holding a one-third interest and Monday's holding a two-thirds interest. MEJJ entered into a lease with Mr. Jensen and his father through their numbered company for them to operate the golf business on the property.

[ 5 ] Mr. Roopchand's evidence was that he agreed with Mr. Jensen and his father that they would be tenants for five years and he said that he gave them an option to purchase 25% provided they ran it successfully for five years. Mr. Jensen's evidence is that he and his father hoped to acquire a 50% interest in the land as sweat equity but that Mr. Roopchand told him that there were three people in his group who each wanted a 25% interest and so Mr. Jensen agreed to take a 25% interest. He said that a shareholders’ agreement was drafted to provide them with the opportunity to acquire a 25% interest but that the agreement never was signed. He testified that Mr. Roopchand wanted the lease signed quickly as his group was uneasy with the deal without a lease in place, and so the lease was signed on the promise that the other documentation would take a little time but would be put in place. That never occurred.

[ 6 ] It is not necessary to decide what evidence on this issue is to be preferred but I would note that no document was ever produced by Mr. Roopchand containing an agreement with Mr. Jensen providing Mr. Jensen and his father with any right to acquire any ownership interest in the property. I would also note that the lease signed by the Jensens to operate the property is for a term of 10 years.

[ 7 ] The agreement which is the subject of this lawsuit is entitled SHAREHOLDERS PRELIMINARY AGREEMENT ("shareholders’ agreement"). It relates to a company to be incorporated and provides that Mr. Roopchand shall own 80 % of the shares and equity in the company at the completion of the purchase of the property and that Mr. Chau shall own 20%. Mr. Chu testified that he signed the agreement on October 30, 2007 and that Mr. Roopchand signed it on October 31, 2007.

[ 8 ] On November 1, 2007 Mr. Roopchand signed an agreement of purchase and sale for the property on behalf of his numbered company 854559 Ontario Limited in trust for a company to be incorporated. The vendor was Fairwood Driving Range Inc. which had an undivided one-third interest in the property and Monday's which had an undivided two-thirds interest. Fairwood transferred its interest in the property to MEJJ. Monday's retained its ownership interest, but became a wholly-owned subsidiary of MEJJ on the closing. Thus MEJJ has a 100% ownership interest in the property, two thirds of which is through Monday's.

[ 9 ] Mr. Chau was successful in reducing by $300,000 the purchase price that had been agreed to be paid by Mr. Jensen to $3.2 million and to obtain a vendor take-back mortgage with better terms, including 0% financing for 10 years and the right to make two interim balloon payments. He said that the original deal that the Jensens had made to purchase the property made no economic sense and that it had to be renegotiated in order to attract a purchaser. The deal he negotiated contained sufficient terms, including lease terms, which he said meant that the operations of the golf business during the 10 years of the lease would be sufficient to carry all costs so that at the end of the lease, the buyer would have a debt-free property.

[ 10 ] Mr. Chau's evidence is that Mr. Roopchand wanted him to be a part of the transaction. Mr. Chau told him that he did not have the cash. He said that normally he made commissions as a broker and so told Mr. Roopchand that foregoing his commission would be a way that he could participate. He said Mr. Roopchand agreed to this. His explanation for the 20% interest he was to acquire was slow in coming in his evidence, although I formed the opinion that he was not purposely being evasive but rather did not quite understand what he was being asked. He said that at the time the 20% interest was discussed, they did not know what the purchase price would be but based on the prior deal of the Jensens figured that a 5% commission on a sale price of $3.5 million would be $175,000. He knew from Mr. Fulton, the vendor to Mr. Jensen on the deal that did not close, that the down payment that would have to be made would be in the order of $850,000 to $900,000. $175,000, his foregone commission, equated to 20% of $875,000. In other words, he took the percentage that his anticipated foregone commission bore to the anticipated cash that Mr. Roopchand would have to put into the deal. He said he discussed this with Mr. Roopchand who agreed to it and he told Mr. Roopchand that he would reduce the purchase price down by at least the amount of his foregone commission, which he more than did by negotiating it down to $3.2 million from $3.5 million.

[ 11 ] Mr. Chau testified that he prepared the shareholders’ agreement and his wife typed it up. He said he met with Mr. Roopchand at a Tim Horton's restaurants to review the agreement and that he went over the agreement with Mr. Roopchand. He said he had four copies and that he signed all four and dated them. He said that Mr. Roopchand told him that he wanted to take it home and review it and so Mr. Roopchand took two copies with him. He said the Mr. Roopchand called him the next morning and arranged to meet him that day at the Richtree restaurant at Bayview and York Mills. He said they met at the restaurant and went over the agreement again and shook hands on it. He said that Mr. Roopchand signed all the copies and dated them and then took two with him. Mr. Chau said that he kept two copies himself.

[ 12 ] Mr. Chau testified that he only has one original copy. He said the Mr. Roopchand later called him up and said he had lost his copies and asked him for one of Mr. Chau's copies, which Mr. Chau gave him.

[ 13 ] Mr. Roopchand is the plaintiff, having sued for a declaration that Mr. Chau has no interest in the property. In chief, he testified that he first received a copy of the shareholders’ agreement by fax in June 2008 received from his lawyer Robert Durno, which he said was a surprise. He testified that while the signature looked like his, he did not recall signing the document.

[ 14 ] Following Mr. Chau's evidence as a defendant regarding his negotiations with Mr. Roopchand leading to the 20% interest and the meetings at the restaurants where the agreements were signed, Mr. Roopchand did not give any reply evidence denying Mr. Chau's evidence. Mr. Chau had testified that during the first meeting at Tim Horton's, he understood that Mrs. Roopchand waited outside in the car. I permitted Mr. Roopchand to call his wife as a reply witness, even though I was told that her evidence was intended to corroborate things said by Mr. Roopchand in chief. Mrs. Roopchand said that she and her husband had always done their real estate deals as joint partners and that she always read documents, even if she did not sign them, to know what the terms were. She said she never saw any shareholders’ agreement until sometime in July 2008 when they received a copy from a lawyer named Robert Durno.

[ 15 ] Dr. Atul Singla is a well-qualified expert in handwriting analysis. He compared 14 known contemporaneous signatures of Mr. Roopchand with the signature on the shareholders’ agreement and concluded that the signature on the shareholders’ agreement was that of Mr. Roopchand.

[ 16 ] No expert witness was called by Mr. Roopchand, although it is clear that two of his prior lawyers retained an expert witness for that purpose. On May 28, 2010, Sandra Couto, then acting for Mr. Roopchand, wrote to Mr. Larry Franshman, then acting for Mr. Chau, and stated that a handwriting analysis was currently being carried out. Mr. Kopach was not involved in the action at that time and therefore was unable to say that Ms. Couto had arranged for the original copy of the shareholders’ agreement to be reviewed by the expert that she had retained. The agreement was listed in the affidavit of documents that Mr. Chau had delivered and one would have expected Ms. Couto to have arranged for that to be done. In any event no expert report was delivered by Ms. Couto on behalf of Mr. Roopchand.

[ 17 ] On April 6, 2011, at a case conference attended by Mr. Muyal on behalf of Mr. Roopchand and by Mr. Franshman on behalf of Mr. Chau, Hoy J. ordered that Mr. Roopchand's handwriting expert’s report was to be delivered within 30 days. That did not occur. On September 23, 2011, Morawetz J. ordered the parties to deliver any expert reports they intended to rely on by the end of October 2011. Following the case conference with Campbell J. on December 9, 2011, Mr. Muyal retained Mr. Graham Ospreay, a handwriting expert who attended at Mr. Kopach's office on December 12, 2011 to examine the original shareholders’ agreement. No expert report of Mr. Ospreay has been delivered and no explanation for that has been provided. In the circumstances I think it fair to conclude that any opinion of Mr. Ospreay would not have been helpful to Mr. Roopchand's case.

[ 18 ] For the reasons that follow, I find that the signature of Mr. Roopchand on the shareholders’ agreement is his genuine signature.

[ 19 ] I accept the report of Dr. Singla. His work and report were thorough. He is clearly a knowledgeable person in his field and without cogent reason, one cannot dismiss his report.

[ 20 ] I found Mr. Chau to be an honest witness. He sometimes did not answer questions directly but I did not put that down to an attempt to prevaricate but rather his not quite appreciating what was being asked of him. His evidence as to how he arrived at the 20% figure and his discussions with Mr. Roopchand about that was not contradicted by Mr. Roopchand. While Mr. Roopchand was self represented [2] , he is an obvious intelligent man and could not have failed to appreciate the purport of Mr. Chau's evidence. He was advised at the outset of the trial of his right to call evidence in chief and in reply, and after the defence case had been called, was again advised of his right to call reply evidence to deal with anything that had come up during the defendants’ evidence. Yet he chose not to give any reply evidence denying Mr. Chau’s evidence. I accept Mr. Chau's evidence of his discussions with Mr. Roopchand.

[ 21 ] Mr. Jensen was subpoenaed by Mr. Muyal while he was acting for Mr. Roopchand. He was called as a witness by Mr. Roopchand. His evidence did not assist Mr. Roopchand. Mr. Jensen testified as to the 25% interest that he and his father was to obtain in the property that he had negotiated with Mr. Roopchand, which ultimately never happened. He said, however, that during the negotiations he and his father wanted to give Mr. Chau a percentage of the interest that they expected to obtain in the property. He testified that Mr. Chau told him that he did not want any percentage interest from Mr. Jensen, as he was a partner with Mr. Roopchand, and that they wanted Mr. Jensen and his father to make as much money as possible in running the business under their lease. Mr. Jensen was a straightforward reliable witness and I accept his evidence. The fact that Mr. Chau told him that he was a partner with Mr. Roopchand is consistent with Mr. Chau’s evidence that he and Mr. Roopchand agreed that he would obtain a 20% interest in the property.

[ 22 ] I did not find Mr. Roopchand to be a credible or reliable witness. On cross-examination he at first denied that sometimes he bought property with a partner. Denying that he bought property with a partner was consistent with his claim not to have signed an agreement in which he took in Mr. Chau as a 20% partner. However, this evidence directly contradicted his prior examination for discovery in which he had said that on some deals he bought by himself and on some he went in with a partner.

[ 23 ] Mr. Roopchand also at first denied on his cross-examination that he knew that Mr. Chau wanted to be a partner with him. However this contradicted his examination for discovery in which he said that at one point Mr. Chau said he would like to be a partner.

[ 24 ] In his amended reply and defence to counterclaim, it was pleaded on behalf of Mr. Roopchand that he denied being a personal friend of Mr. Chau and that the transaction in issue was the first transaction between them. This clearly was not the case. On cross-examination Mr. Roopchand admitted that he and Mr. Chau had twice together gone to the Bahamas and that he had attended the wedding of Mr. Chau’s son. He also acknowledged on cross-examination that he had signed three listing agreements with Mr. Chau for other properties dated September 1, 2006, December 7, 2006 and August 13, 2007, all prior to the transaction in issue.

[ 25 ] The listing agreements Mr. Roopchand signed with Mr. Chau for other properties provided for a commission of 4.5% or 5%. The agreement of purchase and sale of the property in question that was signed by Mr. Roopchand provided that no broker’s fee or finder's fee was to be paid. This is consistent with Mr. Chau being compensated by other means for the work that he did in negotiating on behalf of Mr. Roopchand and obtaining a much better deal than the Jensens had negotiated for their purchase, which fell through. It is consistent with Mr. Chau's evidence that his 20% interest in the land that he negotiated with Mr. Roopchand was based upon a 5% commission that he was forgoing.

[ 26 ] In argument at the end of the case, Mr. Roopchand asserted that the reason for his buying the property was that he hoped to flip it rather than keep it for the longer-term and that the deal he made with Mr. Chau was that Mr. Chau would obtain a 20% interest in the property only if he succeeded in finding a buyer for Mr. Roopchand on a flip. Mr. Roopchand did not given any such evidence, nor was that pleaded on his behalf.

[ 27 ] On a line of cross-examination to establish that Mr. Chau had obtained value for Mr. Roopchand, Mr. Roopchand at first said he was not sure that Mr. Chau had arranged a net lease that would cover the carrying costs of the land, but this was contrary to his examination for discovery in which he agreed that he got a net lease covering the carrying costs of the property. When it was put to him that he purchased the property on the strength of the lease, Mr. Roopchand denied it and said that he had purchased the property on the strength of being able to flip it. This too was contradicted by his examination for discovery in which he had said that he purchased the property on the strength of the lease. He admitted on his cross-examination that he never told his lawyer, Joe Fried, who was acting for him on the purchase, about any intent to flip the property.

[ 28 ] I accept Mr. Chau’s evidence that he told Mr. Roopchand that their exit strategy was that at the end of the ten-year lease the property would be owned debt-free because of its operation by the Jensens under the ten-year lease. I do not accept Mr. Roopchand’s assertion that the agreement with Mr. Chan was that Mr. Chan would obtain a 20% interest only if he succeeded in finding a buyer for a flip of the property.

[ 29 ] A registered real estate broker is required to sign a registrant’s statement as a buyer if he or she is acquiring an interest in the property that is being sold. On November 1, 2007 Mr. Chau signed such a statement in which he said that he was a minor shareholder in the company that was proposing an offer for the property, that he was not representing either the seller or the buyer as a registered real estate broker and that there were no real estate brokerage or commission fees payable in the offer. This was entirely consistent with his evidence that he had negotiated a 20% interest in the company that would ultimately purchase the property.

[ 30 ] Mr. Paul Baron, the broker of record at Century 21 Leading Edge Realty Inc. where Mr. Chan works testified that Mr. Chau had talked to him about the potential of a share purchase and asked if it could be done. Mr. Baron advised him that it was within the policies of the brokerage so long as disclosure was made. He said that the registrant’s statement was later filed in the office and that at the time it had been signed by Mr. Chau but not yet signed by the vendors. This is consistent with the evidence that the registrant’s statement was later signed by the vendors on the closing of the transaction. Mr. Baron was a straightforward witness whose evidence I accept.

[ 31 ] Mr. Chau sent a package of documents to Joel Fried, Mr. Roopchand's solicitor, in late November or early December, 2007 which contained his signed registrants’ statement. The package was apparently not opened in Mr. Fried's office until February 27, 2008. At the closing of the purchase on March 13, 2008, attended by Mr. Fried, the registrant’s statement was signed by the vendors. It would have been entirely inconsistent with his having forged Mr. Roopchand’s signature on the shareholders’ agreement for Mr. Chau to have sent to Mr. Fried his registrant’s statement disclosing his interest as a minority shareholder.

[ 32 ] The shareholders’ agreement was listed on the documents to be sent to Mr. Fried but a line was written through it and it was not sent with the other documents. Mr. Chau's explanation for not sending it at that time was that he was going to put his 20% interest in a family trust and was advised that a new family trust had to be set up, which was going to take some time. He thought it was not urgent to have that done before the closing of the land purchase and for that reason did not send a copy of the shareholders’ agreement to Mr. Fried prior to the closing of the purchase. I accept Mr. Chau's evidence on this point.

[ 33 ] Mrs. Roopchand’s evidence is that she first saw the shareholders’ agreement when it was faxed to her husband by Mr. Durno, a lawyer who did work for Mr. Roopchand. This was consistent with Mr. Roopchand’s evidence as to when he first saw the agreement. One problem with this evidence is that in spite of an order following his examination for discovery that the fax copy be produced, Mr. Roopchand has never produced the document. Mrs. Roopchand said she was not aware that the document had not been produced.

[ 34 ] Even if Mr. Roopchand did not show the shareholders’ agreement to his wife, that does not mean that he did not have it. Mr. Chau said he understood that Mrs. Roopchand was waiting in the car while he met with Mr. Roopchand in the Tim Horton’s restaurant, which he said lasted around 45 minutes. Whether she was in fact there in the car is questionable. When Mrs. Roopchand testified, she made no mention of the incident to say or deny that she had waited in their car while her husband met with Mr. Chau. I do not view her evidence, even if truthful, as persuasive that the shareholders’ agreement was not signed by her husband.

[ 35 ] In all of the circumstances, I find that the shareholders' agreement was signed by Mr. Roopchand and that it is a valid and binding agreement.

Relief

[ 36 ] During argument, Mr. Roopchand said that his wife and daughter were the shareholders of MEJJ. This was not pleaded by Mr. Roopchand and he gave no evidence that his wife and daughter were the shareholders of MEJJ. He did testify that he incorporated MEJJ as the company to take title to the property. Mrs. Roopchand in her evidence said nothing about the ownership of MEJJ. Mr. Roopchand's daughter sat throughout the trial and assisted her father. She gave no evidence at all.

[ 37 ] On his examination for discovery, Mr. Roopchand was asked to produce the minute book for MEJJ. On May 28, 2010 Ms. Couto informed Mr. Franshman, then acting for Mr. Chau, that it was Mr. Roopchand's position that he did not have a minute book for MEJJ. One would have thought that a minute book would have been prepared by the solicitor incorporating MEJJ and that it would have existed.

[ 38 ] On December 8, 2011 Mr. Muyal and Mr. Kopach had a discussion to narrow the issues for trial in advance of the pretrial conference scheduled to be held on the following day before Campbell J. Mr. Kopach confirmed by letter that day that the remaining issue for trial was whether Mr. Roopchand signed the shareholders’ agreement. The following day Campbell J. made an endorsement in which he stated that counsel have agreed on the formulation of the issue as per the letter of December 8, 2011. No issue was raised by Mr. Muyal regarding the ownership of MEJJ.

[ 39 ] Having failed to produce any minute book for MEJJ and having agreed that the sole issue for the trial was whether he had signed the shareholders’ agreement, and having failed to provide any evidence on the issue, Mr. Roopchand is in no position to assert that his wife and daughter are the shareholders. The assertion was made in argument, evidently, to suggest that no kind of relief should be made against MEJJ.

[ 40 ] In my view relief can and must be made against MEJJ. However, in light of the deceptive behavior of Mr. Roopchand, care must be taken to ensure that any relief granted to Mr. Chau is effective and enforceable.

[ 41 ] Mr. Chau has claimed declaratory relief at common law as well as under section 248 of the OBCA which gives a court broad remedial power. In my view, the actions of Mr. Roopchand in denying the validity of the shareholders’ agreement and in failing to provide any financial information of the operations of the business being carried out on the property have been oppressive and have unfairly disregarded the interests of Mr. Chau as a shareholder. Mr. Chau is entitled to relief under section 248 of the OBCA.

[ 42 ] Moreover, it is unrealistic to expect that Mr. Roopchand will faithfully honour his obligations to Mr. Chau in the operation of MEJJ during the continuance of the operation of the business by the Jensens under the 10 year lease or until the property is otherwise sold. Included in the relief claimed by Mr. Chau is an order requiring his interest in the corporations to be purchased at fair market value, and in my view that is appropriate relief. It is also appropriate in the circumstances for an accounting to be taken of the operation of the business since its acquisition and for any amounts that might properly be owing to Mr. Chau to be paid to him.

[ 43 ] It is also important that Mr. Chau's interest in the property be maintained during the interim period before the purchase of his interest in it is completed. For that purpose a declaration is required that he has a 20% interest in the property and that such interest be registered on title. That will prevent any dealing with the property in the interim.

[ 44 ] In the circumstances, the following relief is granted:

(i) It is declared that the shareholders’ agreement, being tab 13 of Exhibit 1, is valid and binding upon the plaintiffs and defendants by counterclaim and that Mr. Chau is the owner of 20% of the shares of MEJJ Enterprises Inc. and Monday’s Choice Management Corporation.

(ii) It is declared that Mr. Chau is the owner of a 20% interest in the property through MEJJ Enterprises Inc. and Monday’s Choice Management Corporation and that his interest is to be registered on title.

(iii) It is ordered that the plaintiffs and defendants by counterclaim are to forthwith cause to be issued and delivered to Mr. Chau share certificates in each of MEJJ Enterprises Inc. and Monday's Choice Management Corporation representing 20% of the outstanding shares of each corporation and that full and proper documentation be provided from which it may be ascertained that the shares so issued represent such 20%.

(iv) It is ordered that Mr. Chau and his financial and legal advisors are to forthwith be given full access to the books and records of MEJJ Enterprises Inc. and Monday's Choice Management Corporation and that the plaintiffs and defendants by counterclaim agree to and will forthwith arrange for Mr. Chau and his financial and legal advisors to meet with the accountants for these corporations. They are also to be forthwith given full access to the banking records for these corporations from March 13, 2008.

(v) It is ordered that an accounting of the operation of the business on the property from March 13, 2008 is to take place before a Master of this court and any amounts properly payable to Mr. Chau as result of that accounting are to be paid forthwith after the accounting to Mr. Chau by Mr. Roopchand and any other responsible party owing the money.

(vi) It is ordered that the plaintiffs and defendants by counterclaim purchase Mr. Chau's interest in MEJJ Enterprises Inc. and Monday's Choice Management Corporation at fair market value, to be determined as follows:

(i) Once full financial and legal information has been provided to Mr. Chau, the parties and their financial and legal advisors if so desired are to meet on a without prejudice basis and attempt to agree on the amount to be paid to Mr. Chau and the terms of payment. If within two weeks the parties are unable to agree, the following procedure to determine the amount to be paid to Mr. Chau shall be used.

(ii) Mr. Chau and Mr. Roopchand are to attempt to agree within one week on an independent valuator qualified to express an opinion on the assets in question and to retain such valuator. If no such agreement is reached, they are each to retain an independent valuator with such qualifications within one further week.

(iii) If there is one valuator chosen by agreement, the costs of the valuation, subject to further order, are to be paid by Mr. Chau and Mr. Roopchand equally. They shall each forthwith pay one-half of whatever deposit, if any, is required by the valuator and thereafter shall each forthwith pay one-half of all accounts of the valuator as rendered.

(iv) If there are two valuators chosen, Mr. Chau and Mr. Roopchand shall, subject to further order, each pay the costs of the valuator chosen by them. Each shall forthwith pay whatever deposit, if any, is required by the valuator and forthwith pay all accounts of the valuator as rendered.

(v) All of the parties shall fully cooperate with the valuator(s) and respond on a timely basis to all requests by the valuator(s) for financial statements, documents and information considered relevant by the valuator(s) and shall, if requested by the valuator(s), meet with the valuator(s) or cause other employees to meet with the valuator(s) and answer any questions they may have. The valuator(s) shall also be entitled to meet with the Jensens if requested, and if this cannot be done by agreement of the Jensens, which I doubt would be the case, an appropriate motion to the Court may be made.

(vi) The parties shall also provide their consent for the valuator(s) to discuss matters with the companies’ accountants if requested by the valuator(s), and if any fees are to be paid to such accountants, they shall, subject to further order, be paid equally by Mr. Chau and Mr. Roopchand if there is one valuator or by each of them for fees incurred for the valuator chosen by them.

(vii) The valuation is to be the fair market value of MEJJ Enterprises Inc. and Monday's Choice Management Corporation as the date of the valuation, and the valuator(s) shall provide an opinion as to the change in value on a going forward basis in order that a determination may be made of the fair market value as of the date of closing.

(viii) There shall be no minority discount.

(ix) The valuation(s) is/are to be completed within 60 days from the date of the retainer of the valuator(s).

(x) An application is then to be made to the court within seven days to have the fair market value fixed by the Court. The closing shall take place within 30 days of the fixing of fair market value. Which party or parties are to ultimately bear the costs of the valuation(s) shall be determined at the time the fair market value is fixed by the Court.

(xi) The purchase price is to be the fair market value of Mr. Chau's 20% interest in MEJJ Enterprises Inc. and Monday's Choice Management Corporation fixed by the Court plus any further amount that has not been paid pursuant to the accounting hereinbefore ordered, and shall be paid in cash on closing unless Mr. Chau and Mr. Roopchand agree otherwise.

(xii) If any issues arise regarding the valuation and closing of the purchase, a motion to resolve them may be made to the Court.

(vii) If any other issues arise regarding the relief granted, a motion to resolve them may be made to the Court.

[ 45 ] The defendants and plaintiffs by counterclaim requested an award of punitive damages in their pleading. However this relief was not pursued at the trial.

[ 46 ] The action of the plaintiffs is dismissed. The counterclaim of the defendants and plaintiffs by counterclaim is granted in accordance with the relief ordered in these reasons.

[ 47 ] The defendants and plaintiffs by counterclaim are entitled to their costs of this action. They have claimed costs on a substantial indemnity basis. No argument as to the quantum of costs was made at the trial. The defendants and plaintiffs by counterclaim shall within 10 days deliver written submissions regarding their costs claim, including their claim for costs on a substantial indemnity basis, to be no more than three pages in length along with a proper cost outline in accordance with the rules. The plaintiffs and defendants by counterclaim shall have a further 10 days to deliver reply written submissions, to be of no more than three pages in length.

Newbould J.

Released: March 5, 2012

COURT FILE NO.: CV-12-9610-00CL
DATE: 20120305

ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N:

MOHAN ROOPCHAND, MEJJ ENTERPRISES INC and MONDAY’S CHOICE MANAGEMENT CORPORATION Plaintiffs and Defendants by Counterclaim - and - KIM CHAU and CENTURY 21 LEADING EDGE REALTY INC. Defendants and Plaintiffs by Counterclaim

REASONS FOR JUDGMENT
Newbould J.

Released: March 5, 2012

[^1]: Mr. Roopchand has had several lawyers acting for him in this action. The last was Mr. Muyal who was removed as solicitor for the plaintiffs, with their agreement, at the opening of trial. At a case conference on December 9, 2011 counsel for the parties, including Mr. Muyal for the plaintiffs, agreed that the sole issue was whether Mr. Roopchand signed the agreement in question. At the opening of trial, Mr. Muyal agreed that that was the sole issue, as did Mr. Kopach on behalf of the defendants.

[^2]: I refused to adjourn the trial, given its history and the necessity of adjournments in the past because of Mr. Roopchand's changing of lawyers. Mr. Muyal brought a motion on January 26, 2012 to be removed as solicitor of record because his retainer had not been properly paid and he attended with Mr. Roopchand before Campbell J. on February 24 2012. The motion was adjourned to the opening of trial. Campbell J. endorsed the record to say that Mr. Roopchand was aware that if he did not properly retain Mr. Muyal he might be required to proceed on his own. Mr. Roopchand asserted at the opening of trial that he had lost confidence in Mr. Muyal and agreed to the order removing Mr. Muyal.