ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-24076
DATE: 2012/10/22

B E T W E E N:

G. Boyd Van Allen and Van Allen Health Facility Ltd.

Graydon Sheppard, for the Plaintiffs

Plaintiffs

• and -

Leo Vos and Vos Health Facility Ltd.

Michael White, for the Defendants

Defendants

HEARD at Hamilton, Ontario: September 4, 5, 6, 7 & 11, 2012

The Honourable Justice J. R. Henderson

REASONS FOR JUDGMENT

INTRODUCTION

1The plaintiff, Boyd Van Allen (“Van Allen”) and the defendant, Leo Vos (“Vos”) are dentists who carried on their dental practice in Brantford as partners until May 31, 2009. On that date Vos left the partnership, at the request of Van Allen, and thereafter both parties carried on independent dental practices.

2The parties disagree as to the accounting to be done on the termination of the partnership. In addition, Vos claims that he was underpaid a significant amount of the annual partnership profits to which he was entitled from February 1, 1999, to May 31, 2009.

3These disputes revolve around the validity of a written partnership agreement that was signed on January 21, 2004 (“the 2004 agreement”). The 2004 agreement contains provisions with respect to both the allocation of annual partnership profits and the accounting on the termination of the partnership. The matter is complicated by the fact that the parties attempted to negotiate an oral agreement, outside of the 2004 agreement, to deal with the termination of the partnership.

BACKGROUND

4Van Allen and Vos first became partners in 1989 when Vos purchased a 49% share in Van Allen’s existing dental practice. Thereafter, they operated as partners in a 51/49 relationship in Van Allen’s favour.

5In approximately 1997, Van Allen and Vos agreed to change the terms of their partnership so that there would be a 53/47 split of the equity in Van Allen’s favour. At the same time the parties agreed to change the way in which the profits of the partnership were allocated between them.

6Subsequently, Van Allen and Vos retained separate accountants and a lawyer to engage in the process of drafting a new partnership agreement. The parties signed the 2004 agreement on January 21, 2004, but that agreement states that it is effective as of February 1, 1999.

7At all relevant times Lorraine Van Allen (“Lorraine”), Van Allen’s wife, kept the books and records for the partnership. At the end of each year Lorraine forwarded the partnership records to the Deloitte accounting firm (“Deloitte”) so that Deloitte could prepare the annual financial statements, including the allocation of the partnership profits.

8On November 14, 2008, pursuant to the terms of the 2004 agreement, Van Allen gave notice to Vos that Van Allen wished to terminate the partnership and that he wished Vos to vacate the premises in which they practiced dentistry. The parties agree that Van Allen was entitled to make this request of Vos, and that Vos accepted Van Allen’s notice and his request.

9After Van Allen delivered the notice of termination, in the hope of achieving a tax advantage, Van Allen and Vos attempted to negotiate an agreement to terminate the partnership in a manner other than that set out in the 2004 agreement. Accordingly, they met to discuss the allocation of the equipment, the staff, the leasehold improvements and the goodwill of the partnership. Accountants for both parties were involved in this negotiation process. The parties now disagree as to whether they reached a binding termination agreement outside of the 2004 agreement.

10Furthermore, during the winding up of the partnership, Vos’ accountant discovered a problem with the historic allocation of the partnership profits. Although the 2004 agreement provided a specific formula for the allocation of the annual profits, the partnership records from February 1999 onward show that the partnership profits had not been allocated in accordance with that formula.

11Over the last weekend in May 2009, with Van Allen’s consent, Vos took some of the partnership equipment, some of the staff, and his patient records to a new location where he started his independent dental practice. Van Allen and Vos have not carried on business as partners since May 31, 2009.

12It should be noted that Van Allen and Vos were each the principals in two holding corporations, and that their partnership actually consisted of three separate corporate entities. However, it is not necessary in this decision to deal with each of these entities individually. The corporate entities were merely vehicles for each of the partners to carry on their business. Therefore, I will treat Van Allen and his corporations as one entity and I will do the same for Vos. The partnership will also be treated as one entity.

THE ISSUES

13The claims in this action depend upon the specific terms of the partnership between Van Allen and Vos. Vos takes the position that the 2004 agreement is valid and binding, and applies to all relevant matters before the court. Van Allen submits that the 2004 agreement should not be applied to the allocation of the partnership profits or to the accounting on termination, for the reasons set out below.

14Regarding termination, Van Allen submits that the parties made a valid oral agreement outside of the 2004 agreement, and that pursuant to that oral agreement Van Allen owes the sum of $65,858.00 to Vos for the termination of the partnership. Van Allen therefore asks that he be permitted to pay that sum to Vos in full satisfaction of any monies owed to Vos as a consequence of terminating the partnership. Van Allen also asks for a declaration that the partnership was terminated as of May 31, 2009.

15Vos acknowledges that the partnership ceased as of May 31, 2009. However, Vos says that they never reached an oral agreement to terminate outside of the 2004 agreement. Therefore, Vos submits that the terms of the 2004 agreement apply regarding termination. He submits that he is owed far more than $65,858.00 for the termination of the partnership, and he asks for an accounting pursuant to the terms of paragraph 11 of the 2004 agreement in order to determine the financial consequences of the termination.

16Regarding the allocation of partnership profits, Vos claims that the formula set out in the 2004 agreement has not been followed since February 1999. Therefore, Vos claims that he has been underpaid his share of the profits from February 1, 1999, until May 31, 2009, in the total amount of $119,056.00.

17Van Allen’s position is that the 2004 agreement was an attempt to codify the method by which the partnership profits had been allocated since about 1997. To the extent that the formula in the 2004 agreement for allocating partnership profits is inconsistent with the historic allocation of profits, Van Allen says the 2004 agreement is incorrect and is not binding. Further, he says that Vos has agreed or acquiesced to the historic allocation of the profits. Thus, Van Allen takes the position that there are no monies owing to Vos for unpaid partnership profits.

18In the alternative, if any amount of unpaid profits remains owing to Vos, Van Allen submits that Vos’ claim is barred by reason of the expiry of the relevant limitation period.

19I propose to analyze the issues in this action by way of the following questions:

(i) Is the 2004 agreement valid and binding?

(ii) Did the parties reach an agreement to terminate the partnership in a manner other than that set out in the 2004 agreement?

(iii) In consideration of the answers to questions (i) and (ii) above, what orders should be made regarding the termination of the partnership?

(iv) Does Vos have a claim for unpaid partnership profits from February 1, 1999, to May 31, 2009?

(v) If so, is Vos’ claim prohibited by the expiry of a limitation period?

IS THE 2004 AGREEMENT VALID?

20In 1997 Van Allen and Vos agreed to revise their existing partnership relationship. In general terms they agreed to change the equity ownership in the partnership to a 53/47 split in favour of Van Allen, and they agreed to change the manner in which the partnership profits were allocated between them.

21Regarding profit allocation, they both testified that in 1997 Lloyd Wright (“Wright”), the partnership’s former accountant at Deloitte, gave them some options to consider and they both chose an option that they referred to as an “eat what you kill” arrangement.

22Both parties acknowledged that they understood the “eat what you kill” concept to mean that they would each be allocated 100% of the income that they each produced, less the specific expenses that were incurred to generate that income. Tim Leonard (“Leonard”), Wright’s successor as the partnership’s accountant at Deloitte, characterized the new relationship as more of a cost sharing arrangement than a true partnership.

23Unfortunately, at the time, the parties did not specifically define the profit allocation formula. Leonard did, in 1997, prepare draft financial statements to show how the partnership profits would be allocated under the new system. However, I find that these financial statements are not helpful as they only set out the net amount allocated to each party and did not set out the method by which the allocations were calculated.

24Shortly after they agreed to revise their partnership arrangement in 1997, Van Allen and Vos started a process aimed at preparing a formal written partnership agreement. Both Leonard and Wright were involved in the process, and the parties jointly retained a lawyer to draft the agreement. Several drafts were prepared, reviewed, and modified. The result was the 2004 agreement, which stated that it was effective as of February 1, 1999. I note that the 2004 agreement contains a very specific formula with respect to the allocation of partnership profits.

25There is now a dispute as to how the associate’s expense was to be treated for the purpose of allocating the partnership profits. The associate was Van Allen’s daughter who was a dentist employed by the partnership. Through the partnership, the associate did dental work for patients of Van Allen, for patients of Vos, and for the associate’s own patients. As remuneration, the associate was paid 40% of her billings for all work that she did, regardless of whose patients she worked on. That 40% of the billings of the associate has been referred to as “the associate’s expense”.

26Wright testified that the associate’s expense was to be treated as a direct expense. That is, for each patient, the associate’s expense was to be deducted against the income generated by the associate’s work on that patient. In the partnership books, the associate’s expense would be apportioned to reflect the work the associate did for the patients of each of the three dentists of record. The associate’s expense for each of the three dentists of record would then be deducted from the billings the associate generated for each of the three dentists of record. In this way, Vos would get credit for the billings generated by the associate for her work on Vos’ patients, less that portion of the associate’s expense that was paid to the associate for her work on Vos’ patients. The same would apply for the associate’s billings regarding Van Allen’s patients.

27Further, Wright testified that he had instructed Lorraine to treat the associate’s expense as a direct expense in the partnership books. In a memo dated April 22, 1997, from Wright to Lorraine, Wright wrote that “the associate fees and hygiene costs are allocated between the three doctors based on production”. In my opinion, this memo was Wright’s instruction to Lorraine to treat the associate’s expense as a direct expense.

28Contrary to Wright’s instructions, in allocating the profit between the partners, Lorraine treated the associate’s expense as a shared expense. That is, Lorraine deducted all of the associate’s expense from the total of all of the associate’s billings for all patients in order to calculate the associate’s profit. Then, Lorraine divided the associate’s profit between the partners in accordance with their equity ownership in the partnership. In this way, the associate’s expense was shared between the partners instead of being treated as a direct expense against each partner’s production.

29As time passed, for each year after 1997, Lorraine treated the associate’s expense as a shared expense, not as a direct expense, as she kept the books and records of the partnership. Each year Lorraine forwarded these books and records to the partnership accountant, Leonard, who prepared the financial statements. Leonard simply took the figures provided to him by Lorraine each year and inserted them into the partnership’s financial statements. Then, the financial statements were circulated to and approved by Van Allen and Vos.

30The 2004 agreement contains a very specific formula for the allocation of partnership profits. Schedule A of the 2004 agreement states, in part, that: “A Partner’s “Portion” of the Associate Staff Expense is an amount equal to the ratio that the fees charged by the Partnership to the Partner’s Clients in respect of Associate Billings bears to the total of all fees charged by the Partnership in respect of Associate Billings to the Clients of all the Partners.”

31Therefore, the 2004 agreement treats the associate’s expense as a direct expense that is to be deducted against the associate’s billings for each of the three dentists of record. This provision of the 2004 agreement is inconsistent with the manner in which Lorraine had been allocating the partnership profits since 1997.

32Van Allen says that the 2004 agreement was intended to codify the way in which Lorraine had been keeping the partnership books. Therefore, Van Allen says that this portion of the 2004 agreement is incorrect and should not be binding on the parties. Vos denies that he agreed to treat the associate’s expense as a shared expense. Rather, Vos says that he relied on Wright’s advice that “eat what you kill” meant that Vos would be allocated all of the income that was produced through his patients, less the specific expenses that were incurred to generate that income.

33In my view the parole evidence rule applies to this situation. That rule is concisely summarized by the Supreme Court of Canada in the case of Eli Lilly & Co. v. Novopharm Ltd . 1998 791 (SCC) , [1998] 2 S.C.R. 129 at para. 54 as follows:

The contractual intent of the parties is to be determined by reference to the words they used in drafting the document, possibly read in light of the surrounding circumstances which were prevalent at the time. Evidence of one party’s subjective intention has no independent place in this determination.

34The Court continued at para. 55 as follows:

“Indeed, it is unnecessary to consider any extrinsic evidence at all when the document is clear and unambiguous on its face.”

35I find that the 2004 agreement is very detailed, and it is clear and unambiguous on its face. The 2004 agreement, signed and dated by the parties, clearly shows that the associate’s expense is to be treated as a direct expense for the purposes of allocating the partnership profits. Thus, extrinsic evidence as to the subjective intention of the parties is irrelevant. The 2004 agreement is valid and binding.

36In the alternative, even if I were to consider the subjective intention of the parties, I find that there was no meeting of the minds between Van Allen and Vos as to the allocation of partnership profits in 1997, or at any time until the 2004 agreement was signed. In 1997 they both agreed to an “eat what you kill” concept, but they never defined the concept.

37Van Allen and Vos did sign a one-page document in June 1997 as evidence of their new arrangement, but that document merely said that they would use a “new sharing formula according to Lloyd Wright and Tim Leonard”. Wright believed that the associate’s expense was to be a direct expense, and Leonard treated the associate’s expense as a shared expense, based on the information he received from Lorraine. Therefore, there was no meeting of the minds between the accountants or between Van Allen and Vos until the 2004 agreement was signed.

38Lastly, I find that the 2004 agreement was a result of a very long detailed process that involved two accountants and one lawyer. At least eight separate versions of this 2004 agreement were prepared before it was signed. The end result is a document that is 19 typed pages, plus four schedules, in length. There is no reason to prefer the vague agreement made in 1997 to the detailed written 2004 agreement.

39Therefore, I find that the 2004 agreement is valid and that the parties are bound to the terms of the 2004 agreement. I do not accept the submission that the portion of the 2004 agreement that deals with the allocation of partnership profits is incorrect and not binding.

THE AGREEMENT TO TERMINATE THE PARTNERSHIP

40Van Allen triggered the dissolution of the partnership when he gave his notice of termination to Vos on November 14, 2008. Therefore, pursuant to paragraph 12(e) of the 2004 agreement, the partnership would dissolve on the 180 th day after the notice was given.

41Paragraph 11 of the 2004 agreement reads in part, “Unless otherwise agreed, upon the dissolution of the Partnership pursuant to paragraph 12(e) hereof, each Partner shall purchase, respectively, the portion of the Partnership’s goodwill constituted by the Patients of the Partnership in respect of whom the Partner is the principal treating dentist … for the amount of One Dollar ($1.00).”

42Paragraph 11 then sets out five subparagraphs regarding other matters related to the dissolution pursuant to paragraph 12 (e). Subparagraph (a) provides for Vos to vacate the premises; subparagraph (b) provides for an allocation of equipment; subparagraph (c) provides for an allocation of consumables; subparagraph (d) provides for an accounting for leasehold improvements; and subparagraph (e) provides for payment for the associate’s goodwill. The final part of paragraph 11 deals with the allocation of liabilities and obligations between the partners.

43Despite these specific provisions, I find that in November 2008 Van Allen and Vos attempted to negotiate a different termination agreement because the Deloitte accountants had advised them that there could be serious tax consequences if the partnership was terminated strictly in accordance with the 2004 agreement. The partners agreed to try to negotiate this new agreement with the assistance of Deloitte, and to use the 2004 agreement as a guide.

44The agreement between Van Allen and Vos to try to negotiate a different termination agreement outside of the terms of the 2004 agreement can be described as a “contract to make a contract”. A contract to make a contract is not in fact a binding agreement unless and until the parties have agreed upon all of the essential provisions intended to govern the contractual relationship between them. If the contract to make a contract is incomplete, general, or uncertain, or is dependent upon the making of a formal written document, then the contract to make a contract is not a contract at all. See the case of Bawitko Investments Ltd. v. Kernels Popcorn Ltd. , 1991 2734 (ON CA) , [1991] O.J. No. 495 (OCA) .

45In their attempt to negotiate the new termination agreement, both parties met regularly with several accountants from Deloitte, and in particular they met with Lana Hillier (“Hillier”). Hillier sent out an email dated February 25, 2009, in which she set out the process that the parties should follow in order to reach a new termination agreement. Hillier wrote, in part, that there were three steps that had to take place and she recorded the person(s) who would be responsible for each step, as follows:

1. Agree on value and split of equipment – Leo and Boyd

2. Agree on value of leaseholds – Leo and Boyd

3. Recommend split of goodwill and any remaining assets - Deloitte

46All of the witnesses agree that step number three in Hillier’s email involved a tax plan to be prepared and recommended by Deloitte. Further, it was acknowledged that Deloitte could prepare more than one option for consideration, and would give an accounting opinion regarding the various options. Then, the partners would have to make a decision as to how to terminate the partnership.

47In her email Hillier wrote that, after these three steps were completed, it was anticipated that the approved plan for terminating the partnership would be forwarded to the firm lawyer so that a final written agreement could be drafted.

48As a result of a series of meetings, Van Allen and Vos were able to agree on many provisions for the termination of the partnership. In particular, they agreed on the termination date of May 31, 2009; they agreed upon the division of the staff; they agreed upon the division of the equipment; they agreed upon the accountant’s calculation of compensation for the division of equipment; and they agreed upon the value of the leasehold improvements.

49The last meeting between the partners was on May 22, 2009. Leonard, Hillier, Wright, and Lorraine were all present at this meeting with Van Allen and Vos. The only outstanding item to be agreed upon by the partners, prior to Deloitte preparing the tax plan, was that of associate goodwill. Vos believed he was entitled to $64,000.00 for the associate goodwill, and Van Allen offered to settle that item for a much lower figure. Despite some hard feelings between the parties, I find that Van Allen and Vos agreed at this meeting that Van Allen would pay to Vos the sum of $24,000.00 for the associate goodwill.

50Therefore, step number one and step number two in Hillier’s email had been completed by the end of the May 22, 2009 meeting. The next step in the process was for Deloitte to prepare the tax plan and make recommendations, which would include recommendations for the treatment of the balance of the partnership’s goodwill. This could not be done, however, until the May 31, 2009 year-end statements had been completed.

51When the May 31, 2009 year-end financial statements were delivered in draft in August 2009, Vos raised concerns regarding the allocation of the partnership profits, which caused Vos to retain Wright to ask certain questions of Deloitte. At that point the relationship between Van Allen and Vos completely broke down. Consequently, the financial statements for the May 31, 2009 year-end were never finalized, and Deloitte never prepared the tax plan or made recommendations. Thus, step number three in Hillier’s email was never completed. Van Allen and Vos never met again.

52Van Allen submits that the parties made a binding termination agreement outside of the 2004 agreement. He submits that they agreed on all of the elements set out in paragraphs 11(a) to (e) of the 2004 agreement, and therefore there was nothing further to be agreed between Van Allen and Vos. He says that they had only to let the accountants do their tax planning work in order to finalize the new termination agreement.

53I accept that the parties had agreed on the items set out in paragraphs 11(a) through (e), but I find that they had only done so in the context of attempting to make a complete termination agreement outside of the 2004 agreement. The parties knew that Deloitte would, after the parties had agreed on these basic items, prepare a tax plan and make recommendations that could save or defer taxes for one or both of the parties. Several options may have been available. Therefore, the oral agreements between the parties regarding the items in paragraphs 11(a) through (e) were contingent upon their receipt of the tax plan and the recommendations from Deloitte, and contingent upon Van Allen and Vos accepting the recommendations, or otherwise agreeing to a tax plan.

54Since the tax plan was never prepared and the recommendations were never made, all of the terms of a new termination agreement were never finalized. The new agreement was incomplete. Therefore, the contract to make a contract between Van Allen and Vos is not a binding agreement. Rather, Van Allen and Vos remain bound to the terms of the 2004 agreement regarding the termination of the partnership.

THE APPROPRIATE TERMINATION ORDERS

55Van Allen and Vos did in fact terminate their partnership as of May 31, 2009. As of that date they ceased to practice together as partners, and they never worked together or acted as partners thereafter. Moreover, the consumables, equipment, and staff of the partnership were divided between them as of May 31, 2009. Therefore, as part of the judgment in this action there will be a declaration that the partnership has been terminated effective May 31, 2009.

56The method of accounting for the termination of the partnership is set out in paragraph 11 of the 2004 agreement. The parties are bound to the provisions of the 2004 agreement. Accordingly, as part of the judgment in this action there will be an order for an accounting between Van Allen and Vos in accordance with the provisions of paragraph 11 of the 2004 agreement.

VOS’ CLAIM FOR UNPAID PARTNERSHIP PROFITS

57The 2004 agreement sets out a formula for allocating the partnership profits whereby the associate’s expense is to be treated as a direct expense. In fact, since February 1999 the partnership profits had been allocated and paid out by treating the associate’s expense as a shared expense. This constitutes a breach of the 2004 agreement.

58I do not accept Van Allen’s suggestion that Vos has agreed or acquiesced to the shared expense approach because Vos failed to object to the allocations of the partnership profits that were incorporated in the financial statements each year. The evidence is clear that the method of allocating the partnership profits is not apparent on the face the financial statements as the financial statements contained only net figures for each partner’s allocation. Also, Vos was never told that the profit sharing was anything other than an “eat what you kill” arrangement. Thus, there is no evidence that Vos was aware that the associate’s expense was being treated as a shared expense.

59As to damages, because Van Allen referred more patients to the associate, the improper accounting treatment of the associate’s expense has resulted in Vos absorbing more than his share of the associate’s expense. Therefore, Vos has been underpaid his share of the partnership profits since February 1, 1999.

60I accept the calculations done by Hillier and by Wright as to the total amount of the shortfall. I therefore find that Vos was underpaid his share of the partnership profits in the total amount of $119,056.00 from February 1, 1999 to May 31, 2009.

THE LIMITATION PERIOD

61In response to Vos’ claim for unpaid partnership profits, Van Allen submits that the limitation period prohibits Vos from recovering some, or all, of this claim.

62The parties agree that a limitation period of two years for breach of contract is the appropriate one in this case, and that the limitation period commences on the date that Vos knew or ought to have known that the partnership profits were not being properly allocated.

63I reject Van Allen’s argument that Vos knew or ought to have known of the improper allocation of partnership profits at the end of each year when Deloitte prepared the financial statements. As discussed previously, Vos was not aware that the associate’s expense was being treated as a shared expense, and he would not have been alerted to that fact by simply reading the financial statements.

64I accept that Vos could have retained his accountant to review the documentation that supported the financial statements in order to determine if the partnership profits were being allocated properly, as Wright did in approximately August 2009. However, in my view there was no obligation on Vos to do so. The partnership accountant was Deloitte; Deloitte prepared the financial statements on instructions from the partnership’s office manager; and the parties had a written partnership agreement that set out the formula for allocating the partnership profits. In my view, Vos was entitled to rely on the calculations done by Deloitte each year, and he was entitled to assume that those calculations were made in compliance with the 2004 agreement.

65Therefore, I find that the first date on which Vos knew or ought to have known that the allocation of the partnership profits was not being done properly was October 23, 2009. On that date Wright, on Vos’ behalf, received answers from Deloitte as to his concerns about the allocation of the partnership profits that was set out in the draft financial statements for the year ending May 31, 2009.

66Because Vos issued a Statement of Claim on May 9, 2011, in this action and therein made a claim for unpaid partnership profits, I find that Vos commenced his claim well within the two-year limitation period.

67For these reasons I find that Vos’ claim for unpaid partnership profits is not prohibited by reason of the expiry of the limitation period.

CONCLUSION

68In summary, I make the following orders and judgments:

(1) It is declared that the partnership between Van Allen and Vos has been terminated as of May 31, 2009;

(2) It is ordered that there will be an accounting with respect to the termination of the partnership in accordance with the provisions of paragraph 11 of the 2004 agreement;

(3) It is ordered and adjudged that Van Allen pay to Vos the sum of $119,056.00 as Vos’s unpaid share of the partnership profits from February 1, 1999 to May 31, 2009.

69The parties shall attempt to resolve any matters that arise from this decision, including the issues of prejudgment interest and costs. If there are any matters that the parties are unable to resolve, either party may arrange to make submissions to the court through the trial coordinator at Welland.

Henderson J.

Released: October 22, 2012

COURT FILE NO.: 10-24076
DATE: 2012/10/22

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: G. Boyd Van Allen and Van Allen Health Facility Ltd. Plaintiffs - and – Leo Vos and Vos Health Facility Ltd. Defendants REASONS FOR JUDGMENT Henderson, J.