SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-06-CV305132-0000
DATE: 20130109

RE: MARK COUPER, Plaintiff

AND:

Nu-Life Corp, NU-LIFE NUTRITION LTD, VITAQUEST INTERNATIONAL LLC, and KEITH FRANKEL

BEFORE: Stinson J.

COUNSEL:
Barry M. Weintraub, for the plaintiff

Kenneth E. Jull and Michael Nowina, for the defendants Vitaquest and Frankel

HEARD: January 9, 2013

ORAL RULING

[1] This motion for summary judgment arose in an unusual fashion. In this action the plaintiff advances among others a claim for remedies under the oppression remedy provisions of the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 and the Canada Business Corporations Act, R.S.C. 1985, c. C-44.

[2] In his statement of claim issued January 31, 2006, the plaintiff pleaded in paragraph 30 that the defendant Frankel "caused the business and affairs of Nu-Life, Nu-Life Nutrition and its affiliate Vitaquest to be carried on or conducted in a manner that was oppressive or unfairly prejudicial to more than unfairly disregarded the interest of the plaintiff who was either a creditor, shareholder, director and officer of the said corporations."

[3] The action proceeded over the intervening years through pleadings, amendments to pleadings, replacement of plaintiff's counsel, discovery and ultimately in May 2012 to the pretrial stage. During the pretrial, according to defence counsel, they become aware for the first time that the plaintiff intended to rely at trial on certain additional factual allegations in support of his claim for oppression. The defendants asserted that these facts have not been included in the statement of claim as amended nor otherwise particularize. The plaintiff for his part asserted that they were subsumed in the original oppression complaint.

[4] Out of an abundance of caution, on May 29, 2012, the defendants served a demand for particulars on the plaintiff. In response, on June 1, 2012, the plaintiff served an 8-page response to demand for particulars (the “Response”). The Response contains details of various acts of alleged oppression that occurred both before and after the issuance of the statement of claim. The defendants took exception to the Response, complaining that it contained not only more detailed information, but also acts which were sufficiently dated as to be barred by the expiry of a limitation period and, accordingly, could not be relied upon to support the plaintiff's claim. As a result, in due course, the defendants moved for partial summary judgment, asking the court to dismiss the claim to the extent it was founded on the allegedly dated allegations contained in the Response.

[5] At the outset of the hearing of the defendants' motion, I raised with counsel certain procedural issues, given the unusual fashion in which the motion had arisen. In turn, counsel for the plaintiff raised a concern regarding the suitability of the summary judgment process for the resolution of the issues, a point raised in his factum.

[6] This is by no means a straight forward case. Not only are the pleadings lengthy and complex, but the factual history between the adversaries covers an extended period of time and a complicated series of events and transactions. Among other things, the knowledge, motives, intentions and bona fides of the principal players are in dispute. In essence, the plaintiff asserts that the individual defendant acted in a calculated fashion to freeze him out of their joint enterprise. Needless to say, that allegation is disputed and has not yet been proven and determining its truth will require a trial regardless of the outcome of this motion for partial summary judgment.

[7] On this motion, the defendants asked the court to conclude that many of the allegations in the Response are statute-barred. The answer to that question is, in my respectful view, not as straight-forward as one might like. It is true that some of the facts mentioned in the Response are historical and dated, whether they were or were at the time perceived to be acts of oppression is a live issue. These acts are part of a complex factual matrix, being the ongoing business relationship between the parties. Precisely when and whether a potential claim for oppression might have been founded upon them is difficult to say at this juncture. By itself, a single act may not amount to oppressive conduct and thus it might not be perceived as such. Only when followed by or connected with other activities may it be possible to perceive a course of conduct that amounts to oppression.

[8] In the leading case of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at para. 51, the Court of Appeal cautioned that where a motions judge cannot achieve the full appreciation of the evidence and issues that is required to make dispositive findings, the interest of justice requires a trial. Given the complexities of this case and, in particular, the potential “moving target” for the commencement of the running of the limitation period for the plaintiff's oppression remedy claim, I have concluded that this is such a case.

[9] Specific findings of fact pertinent to each of the allegations and the placing of those facts in the context of the plaintiff's knowledge of and concerns about the actions of the defendants are necessary to achieve a fair and just result. The record on this motion is not a reliable basis to make the required dispositive findings. I therefore conclude that the motion for summary judgment must be dismissed.

[10] Costs of the motion are reserved to the judge presiding at the trial of the action.

Stinson J.

Date of the Ruling: January 9, 2013
Date of Release: January 10, 2013