SUPERIOR COURT OF JUSTICE – ONTARIO

(COMMERCIAL LIST)

COURT FILE NO.: CV-13-10103-00CL
DATE: 20130531

COMBER HOLDINGS INC., Plaintiff

• and -

1223225 ONTARIO INC. and 1223224 ONTARIO INC., Defendants

BEFORE: C.L. CAMPBELL J.

COUNSEL:
Frank Bowman, for the Plaintiff
Timothy Fitzsimmons, for the Defendants

HEARD: May 28, 2013

ENDORSEMENT

[1] This Application seeks rectification of Articles of Amalgamation of Comber Holdings Inc. to reflect the intentions of the respective shareholders of the two respondent companies.

[2] The intention of the corporate parties, their respective shareholders and their professional advisors was to create a reorganization of Comber Holdings on a tax-deferred basis for their underlying shareholders. In order for the reorganization to be carried out in the manner intended (tax-deferred), the Class B shares of Comber Holdings should have had a voting right. Due to unintended mistake, the shares were issued on a non-voting basis.

[3] This Application seeks rectification on unopposed basis to provide for the transfer of Class B voting as opposed to non-voting shares. The Application relief is not opposed by either of the Canada Revenue Agency or the Director under the Ontario Business Corporations Act and is supported by the affidavits of the affected shareholders and their professional advisors.

[4] I am satisfied that this Court does have the jurisdiction to grant the relief sought (see 80 Wellesley Street East v. Fundy Bay Builders Ltd. et al., 1972 535 (ON CA), [1972] 2 O.R. 280 (C.A.)).

[5] I am satisfied that the prerequisites for granting relief with respect to mistake of this nature have been met as set out in Di Battista v. 874687 Ontario Inc. (2006) 2005 51220 (ON SC), 80 O.R. (3d) 136 (S.C.J.).

[6] For the above reasons, the relief sought is granted.

C.L. CAMPBELL J.

Date: May 31, 2013