COURT FILE NO.: CV-13-481428
DATE: 20140306
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Rosalie Farb, Applicant
AND:
969866 Ontario Limited and Irving Garton, Respondents
BEFORE: Mew J
COUNSEL: John Ormston, for the Applicant
D. Milosevic, for the Respondent Irving Garton
HEARD: 4 March 2014
ENDORSEMENT
[1] Counsel attended to obtain further directions from the court regarding the implementation of the court’s order of 30 January 2014 (in which the court ordered, inter alia, that the shares of 969866 Ontario Limited should be valued and that thereafter, based upon such valuation, Irving Garton would have 90 days to purchase Rosalie Farb’s shares in the company (the order went on to deal with what would happen if Mr Garton elected not to purchase Ms. Farb’s shares).
[2] The parties have been unable to agree on the appointment of either a business valuer or an appraiser (the principal assets of the company being certain real estate holdings). The parties are also unable to agree on what the terms of reference for these professionals should be.
[3] The business valuer and the appraiser shall be selected using the following process:
a. Each party will submit the names of three individual valuers and three individual appraisers satisfactory to them;
b. The only ground upon which an opposing party can object to a nominee is if that individual nominee has a conflict of interest because of other professional services undertaken by him/her for any of the parties;
c. The lists of nominees will be exchanged at the same time (unless the parties agree otherwise at 1:00PM on 21 March 2014);
d. If a nominee is objected to on the ground of a conflict of interest, notice of the objection should be given by 1:00PM on 24 March 2014 and a replacement nominee shall be notified by 1:00PM on 25 March 2014.
e. If both sides nominate the same person, that individual shall be appointed as the valuer/appraiser (as the case may be);
f. If more two or more individuals are nominated by both sides, or if the nominees of each side are all different, the parties shall each rank all six nominees for each position (valuer and appraiser) in order of preference (1 for first choice, 2 for second choice, etc.). These rankings should be placed in a sealed envelope which should be dispatched by overnight courier or messenger on 26 March 2014 for delivery on 27 March 2014.
g. On 27 March 2014, the envelopes containing the nominations shall be opened and the rankings given by each party shall be aggregated. The nominee for each position with the lowest aggregate score will be appointed forthwith. In the event of a tie, it shall be resolved by a single coin toss.
h. The parties may, by agreement, vary any of the dates set out in the previous subparagraphs. Absent such agreement, the dates and times for the various steps listed shall be complied with.
[4] The valuer selected by the process described above shall be provided with a copy of the court’s 30 January 2014 order. The valuer shall value the shares of the company as a going concern with no minority discount.
[5] The appraiser shall make such recommendations as he or she deems appropriate concerning the investigations considered necessary to prepare a commercial appraisal of the company’s real estate assets. To the extent that any additional instructions need to be given to the appraiser, such instructions shall be given by the valuer.
[6] The reasonable professional fees and other charges of the valuer and the appraiser, and the providers of any third party services reasonably rendered to the valuer and/or the appraiser shall be borne by 969866 Ontario Limited.
[7] The valuation (and, necessarily, the appraisal, which will form part of the valuation) shall be completed by 30 April 2014 unless the parties agree otherwise or the court so orders.
[8] In the event of further difficulties arising in respect of the implementation of either this order or the court’s 30 January 2014 order, counsel should contact my secretary to make an appointment for a further attendance.
Mew J
Date: 6 March 2014