Bimman v. Neiman, 2015 ONSC 3076

COURT FILE NO.: CV-11-0000904800-CL

DATE: 20150519

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Alexander Bimman and 2182474 Ontario Inc., Plaintiffs

AND:

Arkadi Neiman, Coryana Enterprises Limited, 1050828 Ontario Ltd., Canadian Investment & Consulting Central Corporation, Larwest Canada (Caribbean) Inc., 2182158 Ontario Ltd., 1765350 Ontario Inc., 1771636 Ontario Ltd., Edward Poberezkin, Victor Itkine, Roman Shmulik, Alex Glozman and Corayana Services Ltd., Defendants

BEFORE: Gans J.

COUNSEL: Igor Ellyn and Belinda Schubert, for the Plaintiffs

Douglas Christie and David Rubin, for the Defendants

HEARD: In writing

ENDORSEMENT

Introduction

[1] The plaintiffs bring a motion to amend the Reasons for Judgment (“the Reasons”) that I released on April 16, 2015: Bimman v. Neiman, 2015 ONSC 2313. Putting the issues simply, they ask that I formally “adjudicate” on an interpretation of the words “the necessary funds” found in Article 6.01(b) of the Shareholders’ Agreement, set out verbatim at paragraphs 66 and 137 of the Reasons.

[2] In the alternative, they ask that if I am not persuaded that the interpretation of that phrase accords with their position, I should nevertheless amend the calculation of the en-bloc value of the shares to reflect the fact that the total sums advanced under the Cash Calls should be treated as equity and not debt.

Analysis

[3] I am not persuaded that the procedure asked of me is appropriate in these circumstances. The plaintiffs have rights of appeal of which they may avail themselves should they so desire.

[4] In that respect, I am of the view that the cases to which my attention was directed as part of the motion, namely Roopchand v. Chau[1] and Gore Mutual Insurance Co. v. 1443249 Ontario Ltd,[2] are distinguishable on their facts. Indeed, I am of the view that this case is more analogous to the decision of Borins J., as he then was, in National Trust Co. v. Saks,[3] which would permit an outright dismissal of the motion.

[5] Furthermore, I do not think that the principles discussed by Himel J. in Schmuck v. Reynolds-Schmuck,[4] applicable in instances where a “reconsideration” of the arguments and evidence may be appropriate, are engaged in the instant case.

[6] However, I make the following observations in this Addendum to my Reasons for Judgment:

a. A reading of my Reasons indicates that while I did not deal with the argument sought to be revisited in this motion head on, which I am not in any event obliged to do in the discharge of my duties as a jurist,[5] I implicitly rejected the interpretation asserted again in this motion. I was very much alive to the issue when it was argued and as I wrote the judgment.

b. The argument now advanced by the plaintiffs was not rooted in any facts to which my attention was directed during the evidence portion of the trial, nor during argument. In effect, it was a gloss put on the words of the November Shareholders’ Agreement by plaintiffs’ counsel. It was, as I observed during argument, a “4 a.m. inspiration,” which all good counsel have in the heat of battle. It was not plaintiffs’ counsel’s primary or strongest argument.

c. Put otherwise, the argument advanced by plaintiffs’ counsel was not within the reasonable contemplation of the parties at the time the Shareholders’ Agreements were being negotiated. Indeed, while the words “necessary funds” were used in an earlier draft of the August Agreement, when Article 6.01(b) was debated by Itkine and Bimman in various email exchanges, its use in the earlier iteration of the agreement actually undercuts the plaintiffs’ suggested interpretation in my view.[6]

d. Finally, this proposed interpretation is not referenced in the pleadings, which although not those of trial counsel, still must be considered in defining the issues for trial and judgment. In that respect, a review of paragraph 6 of the Plaintiffs’ Reply and Defence to Counterclaim is most instructive.

[7] Insofar as the second issue is concerned, namely that I am obliged to revalue Bimman’s interest at this moment in time as if the Cash Calls resulted in the creation of equity and not a hybrid of debt and equity as I have found, I agree with the position of the defendants that: (a) this position was specifically abandoned at the commencement of trial and the defendants were not permitted an opportunity to lead evidence on this issue by agreement of the parties; and (b) this position is at variance with the manner in which the plaintiffs argued the issue pertaining to the allegedly criminal rate of interest on the shareholder loans. I decline further comment accordingly. The plaintiffs have their remedies elsewhere.

Conclusion

[8] The plaintiffs’ motion is hereby dismissed with costs.

Gans J.

Date: May 19, 2015

[^1]: 2013 ONSC 2119, [2013] O.J. No. 1646.

[^2]: [2004] O.J. No. 1896 (S.C.), 130 A.C.W.S. (3d) 597.

[^3]: [1995] O.J. No. 853 (Gen. Div.), 54 A.C.W.S. (3d) 567.

[^4]: (2000), 2000 22323 (ON SC), 46 O.R. (3d) 702 (S.C.), [2000] O.J. No. 247, at para. 25.

[^5]: R. v. Vuradin, 2013 SCC 38 at para. 17; J2 Global Communications, Inc. v. Protus IP Solutions Inc., 2008 FC 759 at para. 42; R. v. Tong, 2014 ONSC 1861 at para. 35; R. v. C.R.C., 2009 SKCA 13 at para. 25; Toliver v. Koepke, 2013 ABCA 390 at para. 4(b); Épiciers Unis Métro-Richelieu Inc. c. Québec (Régie des alcools, des courses et des jeux), [1996] J.Q. no. 330 (C.A.) at para. 42.

[^6]: 08-100: Shareholders’ Agreement August 9, 2009; Exhibit 10 – August 15, 2009 e-mail from SB to AN re. SHA amendments.