COURT FILE NO.: 7224/12 SR DATE: 2017/06/08 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Mario Mottillo (Plaintiff) AND: O.E. Canada Inc., Peter Jahnke, Dieter Jahnke and 1690575 Ontario Limited (Defendants)

COUNSEL: P. Dobbie, for the plaintiff R. Taylor, for the defendants

BEFORE: Justice A. K. Mitchell

HEARD: April 26, 2017

Endorsement

Overview

[1] The plaintiff brings this action claiming against the defendant, O.E. Canada Inc. (“OE”), for wrongful termination from his employment, including moral and aggravated damages (“wrongful dismissal claim”).

[2] In addition, the plaintiff claims against all of the defendants for damages and declaratory relief arising from their oppressive conduct and breach of fiduciary duty (“oppression and breach of fiduciary duty claims”).

[3] The statement of claim in this action was issued on June 29, 2012 and subsequently amended on July 5, 2013. Discoveries have not been conducted.

[4] The defendants bring this motion seeking the following relief:

(a) partial summary judgment declaring that the option agreement (“OA”) and the option amending agreement (“OAA”) are valid and enforceable and dismissing the oppression and breach of fiduciary duty claims made in paragraphs 2(a)-(e), 2(g)-(k) and 2(m) of the Amended Statement of Claim;

(b) in the alternative, an order striking paragraphs 2(a)-(j) and 2(m), 15 and 27-36 from the Amended Statement of Claim as disclosing no cause of action; and

(c) in the further alternative, an order directing a trial of an issue as to the validity of:

(i) the OA; and (ii) the OAA.

(d) an order for divided discovery by postponing the plaintiff’s motion dated October 28, 2015 seeking production of large quantities of financial information from the corporate defendant and non-party, 1537638 Ontario Limited (“153”), until the validity of the OA and the OAA has been established.

Background

The Parties

[5] The plaintiff was employed by OE from February 2, 2009 to March 29, 2012 as VP of Sales.

[6] OE is a privately-held Ontario business corporation established by the defendant, Dieter Jahnke (“Dieter”), in 2003. OE carries on business selling office equipment to businesses in and around Southwestern Ontario. OE is a dealer of Toshiba products and its head office is located in London, Ontario with its sales office located in Waterloo, Ontario.

[7] Dieter is the founder and president of OE. He is 74 years of age.

[8] The defendant, 1690575 Ontario Limited (“169”) is a private family holding and investment company owned by Dieter and his spouse. From time to time it loans funds to related family businesses, including OE.

[9] The defendant, Peter Jahnke (“Peter”) is Dieter’s son. Peter is the Executive VP of OE.

[10] 153 is a private company incorporated in 2002 and owned by Dieter’s spouse. OE sells office equipment to 153 who in turn leases this equipment to OE’s customers.

The Plaintiff’s Employment with OE

[11] Before being hired by OE, the plaintiff had known Dieter for several years. They met in approximately 1981 when Dieter was a VP of OE Inc., an unrelated company in Montréal, and the plaintiff was a service technician.

[12] Dieter left OE Inc. and later established OE in London, Ontario in 2003. The plaintiff had also left OE Inc. going to work for Ikon and then Ricoh Canada where he was vice president of Eastern Canada, a position he held for 12 years.

[13] In 2008 the plaintiff advised Dieter he was not satisfied with his progress and compensation at Ricoh. Dieter offered his help and recommended to a Ricoh dealer in Montréal that it hire the plaintiff. Dieter also advised the plaintiff to ask for equity in the company as part of his compensation package. This company was not prepared to offer the plaintiff equity and he did not further pursue this opportunity.

[14] The plaintiff asked Dieter if there was a position for him available at OE. Discussions between Dieter and the plaintiff about possible employment began in December 2008 and resulted in Dieter providing the plaintiff with an employment agreement on January 13, 2009. Dieter offered the plaintiff equity in OE (which the plaintiff had not requested) along with profit-sharing. Two days later on January 15, 2009, the plaintiff signed and returned the employment agreement to OE. The employment agreement provides, in part:

(a) salary of $150,000 per annum guaranteed for three years;

(b) 5% of equity in OE and 5% profit sharing at starting date, pro-rated to fiscal year end of June;

(c) on the third year anniversary, an additional 1% of equity per annum and 1% of profit sharing, for a total of an additional 5% of equity and 5% of profit sharing;

(d) the total equity and profit-sharing to be distributed would equal to 10%;

(e) moving expenses from Montréal to be reimbursed by OE;

(f) accommodations in London during the transition period to be supplied by and paid for by OE; and

(g) two trips per month to/from Montréal over the transition period to be reimbursed by OE.

[15] The employment agreement contemplated execution of subsequent agreements so as to implement the parties’ intentions. The employment agreement provides:

“[t]his letter will serve to outline the terms and conditions of the offer with further details to follow as required” . (emphasis added)

[16] As contemplated by the employment agreement, the OA effective January 15, 2009 was signed by the parties (OE and the plaintiff) on January 28, 2010. On that same date, the plaintiff paid the sum of $5.50 in exchange for 5.5 Class B common shares in the capital of OE.

[17] On or about January 11, 2011 the plaintiff was provided with the OAA which contained a provision defining “equity” as the net book value of OE to be determined by OE’s accountant or auditor. The OAA further provided that Peter was required to purchase the plaintiff’s shares if he tendered them for sale. Peter could also demand to acquire the shares of the plaintiff.

[18] The plaintiff tendered his resignation in the fall of 2011; however, the parties renegotiated terms of the plaintiff’s continued employment and agreed the balance of the plaintiff’s equity share in OE would vest immediately if he assisted with positioning the company for sale.

[19] On March 29, 2012, OE Canada terminated the plaintiff’s employment. At the time of his termination, he held 5.5 Class B Common Shares in OE.

[20] Pursuant to his rights under the employment agreement and the OA, as amended by the OAA the plaintiff presently holds 5.5 Class B common shares of OE. Peter holds the balance of the outstanding and issued Class B common shares of OE.

[21] Pursuant to the terms of the OA, as amended by the OAA, all Class B Common Shares are valued using Net Book Value of the company.

Analysis

[22] The defendants rely on rules 20 and 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to support the requested relief.

Test Under Rule 21

[23] Pursuant to rule 21.01(1) a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action. On such a motion, no evidence is admissible.

Test for Summary Judgment – Rule 20

[24] Pursuant to rule 20.01(3) a defendant to an action may move for summary judgment dismissing all or part of the claim against it. If the court is satisfied there is no genuine issue requiring a trial, the court must grant summary judgment.

[25] Hryniak v. Mauldin, 2014 SCC 7 is the leading case. Recognizing that affordable and timely access to the civil justice system is paramount, the Supreme Court of Canada has interpreted rule 20.03 to require motions judges to utilize their enhanced powers under rule 20 to weigh evidence, evaluate credibility and draw reasonable inferences, where appropriate, so as to expand the cases capable of being disposed of summarily, in whole or in part, without the need for costly and protracted litigation.

[26] As has always been the case, it is presumed that the parties have placed before the court all relevant and necessary evidence to support their respective positions on the motion. That is, it is presumed the plaintiff has put his “best foot forward”. While discoveries have not been conducted, cross-examinations on affidavits have taken place and all transcripts are before the court. It is assumed for purposes of this motion that no better evidence exists upon which to decide the issues.

[27] The plaintiff argues that the issues cannot be resolved through a summary process as viva voce evidence is required to resolve issues of credibility. The only credibility issue which arises is with respect to the internal inconsistencies in the plaintiff’s own evidence. These internal inconsistencies between the plaintiff’s evidence contained in his affidavits filed in response to the motion and the Amended Statement of Claim, and his evidence given on cross-examination, undermine only the plaintiff’s credibility. The court is not required to choose between two competing versions of events as presented by the parties. In fact, the evidence between the plaintiff, on the one hand, and Dieter, Mr. Griffin and Peter on the other is remarkably consistent.

[28] The main issue for determination is whether the OA and OAA are valid and enforceable. The defendants argue that should I find them to be, the oppression claims cannot stand and partial summary judgment dismissing the oppression claims must be granted. No matter the outcome of this motion, the plaintiff’s wrongful dismissal claim is unaffected and can proceed.

Are the OA and the OAA valid and enforceable?

[29] The plaintiff does not challenge the validity of the employment agreement and admits that he is bound by its terms and, moreover, that those terms induced him to leave his employment with Ricoh and join OE.

[30] At first blush, it would appear the plaintiff is taking the position neither the OA nor the OAA is enforceable; however, a closer reading of the Amended Statement of Claim reveals the plaintiff only takes issue with the enforceability of the OAA. It is in this agreement where it is expressly stated that the fair value of the Class B common shares of OE is equal to the net book value of the company.

[31] In paragraph 15 of the Amended Statement of Claim, the plaintiff pleads only that the OAA is unenforceable because:

(a) the OAA was not explained to the plaintiff; and

(b) the plaintiff was not advised to obtain independent legal advice before signing the OAA.

[32] An oblique reference to the defendants’ failure to provide fresh consideration for the OA as evidence of oppressive conduct is made in both paragraph 15 and subparagraph 27a. of the Amended Statement of Claim; however, it is stated in the preamble to paragraph 27 that the plaintiff is relying only on the alleged oppressive conduct engaged in by the defendants post-January 2011 . (emphasis added). The OA was presented to the plaintiff and signed by him in 2010 effective January 15, 2009. Moreover, the plaintiff pleads the terms of the OA are consistent with the terms of the employment agreement in that neither agreement “limits or defines the value of the Class B Common Shares”.

[33] Turning to the evidence of the grounds pleaded in support of the plaintiff’s position that the OA (to a lesser extent if at all) and the OAA are unenforceable.

(a) Was the OA explained to the plaintiff?

[34] All of the agreements were drafted in English. There is no evidence to suggest the plaintiff is unable to read and understand the English language. There is no suggestion the plaintiff was coerced, forced or induced by threats to execute the OAA. To the contrary, the plaintiff’s own evidence is that before signing:

• the OA and the OAA were read paragraph by paragraph to him by Philip Griffin, OE’s external accountant;
• The effect of the agreements was explained to the plaintiff;
• Mr. Griffin answered questions about the agreements asked by the plaintiff to the plaintiff’s satisfaction; and
• The plaintiff was not required to sign the agreement immediately and in the case of the OAA had the agreement in his possession for 20 days before the agreement was signed.

[35] I find the plaintiff did not require the document explained to him. The evidence supports a finding that he is an experienced, business-savvy individual with extensive experience in negotiating contracts with employees and suppliers as part of his prior employment. Personally, he has negotiated the sale and purchase of real estate. Moreover, he had retained a lawyer to review and negotiate the terms of a severance package.

[36] There is no duty on a party to explain the provisions of the agreement to the other party where the other party is provided with the opportunity to read the agreement and the potentially offending terms of the agreement are clearly set forth in the document. In those circumstances, a defence of non est factum is not available to the plaintiff. Golf Leaf Garden Products Ltd. v. Pioneer Flowers Farms Ltd., 2015 ONCA 365. Here, not only were the agreements explained and read to the plaintiff, he asked questions of Mr. Griffin regarding their respective provisions and was satisfied with the answers provided.

[37] At paragraph 16 of his Affidavit sworn August 25, 2015, the plaintiff states:

As had been the case when the Option Agreement was signed, Mr. Griffin asked me if I wanted to obtain independent legal advice. Mr. Griffin told me that this Amending Agreement was taking the place of a Unanimous Shareholder Agreement. I was not told that the Amending Agreement was changing the basis of valuation of my equity in OE Canada. I was not told that if I signed the Amending Agreement my shares would decrease in value.

[38] This statement presents with a number of problems. There is no evidence that the OAA changes the basis of valuation of the Class B shares. The mechanism for valuing the plaintiff’s shares was not provided in either the employment agreement or the OA. The first time valuation of the shares is addressed formally is in the OAA. The plaintiff admits that at all times he understood the concepts of “fair market value” and “net book value.” Mr. Griffin read the provisions of the OAA to him, including paragraph 2b, which provides that “Fair Value of the Class B Common Shares” is equal to the net book value of the Company. Despite his understanding of the concept of net book value and his being expressly advised of the method of valuation of the Class B shares, he did not protest the method of valuation nor attempt to negotiate the terms of the OAA. Instead, the plaintiff declined the offers of independent legal advice, did not question either Mr. Griffin or Dieter regarding the terms of the OAA and proceeded to sign the agreement as presented.

[39] There is no evidence to suggest that the shares declined in value. Instead the evidence shows that the value of a single Class B common share in OE, for which the plaintiff paid $1, increased from $2905.40 as at June 30, 2010 to $5201.40 as at June 30, 2011.

[40] I find it curious that at no point during the employment relationship and in particular the period during which the agreements were signed, did the plaintiff request that the shares be valued at fair market value, enquire about the method by which his shares would be valued, or protest the net book value of the shares calculated by Mr. Griffin in June of 2010 and 2011. It was only once he was terminated that the plaintiff questioned the enforceability of the agreements he signed and the method for valuing his shares. His complaints and concerns do not have the ring of truth and are not supported by the evidence.

(b) Was the plaintiff given the opportunity to obtain ILA?

[41] In paragraph 15 of the Amended Statement of Claim, the plaintiff alleges that the OAA was not explained to him nor was he advised to obtain independent legal advice by any one of the defendants.

[42] Despite the defences raised in paragraph 15 of the Amended Statement of Claim, the plaintiff admitted that he was in fact offered the opportunity to obtain independent legal advice by Mr. Griffin before signing the OA and the OAA and declined the opportunity claiming “he didn’t see a need”. In addition, the plaintiff admitted Dieter made a similar offer on January 30, 2011 which was also declined because “[the plaintiff] was comfortable with everything in [the OAA]”.

[43] Independent legal advice is not a precondition to the enforceability of a contract. Rather, independent legal advice reduces the risk that a party to a contract will later claim that he or she did not understand the terms of the contract and his or her obligations and entitlements. A failure to ensure a party obtains independent legal advice before signing a contract does not of itself create a defence to the contract’s enforceability.

[44] These circumstances are far different than those facing the court in 1560032 Ontario Ltd. v. Arcuri, a case upon which the plaintiff relies. In Arcuri the court held that the plaintiff knew or ought to have known that the party signing would not have read the fine print buried in the pre-printed form, and the form contained provisions of a type not within the reasonable expectations of the parties signing.

[45] Here, I am hard-pressed to come up with what more the defendants could or should have done to protect the plaintiff from his own reckless conduct. The plaintiff has only himself to blame if he did not understand or appreciate the significance of the contents of the OAA before signing this document.

(c) Was consideration given for the OA and OAA?

[46] Both the OA and the OAA contain the following provision:

NOW THEREFORE THIS AGREEMENT WITNESSES that, in consideration of the mutual covenants of the parties and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

[47] Mutual promises contained in an agreement afford good and valid consideration for execution of the agreement Downey v. Ecore International Inc., 2012 ONCA 480. By signing the agreements, the plaintiff acknowledged good consideration was received. The OAA was stated to be supplemental to and to be read in conjunction with and deemed to be part of the OA with all terms and conditions of the OA confirmed and ratified in all respects. The OA was merely the flesh on the bones of the employment agreement, the enforceability of which is not in dispute.

[48] No further consideration beyond the stated mutual consideration was needed. The OAA was merely collateral and ancillary to the employment agreement and the OA. This argument has no merit.

[49] I find the OA and OAA are valid and enforceable against the plaintiff in accordance with their respective terms.

Additional causes of action not pleaded

[50] In his affidavit sworn October 13, 2015, the plaintiff asserts (presumably in the alternative) that if found to be enforceable, the OAA was superseded by a subsequent oral agreement of the parties reached in the fall of 2011. The plaintiff submits that Dieter promised him 10% of the proceeds of OE once sold if he stayed on. In its responding factum, the plaintiff raises (for the first time) there was a novation of the OAA when the plaintiff tendered his resignation. In his supplementary responding factum, the plaintiff relies on this new oral agreement as superseding and replacing the OA and OAA.

[51] Novation is not pleaded in the Amended Statement of Claim. Reference is made only to the amendment to timing of the vesting of the Shares. No reference is made to the terms of a new oral agreement whereby the plaintiff was promised 10% of the proceeds of sale of the Company. In responding to this motion, the plaintiff is limited to the causes of action pleaded in the Amended Statement of Claim. The plaintiff cannot enhance nor add to the causes of action contained in his pleading. I must consider only the pleadings as they currently stand. As an aside, any request to further amend the Amended Statement of Claim to plead additional causes of action would likely be denied on the basis any such new claims would be statute barred.

[52] Therefore, whether the evidence supports a claim of novation should not and will not be considered.

Are the plaintiff’s oppression claims properly pleaded and/or supported by the evidence?

[53] Both rule 20 and rule 21 apply to the assessment of the oppression claims.

[54] Paragraphs 27 – 36 particularize the plaintiff’s oppression claims. In particular, the plaintiff pleads that the defendants have engaged in the following oppressive conduct:

(a) requiring the plaintiff to sign the OA and the OAA when they knew there was no fresh consideration for same;

(b) terminating the plaintiff’s employment without cause, refusing to provide him with pay in lieu of notice at common law, and retaining his equity in OE;

(c) attempting to exercise the OAA knowing it to be unenforceable;

(d) the individual defendants, singly or together, for themselves or OE in its name entered into an agreement or agreements with 153, a company in which Dieter’s spouse had an interest, which caused directly or indirectly a benefit to it and a detriment to OE on the basis of the application of finance charges to the favour of 153 in excess of a reasonable or commercial rate during the period of the plaintiff’s employment;

(e) including a non-arm’s length loan on the balance sheet of OE which loan has been repaid;

(f) refusing to provide any access to the books, records and financial statements of OE to which the plaintiff is entitled;

(g) failing to maintain proper books and records regarding the business of OE;

(h) deliberately and systemically excluding the plaintiff from all business decisions involving OE in complete absence of any consideration to the plaintiff as a shareholder; and

(i) acting in a manner which has placed the financial interests of the plaintiff in jeopardy.

[55] At paragraph 28 of the Amended Statement of Claim the plaintiff pleads that the alleged oppressive conduct of the defendants has resulted in substantially reduced profits available for distribution to the plaintiff.

[56] At the outset, it should be noted that the oppression claims are not properly pleaded. The claims are made against the defendants, generally. The oppressive conduct is not attributed to any specific defendant. Pursuant to my authority under rule 21, I find this is fatal. As was explained by Feldman J.A. in Anger v. Berkshire Investment Group Inc.:

[10] Budd v. Gentra Inc. was an oppression remedy case where the plaintiffs’ claims were against the corporation and its directors and officers under s. 241 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44. The court found that the Statement of Claim failed to identify any acts or omissions of specific defendant directors and officers which could link them to the alleged oppressive conduct of the corporation. The claims were struck against him for that failure and not because there could not have been a cause of action at law for oppression.

[57] In its pleading, the plaintiff alleges that OE has suffered damages as a result of the oppressive conduct itemized in para. 27 of the Amended Statement of Claim which has led to reduced profitability and less profits available to distribute to the plaintiff. Save for the alleged oppressive conduct described in subparagraphs 27(d), (e), (g) and (i), the balance of the alleged oppressive conduct relates to harm caused to the plaintiff directly and is unrelated to any reduction in OE’s profitability.

[58] With respect to the alleged oppressive conduct causing harm to OE, the plaintiff has failed to seek leave to bring a derivative action under the Ontario Business Corporations Act (“OBCA”). That failure is fatal to the claim for oppression remedies for those alleged wrongs, and is also fatal to the claim relating to alleged breaches of fiduciary duties. As recently stated by Sharpe J.A. in Harris v. Leikin Group Inc., 2014 ONCA 479, at para. 73:

Moreover, a shareholder of a corporation – even a controlling shareholder or the sole shareholder – does not have a personal cause of action for a wrong done to the corporation: Meditrust Healthcare Inc. v. Shoppers Drug Mart, 61 O.R. (3d) 786 (Ont. C.A.), at para. 12. A shareholder may bring a derivative action on behalf of the corporation for a loss suffered by the corporation, but the appellants did not seek leave to commence a derivative action, as required by the Business Corporations Act, R.S.O. 1990, Ch. B.16, s. 246(1), to claim that the non- selling shareholders had diverted a corporate opportunity for their personal benefit. Indeed they did the reverse by asserting a claim on their own behalf against the corporation . [Emphasis by Sharpe J.A.]

[59] Furthermore, an oppression remedy under the OBCA is inappropriate relief for an alleged failure to provide financial statements. Dziver v. Marostica-Wing Developments Ltd..

[60] Leaving aside these technical pleading concerns, no evidence is before the court to support a finding that any of the alleged oppressive conduct against OE’s interests caused a substantial reduction in its profits as alleged. With regards to the allegation that 153 enters into leases with customers of OE with exorbitant fees payable by OE to 153 for such services, there is no evidence that this business arrangement has reduced the profits of OE. Moreover, it does not lie in the mouth of the plaintiff to complain because this was the business arrangement and relationship between OE and 153 before the plaintiff was hired and given an equity stake in the company.

Did the plaintiff properly plead a breach of fiduciary duty?

[61] My assessment of the plaintiff’s claims of breach of fiduciary duty involves the application of rule 21.

[62] The plaintiff pleads in the Amended Statement of Claim that the defendants owed to him a fiduciary duty and by their conduct breached this duty. The plaintiff’s assertion as to the existence of a fiduciary duty is a conclusion of law. Rule 25.06(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires that the plaintiff plead the material facts supporting that conclusion of law:

A party may raise any point of law in a pleading, but conclusions of law may be pleaded only if the material facts supporting them are pleaded.

[63] As noted recently in Garneau v. Industrial Alliance Insurance and Financial Services Inc., 2015 ONCA 234 by Lauwers J.A.:

The test for establishing an ad hoc fiduciary duty has been modified since Frame v. Smith. This duty will only be found where the alleged fiduciary has provided an express or implied undertaking to act in the best interests of the other party: Perez v. Galambos, 2009 SCC 48, [2009] 2 S.C.R. 247 (S.C.C.), at para. 55; Elder Advocates of Alberta Society v. Alberta, 2011 SCC 24, [2011] 2 S.C.R. 261 (S.C.C.), at para. 30.

[64] The facts to support a finding of the existence of a fiduciary relationship between the defendants and the plaintiff have not been pleaded including an undertaking by Dieter to act in the plaintiff’s best interests. There is no existing category of fiduciary duty arising on the basis only that the plaintiff is a shareholder and purported creditor of OE. Without more, the claim based on alleged breach of fiduciary duty cannot be sustained.

[65] Although not necessary to consider because the cause of action has not been properly pleaded, I also find that the evidence does not support a finding of the existence of a fiduciary duty. The mere fact the plaintiff and Dieter shared a close relationship akin to father-son does not transform the relationship to the level of fiduciary/beneficiary. The plaintiff was at no time vulnerable. There is no evidence of an imbalance of power. The plaintiff may very well have trusted Dieter and Peter to treat him fairly. I suspect Dieter and Peter shared the same expectation with regards to the plaintiff’s treatment of them. The relationship never ventured into the realm of fiduciary/beneficiary. There is no evidence to support a finding of an ad hoc fiduciary relationship let alone a breach of that fiduciary duty.

[66] The plaintiff relies on the decision in Waxman v. Waxman as standing for the proposition that the oppression remedy is available to set aside the OAA and further that arm’s length transactions can result in a finding of the existence of a fiduciary duty. Waxman involved two brothers who had founded and built a successful company over many years. The trial judge found the plaintiff dependent upon the defendant and that he had complete trust in him and relied on him to protect his interests. In finding that a fiduciary relationship existed, the court held the defendant had fraudulently misrepresented matters to the plaintiff which induced him to enter into the share sale transaction which was extremely detrimental to his interests. The court set aside the transaction.

[67] Waxman is readily distinguishable. The manner in which the plaintiff was treated by his brother was egregious and deserving of the heavy hand of the law. As earlier noted in these reasons, there is no evidence to suggest the existence of a relationship of trust and confidence between Dieter and the plaintiff. At all times they transacted at arms’ length. The fiduciary principle cannot be extended in these circumstances.

[68] As an aside, I note there is ample evidence of the defendants treating the plaintiff fairly. OE complied with the terms of the employment agreement and additional benefits were also bestowed on the plaintiff. For example, the plaintiff enjoyed membership at a private golf course and a private club and leasing a Lexus motor vehicle, all paid for by OE. In addition, he received a $300,000 interest-free loan to assist in the purchase of a new house in London which has been repaid, a $15,000 loan which was forgiven and a $50,000 loan remaining unpaid. Upon moving to London, he was reimbursed his moving expenses and apartment rental totalling $24,864.49. The plaintiff’s spouse and son were also given employment with OE.

[69] An equity stake in OE, a privately-held company, was merely an incident of the plaintiff’s compensation package with OE. It did not have the effect of making any of the defendants a fiduciary owing a duty to the plaintiff.

Conclusion

[70] I am satisfied that this is an appropriate case for partial summary judgment. I find a trial is not required to resolve the issues relating to the oppression and breach of fiduciary duty claims advanced by the plaintiff. This action is in its early stages. Summarily disposing of the oppression and breach of fiduciary duty claims will significantly reduce the length and scope of discoveries, the extent of documentary disclosure, and, ultimately, the length of trial.

Disposition

[71] Partial summary judgment is granted:

(a) Declaring the option agreement made as of January 15, 2009 and the option amending agreement made as of January 31, 2011 to be valid and enforceable and binding on the plaintiff in accordance with their respective terms;

(b) Dismissing the oppression and breach of fiduciary claims found at paragraphs 2(a), 2(c)-(e), 2(g)-(k) and 2(m) of the Amended Statement of Claim; and

(c) Striking paragraphs 15 and 27-36 of the Amended Statement of Claim as disclosing no cause of action.

Costs

[72] Because my decision was reserved, the parties were unable to make any submissions regarding costs. If the parties are unable to reach an agreement on costs of the motion:

(d) The defendants may serve and file written cost submissions, not to exceed four pages in length (exclusive of any bill of costs, case law, time dockets or costs outline), within 14 days;

(e) The plaintiff may serve and file responding written cost submissions also not to exceed four pages in length within 14 days thereafter; and

(f) within 7 days thereafter, reply cost submissions not exceeding two pages in length may be filed.

“Justice A. K. Mitchell” Justice A. K. Mitchell Date: June 8, 2017