CITATION: Growthworks Commercialization Fund Ltd. v. Growthworks WV Management Ltd., 2017 ONSC 5009

COURT FILE NOS.: CV-17-11673-00CL, CV-17-11684-00CL DATE: 20170823

SUPERIOR COURT OF JUSTICE – Ontario

(COMMERCIAL LIST)

RE: IN THE MATTER OF AN APPLICATION under Rules 14.05(3)(d),(g), and (h) of the Rules of Civil Procedure

GROWTHWORKS COMMERCIALIZATION FUND LTD., Applicant (Respondent by counter-application)

A N D:

GROWTHWORKS WV MANAGEMENT LTD., Respondent (Applicant by counter-application)

AND RE: GROWTHWORKS WV MANAGEMENT LTD.

A N D:

GROWTHWORKS COMMERCIALIZATION FUND LTD.

BEFORE: MESBUR J.

COUNSEL: Geoff R. Hall and Emily M. MacKinnon, for the Applicant (Respondent by counter-application) Mel Solmon and Cameron Wetmore, for the Respondent (Applicant by counter-application)

HEARD: July 31, 2017

E N D O R S E M E N T

Introduction:

[1] GrowthWorks Commercialization Fund Ltd. (the Fund) is a labour-sponsored venture capital corporation, sponsored by the Canadian Federation of Labour. It is a Canadian corporation incorporated under the Canada Business Corporations Act. (CBCA)[^1]. The Fund’s shareholders are roughly 2,700 retail investors. The Fund has no employees. It outsourced all of its management functions to GrowthWorks WV Management Ltd. (the Former Manager).[^2] In early 2017 the Former Manager resigned as the Fund’s manager and paid itself roughly $1,449,620 on account of what is says the Fund owed it as outstanding and unpaid compensation. The Fund takes the position the Former Manager is not entitled to the money, apart from the sum of $11,600, and must repay the balance of $1,416,220 the Fund. The Fund obtained an interlocutory injunction against the Former Manager in order to freeze the funds pending the outcome of this application. The Fund also says not only should the Former Manager repay the money, but also should pay punitive damages, given the circumstances surrounding its taking the money.

[2] The Former Manager says pursuant to its Management Agreement with the Fund it was owed the money. The Fund says it was not. At issue on this application is whether the Former Manager is entitled to the money or must repay it to the Fund. This involves interpreting the Management Agreement the parties entered into when the Former Manager became the manager of the Fund, in the context of both the Fund’s articles of incorporation and the provisions of the CBCA.

Background:

[3] The Fund is incorporated under the CBCA. For the purposes of this application, the provisions of s. 42 of the CBCA are important. Section 42 reads:

42. A corporation shall not declare or pay a dividend if there are reasonable grounds for believing that

(a) the corporation is, or would after the payment be, unable to pay its liabilities as they become due; or

(b) the realizable value of the corporation’s assets would thereby be less than the aggregate of its liabilities and stated capital of all classes.

[4] The parties refer to this provision as the “balance sheet solvency test”, which the corporation is required to meet before it can declare or pay dividends.

[5] The Fund was initially what is called an “open-end mutual fund”. In order to be an open-end mutual fund a corporation must meet two criteria. First, it must be a distributing corporation that carries on only the business of investing the consideration it receives for the shares it issues. Second, all, or substantially all of those shares are redeemable on the demand of a shareholder.[^3] That type of fund is exempt from the provisions of s.42.

[6] The Fund met the criteria of an open-end mutual fund from 2005 when it first issued shares, until January of 2014 when it suffered what Mr. Lew, the Former Manager’s President and CEO, describes in his affidavit as a liquidity crisis. Since at least August 15, 2016, the Fund no longer met the necessary criteria to be an open-end mutual fund, and became subject to the provisions of s.42.

[7] When the Former Manager became the Fund’s Manager, the parties entered into a Management Agreement to govern the business relationship between them. The Management Agreement sets out the rights and responsibilities of both the Fund and the Former Manager. Article 3 delineates the Former Manager’s management services duties and administration services duties while Article 4 sets out the Fund’s duties. These include, in Article 4.1(a) a requirement that the Fund’s duties are “subject at all times to any limitation or prohibition to which the fund is subject at law…”

[8] Article 5 deals with the Former Manager’s compensation, including the calculation of both the management fee and administration fees. The management fees were made up of both a Management Fee and Administration Fees. Both are calculated as percentages of the Average Net Asset Value of the Fund. There is also an Additional Administration Fee, calculated as a percentage of the original purchase price of “Series Shares”, which are defined as “each series of Class A shares in the capital of the Fund.”[^4]

[9] The Former Manager’s compensation also included compensation based on the Fund’s investment performance, payable as dividends on the Former Manager’s 100 non-voting Class C shares of the Fund. The Former Manager is the only holder of the Class C shares. They were created specifically for the Former Manager. The parties refer to the dividends paid on the Class C shares as Incentive Participation Amounts (IPA) Compensation or IPA Dividends. The Class C Shares’ Dividends are described in Part 4.5 of Schedule I of the Fund’s Restated Articles of Incorporation. This Part reads:

4.5 Dividends. The holder of the Class C shares shall be entitled to receive, the directors shall declare where permitted by the Act and the Corporation shall pay, cumulative dividends on the Class C shares payable as of the end of each fiscal quarter on the following terms and conditions:

a) the dividends shall be equal to 20% of the Realized Gains and Income on each Venture Investment;

b) despite (a) the holder of the Class C shares: shall be entitled to a dividend attributable to a particular Venture Investment only if at the end of the fiscal quarter… [various conditions are set out in (i) to (iii)] …

d) if a dividend payable is not paid for any reason, the dividend shall be cumulative and continue to accrue until actually paid;

e) the payment of any dividends hereunder shall be in preference and priority to the payments of dividends of any Class A or Class B shares of the Corporation, and

f) If any dividend calculated and paid as a dividend hereunder during a fiscal year of the Corporation differs from the amount therefore subsequently confirmed at the time of the Corporation’s audit for that year, such dividend amount(s) shall be adjusted, retroactively…

[10] Part 4.7 of the Fund’s Restated Articles of Incorporation deals with the Manager’s entitlements if the Manager is terminated. It says:

4.7 Manager Termination. Upon termination of the holder of the Class C shares as a manager of the Corporation, the holder of the Class C shares shall be entitled to receive an amount equal to the sum of

a) all declared but unpaid dividends on the Class c shares, and

b) dividends in an amount equal to the cumulative dividends to which the holder of the Class C shares would have been entitled pursuant to Section 4.5, whether or not dividends were actually declared by the directors, assuming that all Venture Investments had been disposed of as of the effective date of such termination at the estimated fair value of such investments calculated in accordance with the Corporation’s usual valuation policies.

Any amount in (a) above shall be paid promptly. With respect to the amount in (b) above, the holder of the Class C shares shall be entitled to receive as dividends the applicable portion of that amount so calculated in respect of any particular Venture Investment existing on the date of termination as and when the particular Venture Investment is disposed of.

[11] Since Part 4.7 deals with termination of the parties’ relationship it is important to consider the circumstances under which that can occur. Both the term of the parties’ relationship, or its termination are governed by Article 8 of the Management Agreement. It sets out the term of the management agreement, the circumstances under which the Fund could terminate the agreement earlier as well as circumstances under which the Former Manager was entitled to terminate the agreement. Earlier termination by the Fund was governed by article 8.2, while earlier termination by the Former Manager was governed by article 8.3. Here, the Former Manager asserted it was terminating the relationship, relying on article 8.3 of the Management Agreement. That provision reads:

8.3 Earlier Termination by the Manager – The Manager may terminate this Agreement in respect of the Fund (subject to compliance with any applicable requirements of corporate or securities laws, regulations or policies as follows:

a) immediately, upon the bankruptcy or insolvency of the Fund, the passing of a resolution providing for the winding-up or dissolution of the Fund or the issuance of any order for the dissolution of the Fund or the making of a general assignment for the benefit of the Fund’s creditors;

b) upon receiving the agreement of the Fund in writing to such termination;

c) upon a material breach of this Agreement by the Fund where written notice of such breach is given to the Fund by the Manager and, if such breach is capable of being remedied, the Fund has not remedied the breach within 60 days after such notice is received by the fund; and

(d) upon the Fund changing its fundamental investment objectives or policies.

[12] On January 13, 2017 the Former Manager wrote to the fund, stating it was terminating the Management Agreement pursuant to article 8.3. It did not specify the specific provision of article 8.3 it relied on. On January 13, before it delivered its letter to the Fund, (or concurrently with doing so) the Former Manager paid itself $1,461,220 by redeeming a GIC in the Fund’s name and then ultimately effecting the payment to itself. The Former Manager takes the position it was entitled to this payment pursuant to Section 4.7 of the Funds Articles. The Former Manager wrote to the Fund a second time on January 13, 2017 saying, among other things:

We confirm that, concurrently with terminating the Management Agreement and our termination as manager, we have paid on behalf of the fund all amounts owing to us under the Management Agreement and the share rights for the Class C shares we hold.

[13] The Fund’s counsel replied. The Fund’s initial response to these letters was first, to request particulars of which provision of article 8.3 the Former Manager relied on to support its termination of the relationship. Second, the Fund demanded particulars of the amount the Former Manager had paid itself and details of how payment had been effected.

[14] The Former Manager responded the following day in a letter to the Fund’s Board of Directors. The letter does not specifically address the issues raised in the Fund’s lawyer’s letter. Instead, the letter disclosed that the Former Manager had opened a separate bank account to receive a reimbursement the Fund had received from a successful tax appeal. This separate bank account was in a different bank than the bank at which the Fund normally banked. The Former Manager suggested that since the Ministry did not know of this new bank account, its creation “would afford a level of protection from future unilateral action taken by the Ministry”.[^5]

[15] The Fund’s lawyers responded on January 20, 2017. They demanded the Former Manager remove itself as a signing authority on any of the Fund’s bank accounts. Again, the Former Manager responded not to the Fund’s lawyers, but rather to the Fund’s Board. The letter confirmed steps would be taken to change signatures. It also suggested that the Former Manager’s entitlement to the money it had taken was clear from the wording of Article 4.7 of the Funds Articles.

[16] The Fund ultimately agreed to the Former Manager’s termination of the Management Agreement, pursuant to article 8.3(b). The Fund did so in its counsel’s letter of January 23, 2017. In the same letter, the Fund’s lawyer continued to press for the information it had initially requested concerning details of the Fund’s accounts and transactions. At the same time, the Fund’s lawyer advised that the Fund intended to bring an urgent application for return of the money.

[17] Two days later, the Fund commenced this application. In it, it sought a declaration that the Former Manager’s payment of the $1,449,620 to itself was unlawful and illegitimate, and an order requiring the Former Manager to repay the money to the Fund. In addition, the Fund sought injunctive relief and punitive damages.

[18] It was only after the Fund delivered its application that it learned how the Former Manager had paid itself the money. The Former Manager had opened an account for the Fund with the Bank of Montreal in June of 2016. This is the bank account the Former Manager referred to as affording the Fund “a level of protection from future unilateral action taken by the Ministry”. The Former Manager redeemed a GIC in the name of the Fund on January 13, 2017, deposited the proceeds into the Bank of Montreal account and immediately paid $1,461,220 from the Bank of Montreal account to GrowthWorks Capital Limited. This payee, of course, is not the Former Manager itself, but rather, an affiliated company.

[19] Initially, the parties consented to an order from Hainey J on January 27, 2017, on a without prejudice basis. That order required the Former Manager to preserve the money pending the return of the Fund’s motion for an interlocutory injunction. The order set a timetable for that motion. It also contemplated a counter-application from the Former Manager. The Former Manager commenced its application on January 31, 2017. In it, the Former Manager sought a declaration that it was entitled to the $1,449,620, together with some additional fees.

[20] The Fund’s motion for an interlocutory injunction came on before Myers J on February 8, 2017. He granted the injunction, extending the order of Hainey J until the final resolution of the application. Myers J held:

I am satisfied that there is a strong prima facie case that the Fund’s claim will succeed. The IPA was intentionally set up as dividends. The initial documentation and AIF’s refer to the solvency test applying. It is not open to the Manager to take equity for 10 years but then claim that the funds are due to it as debt. Moreover, the termination fee does not catch the undeclared dividends because they could not be paid under para. 4.5. The words ‘whether or not dividends were actually declared’ in paragraphs 4.6 and 4.7 prevent the Fund from profiting merely by failing to declare dividends if they are entitled to do so. The words ‘would have been entitled pursuant to section 4.5’ in paragraphs 4.6 and 4.7 make clear that there is no obligation to pay where the Manager was not entitled to dividends under paragraph 4.5, ie where the Act precludes dividends.

The redemption amount in paragraph 4.8 suffers the same infirmity. With no amount payable under 4.5, 4.6 and 4.7 there is no fee (if it is a separate fee).

I am satisfied that there is a proven and real risk of dissipation of the funds in issue absent this relief. The Manager is prepared to open a secret bank account to try to avoid a governmental seizure … and the Manager’s aggressive self-help action in this case show that it is prepared to act in less than above-board fashion where it perceives a benefit to doing so. It was still a fiduciary when it helped itself to the Fund’s cash … Secrecy and unilateral acts are the hallmarks of a risk of dissipation ….

[21] The parties have now agreed the Former Manager became entitled to $11,600 in management fees on March 8, 2017. The Former Manager has also agreed to abandon its claim for $25,000 in transition fees. This leaves the issue of whether or not the Former Manager is entitled to retain the frozen funds or must repay them, net of its management fee of $11,600, to the Fund. Deciding this issues requires an analysis of the interplay between the provisions of the Management Agreement, the Fund’s Articles dealing with the Former Manager’s Class C shares, and the provisions of the CBCA.

Discussion:

[22] While the Fund was an open-end mutual fund, nothing prevented the Fund from declaring and paying dividends on the Class C shares. Thus, had the Fund still been an open-end mutual fund in January of 2017, on termination of the Former Manager as the Fund’s Manager, the Former Manager would have been entitled to receive IPA dividends pursuant to the Fund’s Articles, and the Fund would have been obliged to declare and pay the dividends.

[23] However, once the Fund ceased to be an open-end mutual fund, it could not, as a matter of law, declared any dividends unless it met the solvency test under s. 42 of the CBCA. I am satisfied that the Fund could not meet the solvency test in January of 2017, and thus would have been prohibited from declaring any dividends on the Class C shares.

[24] In this regard, the Minutes of the Board Meeting of the Fund of June 6, 2016 are instructive. The Minutes record the Board’s response to the Former Manager’s proposal “to revise certain terms of the present agreement between the Fund and the Manager.” The Minutes reflect the Former Manager had made a proposal in this regard in December of 2015 to which the Board responded as follows:

Ms. Hopkins [responding on behalf of the Board], noting the directors’ fiduciary duty to the Fund, stated that the Board’s fundamental concern was that the Manager’s proposal was an amendment to the present cost structure set out in the management contract and such an amendment would not improve the Fund’s financial performance. The Board could not see how in exercising its fiduciary duties to the Fund’s shareholders, it could agree to such an amendment. The Board…could not see a clear path to resolve the Manager’s concerns.

[25] The Minutes also record a Board member noting “the proposal was meant to resolve the economic issues for the Manager by increasing costs that would require shareholder approval" and asking “how the corporate statute would permit the declaration of a dividend given the existing uncertain liabilities of potential future audits by the Ontario Ministry of Finance.” The minutes go on to state; “With respect to the statutory tests to pay dividends, Mr. Lew [President and CEO of the Former Manager] noted that the Fund could be continued to British Columbia where the statutory dividend test did not include a stated capital aspect.”

[26] The Minutes go on to note: “One Board member stated that the projected cash flow of the Fund shows that after December 2016 the remaining assets of the Fund are of minimal value. In order to avoid continuing operational costs, he asked, should the Fund consider in 2017 a distressed sale of the few assets and obtain shareholder approval for a wind-up which would occur after paying out all Class A shareholder and Manager dividends… The Board agreed to continue examining potential options to address the matters raised at the meeting.”

[27] I do not know whether the Board did so or not. What the Minutes suggest, however, is that by December of 2016 the Fund would not meet the solvency test under s. 42. The Minutes also suggest the Former Manager was not only aware of this, but was actively suggesting means to avoid the necessity of the solvency test in order to be paid the IPA dividends.

[28] The Fund’s Board met again on September 26, 2016. One of the orders of business was consideration of a potential wind-up of the Fund. The Minutes reflect that “the Board agreed that it needed to consider a potential wind up in the next two months”. In the context of this discussion one Board member “asked about the termination fee payable to the Manager and suggested the Fund would need to be run until no value existed or would require the Manager to negotiate a settlement for any termination fee. The Board member acknowledged the IPA having been earned by the Manager and being due and payable, but needed to see a reduction in the termination fee or a settlement in kind.”

[29] The Former Manager now takes the position that the IPA dividends on its Class C shares are not really dividends at all, but rather debt. The Former Manager therefore says it was entitled simply to pay itself what it says it was owed as IPA compensation/debt, rather than as dividends. The Former Manager relies, in part, on the Minutes of the September 26, 2016 Board meeting to support its position, namely the reference to the IPA “having been earned…and being due and payable.” The Former Manager characterizes the IPA dividends as somehow being transformed into something else. As Mr. Lew reasons in his January 31, 2017 affidavit at paragraphs 21 and 22:

… IPA Compensation is intended to be paid out as a dividend, except in certain circumstances outlined below … payment of the IPA Compensation is not a contractually-discretionary matter like a traditional share dividend … if the IPA Conditions that trigger payment have been met…

While the intention of the Share Rights is that the IPA compensation will be payable as a dividend and received … in this tax efficient way, the Share Rights provide for two circumstances where the IPA Compensation becomes payable by the Fund not as dividends. Those circumstances are a) the occurrence of a Dissolution event (as defined by the Share Rights, which the Board had initiated but had not yet been completed), and b) termination of the M.A. [Management Agreement] (which all parties agree has happened at this time, although there is a 10 day disagreement about the date of that termination).

[30] There is a fundamental flaw in this reasoning. Nowhere in either the Management Agreement or the Restated Articles of Incorporation is there any suggestion of this “transformation” of dividends. The Former Manager is quite right that the IPA dividends must be paid if certain events triggering payment have been met. The Former Manager is also correct that termination of the Management Agreement triggers the IPA dividend. As Mr. Lew says, there is no question the Management Agreement was terminated either on January 13, 2017 when the Former Manager wrote to the Fund asserting termination, or on January 23, 2017 when the Fund’s counsel wrote the Former Manager, saying, among other things:

…the Fund has concluded that the Manager did not effectively terminate the Management Agreement.

Nevertheless, given the Manager’s apparent and persistent wish to terminate the Management Agreement, the Fund hereby agrees with the Manager’s termination pursuant to s.8.3(b) of the Management Agreement, effective today.

[31] Since the Management Agreement was clearly terminated at the latest on January 23, 2017, this leads to a discussion of the parties’ rights and obligations arising from its termination. As I have outlined above, Part 4 of the Fund’s Articles of Incorporation sets out the rights, privileges, restrictions and conditions attaching to the Former Manager’s Class C shares.

[32] Article 4.5 sets out the amount of dividends that shall be declared and paid. The Fund is required to declare and pay these dividends, “where permitted by the Act.” Article 4.7 sets out what the Former Manager is entitled to receive on manager termination. The Former Manager is entitled to receive “an amount equal to the sum of:

a) All declared but unpaid dividends on the Class C shares, and

b) Dividends in an amount equal to the cumulative dividends to which the holder of the Class C shares would have been entitled pursuant to Section 4.5 whether or not dividends were actually declared by the directors…

Any amount in (a) above shall be paid promptly. With respect to the amount in (b) above, the holder of the Class C shares shall be entitled to receive as dividends the applicable portion of that amount so calculated in respect of any particular Venture Investment existing on the date of termination as and when the particular Venture Investment is disposed of.

[33] Since there were no declared but unpaid dividends on the Class C shares, only Article 4.7(b) applies here. It entitles the Former Manager to receive an amount equal to the cumulative dividends it would have been entitled to under section 4.5 whether or not the dividends were actually declared. Article 4.5, of course, entitles the Former Manager to receive dividends in the amount calculated under that Article. It also requires the Fund to declare the dividends. There is, however, a restriction on the Fund declaring and paying the dividends on the Class C shares. It must do so, but “only where permitted by the Act”. The “Act” is defined in the Articles as the CBCA. Section 42 of the CBCA requires the Fund to meet the solvency test before declaring and paying dividends. The only circumstances under which the Fund did not have to meet the solvency test was during the period when it qualified as an open-end mutual fund. When I look at the totality of the evidence, it is clear the Fund could not meet the solvency test in January of 2017 when the Former Manager took the money. This is apparent from the Minutes of both the June and September, 2016 Board meetings, which set out the Funds solvency difficulties and its plan to wind up.

[34] The Former Manager had no entitlement to anything other than dividends. There is no ambiguity in any of the contracts or documents governing the parties’ relationship. Article 4.7(b) of the Articles dealing with termination, only entitles the Former Manager to receive the amount of money to which it is entitled as dividends. What this means, of course, is that the Former Manager’s IPA compensation, as a matter of contract, is to be paid as dividends, and not as something else. Dividends must be declared by the Board before they are paid. While the Article 4.5 requires the Fund to declare the dividends necessary to provide the IPA compensation, it may only do so where permitted by the Act. Here, the Fund was not permitted by s.42 of the Act to do so. Even if the Act permitted the Fund to declare the dividends, the Former Manager had no entitlement to take the money without dividends being first declared on its Class C shares. The Former Manager could have moved to compel the Fund to declare and pay the dividends. Had there been no prohibition on the Fund’s doing so, the Fund would have been compelled to declare and pay the dividends. However, unless and until that occurs, the payment to the Former Manager was unauthorized and illegitimate, and must be repaid to the Fund. Thus, an order must issue to that effect.

[35] The Fund also seeks $50,000 in punitive damages. I must therefore decide if the Fund is entitled to them. Punitive damages are an extraordinary remedy. In Gerula v Flores[^6] the Court of Appeal helpfully reviewed the general principles that support an award of punitive damages.

[36] Punitive damages are not compensatory. They are designed to “indicate the displeasure of the court and to punish.”[^7] The purpose of punitive damages is to demonstrate to the offender that the law “will not tolerate conduct that wilfully disregards the rights of others [citations omitted]. Punitive damages do not focus on the injury to the plaintiff but on the disregard for his or her rights. It is the outrageous conduct of the defendant that is the focus… Punitive damages survive as a mark of public censure for egregious conduct.”[^8]

[37] In Gerula v Flores the Court of Appeal went on to quote a number of terms the courts have used to describe conduct that results in a punitive damages award. These include “harsh, vindictive, reprehensible and malicious” conduct. The conduct has also been described as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment”. The term “reprehensible” has been defined as “of a type to offend the ordinary standards of decent conduct in the community.”[^9]

[38] Has the Former Manager’s conduct been so egregious as to warrant this kind of censure? In my view, it has not. While it is true the Former Manager was in a fiduciary relationship with the Fund and resorted to self-help and took the money without the Fund’s knowledge or consent, the Former Manager relied on the statements of a member of the Fund’s Board, who acknowledged the IPA having been “earned and being due and payable.” At the same time as the Former Manager unilaterally took the money, it immediately advised the Fund it had done so, in its second letter of January 13, 2017. The Former Manager consented to the original interim-interim non-dissipation order. The money has not been disbursed, but has been preserved.

[39] While the Former Manager’s conduct bears some of the hallmarks of conduct requiring censure, the fact the Former Manager did not conceal the fact it had taken the money and disclosed what it had done takes this case out of the narrow range of cases requiring an award of punitive damages. I therefore decline to make an award of punitive damages.

Conclusion:

[40] For these reasons the application is granted and the cross-application is dismissed. Order to issue in the following terms:

a) Declaring that the payment by the Former Manager to itself of an undeclared dividend was unauthorized and illegitimate; and

b) Requiring the Former Manager to repay forthwith $1,461,220 to the Fund, subject to a setoff of $11,600 on account of fees that became due on March 8, 2017;

c) Dismissing the Fund’s claim for punitive damages.

[41] Costs, as agreed, to the Fund, fixed at $35,000 all in.

MESBUR J.

Released: 20170823

[^1]: RSC 1985, c. C-44 [^2]: Paragraph 2 of the Fund’s factum dated 21 June, 2017 [^3]: Affidavit of Derek Lew, President and Chief Executive Officer of the Former Manager, sworn January 31, 2017 at paragraph 10 [^4]: Article 5.1 of the Management Agreement sets out the Management Fee. Article 5.2 deals with the Administration Fees and Additional Administration Fee. “Series Shares” are defined in Article 1.1(x). [^5]: Letter from Derek Lew, President of the Former Manager, to The Fund’s Board of Directors, dated January 18, 2017. The Ministry had previously seized funds from the Fund’s bank account. [^6]: 1995 CanLII 1096 (ON CA), [1995] O.J. No. 2300 (O.C.A.) [^7]: Ibid at paragraph 58, citations omitted [^8]: Ibid. [^9]: Ibid at paragraph 60, quoting Norberg v. Wynrib, (1992), 1992 CanLII 65 (SCC), 92 D.L.R. (4th) 449, at 472 (S.C.C.)