Court File and Parties

COURT FILE NO.: CV-16-011577-00CL DATE: 20180917 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Heshi Kuhnreich, Applicant AND: Metcom Canada Limited, Erle Stephens, David Bogert, Bruce Aukland and Cindi Miller, Respondents

BEFORE: Wilton-Siegel J.

COUNSEL: Alvin Meisels, for the Applicant Robert Cohen and Christopher Selby, for the Respondents

HEARD: July 12, 2018

Endorsement

[1] In this application, the applicant Heshi Kuhnreich (“Heshi” or the “applicant”) alleges that he has been constructively dismissed by the reduction of his compensation as an employee of Metcom Canada Limited (“Metcom”) and that the respondents have conducted the business and affairs of Metcom in a manner that constitutes oppression for the purposes of s. 248 of Business Corporations Act, R.S.O. 1990, c. B.16 (the “Act”). He seeks the payment of an amount for the reduction in his compensation and an order requiring Metcom to purchase his shares in the corporation.

Factual Background

The Ownership of the Shares of Metcom and the Service Provider Agreement with SelectCom Inc.

[2] Metcom is a corporation incorporated under the laws of Ontario in 1992. It is a small, privately-owned corporation that carries on business as a reseller of telecommunications services.

[3] Metcom was incorporated by Heshi and a third party, Michael Baron (“Baron”). Baron acquired 68% of the common shares and Heshi acquired 32%.

[4] Heshi has been a director, shareholder and employee of Metcom since Metcom’s inception. Initially, he was responsible for managing Metcom’s billing system and customer database, which he designed.

[5] Between 1992 and 2002, there were several changes in the common shareholders of Metcom. From March 12, 2002 until the completion of the Share Purchase (defined below), David Bogert (“Bogert”) held 68% of the common shares of Metcom and Heshi held 32%. During this time, Bogert was the president and treasurer of Metcom and Heshi was the secretary.

[6] During 2008 and 2009, SelectCom Inc. (“SelectCom”) and Bogert negotiated a potential sale of Bogert’s shares in Metcom. These negotiations were, however, unsuccessful. Initially, SelectCom was also interested in purchasing Heshi’s shares but he was not willing to sell. Heshi says the transaction did not proceed because he was unhappy with a proposed shareholders agreement between SelectCom and himself. Whether or not this is correct, it is irrelevant. The salient fact is that Bogert and SelectCom failed to reach any agreement for SelectCom’s purchase of shares in Metcom.

[7] Instead, in March 2011, Metcom entered into a service provider agreement with SelectCom (the “SPA”). Under the SPA, SelectCom took over responsibility for Metcom’s operational functions other than sales but including maintaining its database management, billings and customer service. For these services, SelectCom is paid a monthly fee of $17,500 plus an amount based on gross monthly billings in excess of $17,500. As a result of the arrangements under the SPA, Heshi’s role has been significantly reduced.

[8] Subsequently, the respondent Erle Stephens (“Stephens”) discussed with Bogert the possibility of purchasing his shares. Stephens was, and remains, the vice-president of sales and a shareholder of SelectCom. Through Bogert, Stephens also indirectly raised with Heshi the prospect of purchasing Heshi’s shares. Ultimately, Bogert was prepared to sell his shares in Metcom but Heshi was not prepared to do so at the transaction price agreed between Bogert and Stephens.

[9] Pursuant to a share purchase transaction completed July 31, 2014 (the “Share Purchase”), Bogert sold 57.6% of the common shares of Metcom to Stephens, which Stephens transferred shortly thereafter to 2430226 Ontario Inc. (“243”), a corporation that he controlled. Pursuant to a separate share transaction that closed at the same time, Bogert sold his remaining 10.4% of the common shares of Metcom to Cindi Miller (“Miller”).

[10] Since the Share Purchase, Stephens has been the president, treasurer and a director of Metcom and Miller has been the vice-president of sales and a director of Metcom. Bogert ceased to be an officer or director of Metcom. He did, however, receive a monthly consulting fee of $1,000 pursuant to a two-year consulting agreement with Metcom.

[11] There has been no executed shareholders agreement among the shareholders of Metcom, whether before or after the Share Purchase. Nor is there any other legally binding arrangement by which Heshi can sell his shares or otherwise be paid for his shares on his disengagement from Metcom.

The Financial Arrangements Between Bogert and Heshi

[12] For many years prior to the Share Transaction, Bogert and Heshi had been receiving equal monthly salaries as remuneration. As at July 2014, their monthly draw was $4,000 per month. In addition, Metcom obtained an American Express debit card and various credit cards (collectively, the “Cards”) that they both used. A principal use of the Cards was to pay suppliers of telecommunication services with whom Metcom contracted. However, Bogert and Heshi also charged personal expenses to Metcom on the Cards and split the points earned on the Cards. The personal expenses charged included mobile phones, travel, automobile and personal purchases. Heshi says that the combined value of his purchases on the Cards, together with the points redeemed, was approximately $50,000 per year. The evidence regarding Heshi’s compensation, and his use of the Cards, is as follows.

[13] First, during the years 2010 to 2016, Heshi’s salary was reported for tax purposes as a flat amount - $60,000 in each of the years 2010 to 2013, $55,000 in 2014, and $48,000 in each of the years 2015 and 2016.

[14] Second, in his affidavit sworn April 13, 2017, Bogert says that personal expenses paid on the Cards and benefits that Heshi received from credit card privileges, ie. “points”, were not reported as taxable income in the T4 statements issued to Heshi by Metcom in respect of the foregoing years. Accordingly, the personal expenses paid on the Cards were not treated as additional salary or other compensation for tax purposes.

[15] Third, as a consequence, any arrangement that existed between Bogert and Heshi pertaining to the payment of personal expenses on the Cards, and the use of “points” associated with the Cards, was an informal arrangement made in their capacities as shareholders. In other words, the payment by Metcom of personal expenses incurred on the Cards was effectively a payment to Heshi in his capacity as a shareholder, whether by way of a distribution or a shareholder loan. Similarly, the use of accumulated points on the Cards by Bogert and Heshi constituted a distribution of corporate assets to them in their capacities as shareholders.

[16] Fourth, the understanding between Heshi and Bogert was that each was entitled to compensation of $4,000 per month and to the use of the Cards on the same terms.

[17] Fifth, under the arrangement between Bogert and Heshi, the use of the Cards for the payment of personal expenses was subject to Metcom’s financial capacity to make such payments, that is, was subject to payment being feasible from a financial point of view. This was particularly significant in the case of the American Express card, which was a debit card rather than a credit card and therefore required immediate payment.

[18] Lastly, the foregoing arrangements were personal to Heshi and Bogert. Stephens was never a party to such arrangements. While Stephens was aware of such arrangements prior to the completion of the Share Purchase, there is no evidence that he agreed to continue these arrangements as a new shareholder of Metcom. In this regard, it is significant that Bogert says that he told Heshi that “despite Metcom’s prior practice for expense reimbursement, [he] believed that there was no basis for the practice to continue” and that he had not submitted personal expenses to Metcom for reimbursement after the new expense policy described below was implemented by Stephens.

The Financial Arrangements After the Share Purchase

[19] After the Share Transaction, Bogert ceased to receive his draw of $4,000 monthly. In his place, it appears that Stephens has been drawing a salary of $3,000 monthly and Bogert was paid his monthly consulting fee of $1,000 for two years. Heshi says that Stephens also earns a sizeable salary from SelectCom. Heshi suggests Stephens spends approximately 30 hours per week on SelectCom matters and 8-10 hours per week on Metcom matters. I do not consider these facts to be relevant, however, to the issues in this proceeding.

[20] On or about September 17, 2014, Stephens had a conversation with Heshi in which he stated that, for cost control reasons, Metcom could not afford to sustain Heshi’s monthly spending on the Card, which averaged $2,400 excluding payments to telecommunications carriers. He directed Heshi to reduce his use of the Cards to a maximum of $500 per month. Stephens also stated that expenses charged to reduce Heshi’s personal tax burden were not legitimate expenses of Metcom. In this regard, it appears that Stephens misconstrued the financial arrangements between Bogert and Heshi as an attempt to have Metcom improperly bear their personal expenses. As described above, the arrangements between Bogert and Heshi constituted payments to them in their capacities as shareholders. In my view, however, there is no significance to Stephens’ misunderstanding on this matter.

[21] In October 2014, Stephens became ill and was temporarily replaced by Bruce Aukland (“Bruce”) as acting president of Metcom. Bruce is the managing director of SelectCom.

[22] During this time, Bruce cancelled the use of the American Express debit card. He says that, at the time, Metcom was struggling to manage its payables and that Metcom’s relationships with certain telecommunication carriers were in jeopardy. He considered the payment terms on the American Express debit card to be inflexible and expensive because it required immediate payment. Bruce required use of another corporate Visa card in Metcom’s name which he says provided better credit terms. There is no evidence that contradicts these statements.

[23] In early 2015, Stephens returned to his position. He implemented a new expense policy. Under this policy, all Metcom employees and shareholders required prior approval for reimbursement of Metcom expenses based on written submissions. The respondents say this was done for cost control purposes and to prevent reimbursement of inappropriate expenses.

[24] Heshi says that Stephens did this without any discussion with Miller, Bogert or Heshi although he acknowledges that he had a meeting in November 2014 with Bruce, Bogert and Miller in which the discussion included, among other things, Metcom’s cash flow situation and “fiscal management/expense reduction”. This is understood to mean that the parties discussed the fact that Metcom had negative cash flow and needed to reduce its expenses.

[25] On or about April 1, 2015, Heshi submitted a request for reimbursement of expenses incurred between November 27, 2014 and February 28, 2015. Stephens rejected these expenses on the basis that they were personal in nature and therefore did not comply with the new expense policy. Heshi has not sought reimbursement of any expenses incurred on any of the Cards in his possession since that time.

This Proceeding

[26] Heshi says that the new expense policy instituted by Stephens effectively reduced his compensation by approximately $50,000 per year. Heshi also says that he requested that his shares be purchased in accordance with the same pricing formula used to value Bogert’s shares in Metcom for the Share Transaction and that he was rebuffed.

[27] Heshi commenced this application by a Notice of Application dated October 26, 2016 (the “Notice”). In the Notice, he seeks a declaration that the respondents have conducted the affairs of Metcom in a manner that is oppressive for the purposes of s. 248(2) of the Act. He seeks various relief including: (1) an order for an accounting of Metcom for the past five years; (2) an order requiring payment of withheld compensation and benefits of $250,000 (being five years of credit card benefits at $50,000 per year); and (3) an order winding up Metcom and dividing its assets or, alternatively, an order requiring the respondents to purchase his shares in Metcom at a value to be determined by the court.

[28] In respect of the first category of relief, Heshi alleged that he had been denied financial information to which he was entitled as a shareholder of Metcom. However, it appears that he has been provided with considerable financial information since the commencement of this litigation. In any event, this matter was not raised on the hearing of this application and is not addressed further.

Applicable Law

[29] The applicable provision of the Act is s. 248, the relevant portion of which reads as follows:

248 (1) A complainant and, in the case of an offering corporation, the Commission may apply to the court for an order under this section. (2) Where, upon an application under subsection (1), the court is satisfied that in respect of a corporation or any of its affiliates, (a) any act or omission of the corporation or any of its affiliates effects or threatens to effect a result; (b) the business or affairs of the corporation or any of its affiliates are, have been or are threatened to be carried on or conducted in a manner; or (c) the powers of the directors of the corporation or any of its affiliates are, have been or are threatened to be exercised in a manner, that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer of the corporation, the court may make an order to rectify the matters complained of.

[30] The constituent elements of an oppression claim were most recently reaffirmed by the Supreme Court in Wilson v. Alharayeri, 2017 SCC 39, [2017] 1 S.C.R. 1037, at para. 24 as follows:

The two requirements of an oppression claim are equally well known. First, the complainant must “identify the expectations that he or she claims have been violated by the conduct at issue and establish that the expectations were reasonably held” (BCE, at para. 70). Second, the complainant must show that these reasonable expectations were violated by corporate conduct that was oppressive or unfairly prejudicial to or that unfairly disregarded the interests of “any security holder, creditor, director or officer,” pursuant to s. 241(2)…

In this case, the issues turn on the reasonableness of Heshi’s alleged expectations.

Preliminary Matter

[31] At the opening of the hearing, Heshi sought to introduce into the record an audio recording of a telephone conversation held on August 27, 2014 involving Heshi and Stephens. Heshi proposed that he would provide viva voce testimony at the hearing as to its authenticity. Heshi did not bring a motion to introduce this evidence prior to the hearing of the application and, accordingly, the respondents had no prior notice of this request. He apparently waited until after the cross-examination of Stephens was completed before indicating the existence of this recording and suggesting that he intended to rely on it in some unspecified manner.

[32] Heshi’s request was denied for the following reasons.

[33] First, this proceeding is an application and is, therefore, to be determined on the basis of the record before the Court. It is not contemplated that viva voce evidence would be received by the Court. Heshi could have sought an order converting the application into an action but did not do so.

[34] Second, Heshi failed to put the contents of the telephone conversation to Stephens in the cross-examination. Accordingly, it would be substantially unfair to allow this evidence to be introduced at this stage of the proceedings.

[35] Third, this is not fresh evidence. Heshi had this evidence at all times in this proceeding. He was therefore in a position to put forward the contents of this telephone conversation, and its significance for his case, in affidavit evidence at any time. Alternatively, he could have introduced the transcript into evidence by way of an affidavit. He took neither of these actions until the date of the hearing of the application. Heshi has no explanation for why this evidence was not introduced earlier in this proceeding, other than an oversight on counsel’s part. Whether out of oversight or otherwise, this type of practice is discouraged in the interests of a fair and efficient judicial process.

[36] Lastly, Heshi says that the recording is important because of the “tone”. However, the “tone” in which Stephens expressed his views is not relevant. The principal issue in this proceeding is the legal significance of the arrangements between Bogert and Heshi pertaining to the use of the Cards. These arrangements have been set out in his affidavits and Stephens’ relationship to these arrangements was the subject of cross-examination. It appears, therefore, that this evidence would not add anything of relevance.

The Issues

[37] The applicant asserts three separate claims:

(1) A claim of constructive dismissal; (2) A claim of oppressive activity pursuant to s. 248 of the Act; and (3) A claim of conspiracy to injure.

Analysis and Conclusions

[38] I will address each of the three causes of action separately and in turn.

Wrongful Dismissal

[39] Heshi claims that he was constructively dismissed by Metcom. It is not disputed that Heshi’s actual role in Metcom has remained unchanged since the Share Purchase. Heshi’s claim for wrongful termination is, instead, based on the withdrawal of his entitlement to use the Cards to pay for personal expenses and to the benefit of the points accumulated thereon. His claim fails for the following two principal reasons.

[40] As discussed above, Heshi was not entitled to the use of the Cards as part of his compensation arrangements as an employee of Metcom. The arrangements between Bogert and Heshi regarding the use of the Cards pertained to their shareholder relationship. More importantly, the arrangement was personal to Bogert and Heshi and did not survive the Share Purchase. In particular, Stephens did not assume any obligation to continue to comply with those arrangements.

[41] The foregoing determination is sufficient on its own to dismiss Heshi’s claim for wrongful termination. However, in addition, and in any event, Heshi’s entitlement to incur personal expenses on the Cards under his arrangement with Bogert was subject to Metcom’s ability to make such payments. Heshi acknowledges that Metcom’s cash flow in the second half of 2014 and the first half of 2015 was not sufficient to make any such payments. The financial statements of Metcom in the record for the period August 2014 through January 2015 reflect a significant loss, although they do not show cash flow for the period.

[42] Further, insofar as Heshi’s principal complaint regarding the use of points pertained to points accumulated on the American Express debit card, there was a legitimate corporate reason consistent with his arrangement with Bogert for terminating the use of that card. As a debit card, rather than a credit card, it was more expensive than the Visa card at a time when Metcom had cash flow concerns. Metcom was not obligated to continue his use of the American Express card in these circumstances.

[43] Accordingly, Heshi’s claim of wrongful dismissal is dismissed.

The Oppression Claim

Heshi’s Position

[44] Heshi says that his reasonable expectations as a shareholder of Metcom were frustrated in two respects.

[45] First, he says that he had a reasonable expectation of continuation of the compensation arrangements under which he was entitled to be reimbursed for personal expenses incurred on the Cards which, together with the related points, approximated $50,000 per year in addition to his base salary of $4,000 per month.

[46] Second, he says that he had a reasonable expectation that Metcom would purchase his shares at the same price per share, or at least on the basis of the same pricing formula, as applied on the purchase of Bogert’s shares if he chose to exit as a shareholder.

Analysis and Conclusions

[47] I will address each of these claims in turn.

Heshi’s Expectation Regarding Continued Entitlement to the Card Privileges

[48] Heshi says that he had a reasonable expectation that he would be entitled to continuation of the use of the Cards in accordance with his arrangement with Bogert that has been frustrated by Stephens’ actions. He submits that such actions constitute oppressive activity for the purposes of s. 248(2) of the Act. In the course of this litigation, he has framed the basis for this claim in three different ways, which I will address in turn.

[49] First, Heshi says that he had a reasonable expectation that these arrangements would continue after the Share Purchase based on Stephens’ knowledge of the arrangements between Bogert and Heshi at the time of the Share Purchase. There is no basis for any such expectation for two reasons.

[50] Most importantly, for the reasons discussed above, the arrangement pertaining to the use of the Cards was an informal arrangement between Bogert and Heshi personally in their capacities as shareholders. There is no legal basis for finding that Stephens assumed an obligation to continue to honour such arrangement after the Share Purchase.

[51] In addition, and in any event, the arrangements pertaining to the use of the Cards were, at all times, dependent on Metcom’s ability to pay the personal expenses incurred on the Cards. As mentioned, the uncontradicted evidence is that Metcom’s cash flow in the second half of 2014 and the first half of 2015 was insufficient to pay any personal expenses of any of the Metcom shareholders. In addition, the termination of the American Express debit card and the accumulation of the associated points, which was Heshi’s principal card, was fully justified on financial grounds as discussed below.

[52] Heshi’s position that Metcom could have addressed its cash flow difficulties and continued to allow him to incur personal expenses on the Cards by withholding payment of Stephens’ base salary of $3,000 per month is not tenable. As set out above, Heshi’s compensation arrangement with Bogert and Metcom was dependent upon each of Bogert and himself receiving the same compensation. Heshi cannot require Stephens to waive all salary in order to fund Heshi’s personal expenses.

[53] Second, Heshi suggests that his expectation arose as a result of assurances that were given to him at the time of the abortive transaction with SelectCom in 2007. There is also no basis for such an expectation for two reasons. At that time, Bogert’s discussions were held with SelectCom rather than with Stephens, who was the eventual purchaser of Bogert’s shares. It is not clear on the record that Stephens even participated in those negotiations. More importantly, the parties did not reach any agreement, much less an agreement with Heshi regarding his compensation and other financial arrangements after the completion of any transaction with Bogert.

[54] Third, Heshi suggests that his expectation arose as a result of assurances that were given at the time of the SPA that his financial arrangements would not change. A companion allegation is that the SPA has been detrimental to Metcom as a result of a conflict of interest of SelectCom in its administration of the SPA or otherwise. There is, however, no basis for either of these assertions in the evidence before the Court. In this regard, the following considerations are relevant.

[55] With respect to the first allegation, there is no evidence of any discussion at the time of the SPA regarding Heshi’s financial arrangements nor was there any need for such a discussion as Heshi’s concerns related solely to the shareholder arrangements between Heshi and Bogert. The implementation of the SPA did not change the shareholder arrangements. There is therefore no evidence of any assurances of SelectCom to Heshi at that time. Further and, in any event, there is no evidence that Stephens and Miller are acting as agents, or otherwise, on behalf of SelectCom.

[56] With respect to the second allegation, Heshi consented to Metcom entering into the SLA with SelectCom. Further, the evidence in the record indicates that Metcom received a significant benefit from the SLA. Heshi has failed to provide any support for his claim of offsetting prejudice to Metcom resulting from SelectCom’s administration of the SPA and the conduct of Metcom’s business since the implementation of the SPA. In any event, any oppression claim based on the SPA would be asserted against SelectCom, which is not a respondent in this application.

[57] Accordingly, I conclude that Heshi did not have a reasonable expectation that he would be entitled to privileges respecting the Cards indefinitely in the manner in which he and Bogert used the Cards prior to the Share Purchase Transaction.

[58] I would note as well that, even if it were established that Heshi had a reasonable expectation of a continued entitlement to the Card in accordance with the arrangements between him and Bogert, the appropriate remedy would not be an order requiring Metcom to repurchase his shares. As confirmed in Wilson v. Alharayeri, at para. 27, any remedy under section 248 “should go no further than necessary to correct the injustice or unfairness between the parties”. In other words, any order should be limited to that which is necessary to rectify the oppressive actions. In this case, the appropriate remedy would be an order requiring the restoration of such privileges and the payment of compensation for the years in which such privileges had been denied, not a compulsory purchase of Heshi’s shares.

Heshi’s Expectation Regarding the Repurchase of His Shares

[59] Heshi also says that he had a reasonable expectation that Metcom would purchase his shares at the same price per share, or at least on the basis of the same pricing formula, as applied in the Share Purchase if he chose to exit as a shareholder. There is no basis for any such expectation for the following reasons.

[60] First, Heshi acquired his shares when Metcom was incorporated. Apparently, there was no shareholders agreement between Baron and Heshi at any time. Nor did he and Bogert ever agree on a shareholders agreement. There is therefore no agreement requiring Metcom, or Stephens and Miller, to purchase his shares if he wishes to exit the corporation.

[61] Second, Heshi suggests that he had a reasonable expectation based on discussions regarding a shareholders agreement, or a comparable offer being made to Heshi, at the time of the discussions regarding a possible sale of Bogert’s shares to SelectCom in 2007. There is no basis for such an expectation. Bogert was under no legal obligation to require that Stephens enter into a shareholders’ agreement with Heshi as a condition of selling his shares, if indeed he did so, which is unclear. In any event, Heshi rejected the form of shareholders agreement that was negotiated at that time. Moreover, the negotiations at the time were between SelectCom and Bogert rather than with Stephens and Miller. There is no evidence that the real purchaser in 2014 was SelectCom, as Heshi believes.

[62] Third, Heshi suggests that he had a reasonable expectation based on assurances at the time of the Share Purchase that he would be able to exit Metcom if his financial arrangements were not continued. There is no evidence of any basis for such an expectation. As addressed above, there was no reasonable basis for his alleged expectation of the continuation of his use of the Cards after the Share Purchase for personal purchases. There was also no agreement at the time of the Share Purchase obligating Stephens to purchase his shares or to require Metcom to purchase his shares. Moreover, Heshi was indirectly given an offer, which he rejected as too low. There was no obligation on Stephens to give him a higher offer.

[63] Lastly, Heshi submits that he had a reasonable expectation that he would not be required to remain a shareholder indefinitely. Put another way, Heshi says he has a reasonable expectation that he would be able to sell his shares to Metcom at the time that he chose to exit the corporation. In the absence of a shareholders agreement to this effect, there is no basis for such an expectation. It is unreasonable to impose an obligation on a third-party purchaser to require Metcom to purchase Heshi’s shares to rectify that failure.

[64] The purchase of shares in a private corporation having a minority shareholder carries its own risks. In particular, the affairs of the corporation must be carried on with a view to equal treatment of all of the shareholders. However, if a third party is prepared to accept these risks, the Court cannot impose an obligation on the purchaser, or the corporation, to purchase the shares of a minority shareholder in the absence of other facts giving rise to a claim for oppressive activity on the part of the purchaser. For the reasons discussed above, there are no such other facts in this case.

[65] Moreover, there are also Preferred Shares and Special Class A Shares of Metcom that rank prior to the common shares and a very significant deficit in shareholders’ equity. These circumstances raise significant issues regarding Metcom’s ability to purchase any of its common shares. These considerations were not addressed in this proceeding. However, any expectation that Metcom would purchase Heshi’s shares would be subject to compliance with the Act. Heshi has not demonstrated that such a purchase would be possible under the Act given Metcom’s current financial position.

[66] Accordingly, I conclude that Heshi did not have a reasonable expectation that his shares would be purchased by Metcom if he chose to exit the corporation.

Conspiracy Claim

[67] While Heshi’s Notice of Application alleges conspiracy, it does not plead any facts with sufficient particularly to permit an understanding of this claim. Moreover, neither his factum nor his oral submissions at the hearing of this application addressed the grounds for this claim.

[68] In any event, there are no facts that support a finding that any of the respondents acted with the predominant purpose of harming, or causing loss to, Heshi. Any claim of conspiracy based on improper means is entirely reliant on a finding of either oppressive activity or wrongful dismissal. As such, this conspiracy claim is secondary to these other claims. As each of these other claims has been dismissed above, the conspiracy claim must also fail.

Conclusion

[69] Based on the foregoing, Heshi’s application is dismissed in its entirety. The parties shall have thirty days to make written submissions not exceeding five pages in length together with a costs outline in the form required by the Rules of Civil Procedure.

Wilton-Siegel J. Date: September 17, 2018