Court File and Parties

COURT FILE NO.: CV-19-2159-00 DATE: 2020 08 10

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Prime Global Solutions Inc. Plaintiff v. Lambton Conveyor Limited Defendant

BEFORE: Bloom, J.

COUNSEL: E. Rogers, counsel for the Plaintiff and Tianya Shao, Secretary and Director of the Plaintiff E. Florjancic, counsel for the Defendant

HEARD: August 7, 2020

Endorsement

[1] Tianya Shao, a director and secretary of the Plaintiff, brings the motion at bar under s. 246 (1) of Ontario’s Business Corporations Act; the factum of the Plaintiff and Mr. Shao also cites s. 247 of the act in seeking relief.

[2] The Defendant does not oppose the motion. One other director of the Plaintiff has effectively consented to the relief sought; and the other three directors have necessitated the bringing of the motion at bar by refusing to consent to the relief sought when asked in a letter of November 19, 2019 and when subsequently served with the notice of motion. Those three directors are Daniel Sturgeon, John Christopher Moorhouse, and Richard Depooter.

[3] I have considered whether instead of the motion at bar an application should have been brought. I have had regard to all of the circumstances of the case at bar, including the fact that the three directors who did not consent to the relief sought did not appear to oppose the motion, although they were aware of it. I have decided to address the merits of the relief sought. I have done so, despite any defects in the procedure followed; and I make no finding in that regard. In taking this path, I note that I would have applied Rules 1.04(1) and (1.1), 2.01, and 2.03 to cure any procedural defects.

[4] The affidavit and other material filed justify on the merits the order which I make nunc pro tunc under s. 246 of the Business Corporations Act that leave be given to bring the action as a derivative action in the name and on behalf of the Plaintiff; and the further order that I make under s. 247 that Mr. Shao, as Secretary and Director, be appointed to control the conduct of the action.

[5] As to the matter of costs, I am cognizant that an award of costs against a non-party is rarely appropriate. However, in the case at bar I make that order as against the three directors who refused to consent to the relief sought. I do so under both s. 247 and under the Rules of Civil Procedure. I do so because their conduct created the necessity for this motion, and yet they did not appear to contest it. I make that order in favour of Mr. Shao.

[6] For the same reasons I fix quantum as substantial indemnity costs in the amount of $6423.02 inclusive of fees, disbursements, and applicable taxes, payable jointly and severally and within 30 days.

[7] I also dispense with approval as to form and content of the formal order by all persons except the Defendant.

Bloom, J.

DATE: August 10, 2020