Court File and Parties
COURT FILE NO.: 18-75539
DATE: 2020/01/24
COURT OF ONTARIO, SUPERIOR COURT OF JUSTICE
RE: Paul Sun, Plaintiff AND: Duc-Tho Ma also known as Tom Ma, Defendant AND: Paul Sun and Ironyun Incorporated, Defendants by Counterclaim
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Shawn J. O’Connor, for the Plaintiff & Defendant by Counterclaim, Paul Sun Duc-Tho Ma (Tom Ma), Defendant and Plaintiff by Counterclaim No one appearing for Ironyun Incorporated
HEARD: January 24, 2020 by telephone
Decision and Reasons
[1] The parties appeared before me on a conference call to settle the form of the judgment and to verify whether or not the preconditions to enforcement of the judgment set out in my decision of November 19th, 2019 had been complied with. (See 2019 ONSC 6659). Those conditions required the plaintiff to provide certain records and proof of ownership to the defendant in order to ensure Mr. Ma had the evidence of what was done with his shares of Ironyun and proof of his ownership and control of IZ Incorporated. All of this was set out in my reasons for decision.
[2] I am satisfied that the draft judgment provided by Mr. O’Connor accurately tracks the terms of my decision and I therefore settled the form of the judgment. That judgment will issue in the form attached to the e-mail. Mr. O’Connor will send a clean original copy to my office for my signature.
[3] The judgment as drafted contains a stay on enforcement until the conditions are fulfilled. It had been hoped that if Mr. Ma conceded that they had been fulfilled or the court was in a position to decide that they had been fulfilled, an unconditional judgment could issue instead.
[4] Unfortunately, Mr. Ma had to call in from China. He is in a small town with limited internet access and unable to travel easily because of the current situation involving the coronavirus and quarantines imposed by the government of China. The documents and affidavits have been provided to Ms. Sutherland who is advising him but was not retained to represent him in the litigation. He has not had an opportunity to review the documents with her.
[5] As a consequence, I will issue the judgment in the form submitted and permit the parties additional time to review the evidence that has been provided. So that there is no misunderstanding, the purpose of the stay and the order was to ensure that Mr. Sun provided Mr. Ma with the disclosure he was entitled to but it was not intended to provide Mr. Ma with a way to stall enforcement of the judgment for a technicality.
[6] Mr. Sun was ordered to produce to Mr. Ma:
a. An original copy of the share certificate showing the Class A Preferred shares owned by IZ Incorporated.
b. If IZ Incorporated continues to hold Class A Preferred shares in Ironyun, Mr. Sun was to ensure that the shareholder corporation continues to receive all communication and information it is entitled to as a shareholder and unless there is some legal reason he is precluded from doing so, he shall provide copies to Mr. Ma.
c. Mr Sun was to cause Ironyun to provide Mr. Ma with proof of the current number of shares held by IZ Incorporated or to produce the records showing how and when IZ Incorporated ceased to hold such shares.
d. To the extent that he had possession, power or control of the corporate records of IZ Incorporated Mr. Sun was to ensure they were delivered to Mr. Ma. Alternatively, if he was unable to produce those records, Mr. Sun was to provide all information in the Ironyun records or in his personal knowledge regarding the whereabouts of the corporation, its records and Mr. Ma’s rights including any information he had to show that Mr. Ma ceased to have such rights if that is the case.
[7] As I understand the affidavits that have now been filed, the original founders shares were held in escrow and would have been issued to IZ Incorporated at the end of four years but because Ironyun purported to dismiss Mr. Ma for cause after two years, those shares were confiscated and the certificate was not issued. So, the evidence is that there are only copies of the unissued founders share certificates and no originals.
[8] It appears that IZ Incorporated continues to be the owner of 1,000,000 Class A Preferred shares in Ironyun which were the subject of Share Certificate No. 11. Mr. Sun deposes that the corporation claims it mailed the original share certificate to Mr. Ma and does not have it in its possession. Presumably the corporation could issue a replacement certificate or other proof of ownership unless Ironyun also purports to have forfeited these shares in which case it should be clear about when, why and how that took place.
[9] I will not rule on the question of compliance for the moment. This is to allow Mr. Ma to consult with Ms. Sutherland and also for him to contact the head office or registered office of IZ Incorporated or the company which incorporated IZ Incorporated to gain access to the corporate records or determine what became of them.
[10] I draw to Mr. Ma’s attention the very narrow scope of this court’s continuing involvement. See paragraphs 19 – 21 of the November Decision. All disputes under the founders’ agreement are to be arbitrated in Taiwan. This court took jurisdiction only over the promissory note and the disclosure of certain documents which I ordered. As stated above, the purpose of that was solely to ensure that Mr. Ma was given access to the corporate records of Ironyun relating to the shares which may be in dispute if he proceeds with the arbitration and with whatever information Mr. Sun or Ironyun had about the records of IZ Incorporated.
[11] Mr. Sun believes he has now complied. I am deferring that decision only in fairness to Mr. Ma’s current geographical and communication difficulties so that he can confer with counsel. In the event that Mr. O’Connor and Mr. Ma (with the assistance of Ms. Sutherland) cannot resolve this question within 30 days then Mr. O’Connor may schedule a further date with me to hear argument and to determine if the conditions have been satisfied.
[12] Mr. Ma should also be aware that although I temporarily stayed enforcement of the judgment, the judgment was pronounced in November and is accruing interest as of that date. The judgment I will be signing is dated November 19, 2019.
Mr. Justice C. MacLeod
Date: January 24, 2020
COURT FILE NO.: 18-75539
DATE: 2020/01/24
ONTARIO SUPERIOR COURT OF JUSTICE
RE: Paul Sun, Plaintiff AND: Duc-Tho Ma also known as Tom Ma, Defendant AND: Paul Sun and Ironyun Incorporated, Defendants by Counterclaim
BEFORE: Mr. Justice Calum MacLeod
COUNSEL: Shawn J. O’Connor, for the Plaintiff & Defendant by Counterclaim, Paul Sun Duc-Tho Ma (Tom Ma), In Person, Defendant and Plaintiff by Counterclaim No one appearing for Ironyun Incorporated
Decision and Reasons
Mr. Justice Calum MacLeod
Released: January 24, 2020