Court File and Parties

COURT FILE NO.: CV-15-11013-00CL DATE: 20210208

SUPERIOR COURT OF JUSTICE - ONTARIO (COMMERCIAL LIST)

RE: V.M. KOURY INVESTMENTS LTD., Applicant - and - BOLTON STEEL TUBE CO. LTD., WINSTON PENNY and MARIE PENNY, Respondents

BEFORE: Koehnen J.

COUNSEL: Berkley D. Sells for the Applicant Kenneth H. Page for the Respondents Bolton Steel Tube and Winston Penny

HEARD: February 5, 2021

Revised ENDORSEMENT

[1] Virginia Koury is 92 years old. She is the sole shareholder of the applicant, V. M. Koury Investments Ltd. Koury Investments holds 30% of the shares of the respondent Bolton Steel Tube Co. Ltd.

[2] The respondent Bolton is operated by the respondent Winston Penny. He has been its sole officer and director since 2008.

[3] Koury Investments became involved in Bolton through the husband of Virginia Koury, Henry Koury. He worked full-time for Bolton between 1987 and 2008. He was also a director between 1996 and 2008. Henry died in 2017 at 95 years of age.

[4] The applicant alleges that, after Henry stopped working at Bolton, Mr. Penny began operating the company in a manner that was oppressive to, unfairly prejudicial to and that unfairly disregarded the interests of Koury Investments.

[5] I agree. Mr. Penny operated Bolton as his private company. He has violated numerous court orders. He has failed to provide the most basic financial information and appears to have used the company as his personal piggy bank from which to withdraw funds and assets at will. When called out for the defalcations, he has delayed, obfuscated or destroyed records.

[6] Both sides agree that Koury Investments should be bought out. They disagree on the mechanism to do so.

The Oppression

a. Financial Information

[7] The [Ontario Business Corporations Act][^1] requires corporations to prepare audited financial statements annually unless the shareholders unanimously agree otherwise.[^2] After Mr. Koury left Bolton, Mr. Penny stopped preparing audited financial statements and stopped sharing information about the company with the applicant. In 2009, Bolton Steel stopped paying dividends to Koury Investments and stopped preparing even review engagement financial statements.

[8] On July 29, 2013, Justice Morawetz ordered Bolton to deliver audited financial statements for the fiscal years ended September 30, 2011 and September 30, 2012.

[9] Bolton did not do so. Instead, it is auditor issued a “Disclaimer of Opinion” regarding the 2011 and 2012 financial statements. The auditor so because, among other things, it was not able to verify Bolton’s shareholder receivable balance. It appears that Mr. Penny had caused Bolton to advance money $3.3 million to himself as “shareholder advances” which he appears to have used to fund his own lifestyle, including his purchases of numerous race horses. Mr. Penny appears to have funded the shareholder advances either in whole or in part with high-interest mortgages on real estate owned by Bolton.

[10] On September 11, 2017, Justice Conway ordered the respondents to deliver audited financial statements for the fiscal years 2014, 2015 and 2016. Work on the 2016 audited financial statements did not commence until sometime in 2018.

[11] In the face of the controversy about shareholder advances, Mr. Penny increased the mortgages on Bolton’s real estate from $4 million to $5.625 on November 1, 2019. He did not disclose the increased mortgage until several months later and has offered no explanation for it.

[12] In her endorsement of November 20, 2019 Justice Conway noted Mr. Penny’s failure to comply with court orders:

There has been no production of the 2018 and 2019 financial statements (audited) by November 28 as per my October 2 endorsement. While Mr. Page advises that the auditors have now been retained, it is entirely unclear why the financial statements have not been delivered. This has been dragging since at least my order of September 11, 2017 and the Respondent does not appear to be taking this seriously, notwithstanding my numerous commercial list attendances and assurances that the financial statements are forthcoming. Mr. Page says the financial statements should be ready in January. [….] Pending January 23, 2020, I expect that no transactions of the respondent corporation will occur outside the ordinary course of business. [Emphasis added.]

[13] In an endorsement of January 23, 2020 Justice Conway noted:

“The Respondents only yesterday delivered draft financial statements and they are not complete. It is time for this application to be adjudicated. I set the date for April 16, 2020 - 1 day any judge confirmed. However, I am also setting a judicial mediation for March 19, 2020 - 1 day, any judge confirmed. This oppression application should be able to resolve at that time, without the April 16 date being required. If it does not settle this long standing litigation will finally be determined on its merits on April 16, 2020. I continue my direction re[garding] no out of the ordinary course transactions pending settlement or adjudication of this matter.”

[14] On November 6, 2020, Justice Conway directed the respondents to deliver Bolton Steel’s audited financial statements for the fiscal year ended September 30, 2020 “forthwith after they are ready. Mr. Page advised that he understands that preparation of these financial statements is underway now.” Those statements have not yet been delivered.

[15] The issue of financial statements and calculation of financial misappropriations was additionally complicated because financial records for the fiscal years before 2018 were “erased” from the computer system. Mr. Penny has offered no explanation for this.

[16] Statements from Bolton’s auditor make clear that Mr. Penny refused to cooperate so as to enable them to prepare audited financial statements. By way of example, in his affidavit, Bolton’s auditor stated that it was:

“unable to obtain sufficient appropriate audit evidence on the existence of inventory and the opening balance of due from shareholder and the possible effects on the financial statements of undetected misstatements relating to these items could be both material and pervasive resulting in [the auditor] disclaiming an audit opinion…”

[17] On cross-examination, Bolton’s auditor stated that:

“So we couldn’t verify the opening and closing inventory for those periods… even though we tried by alternative means to do so, we couldn’t do so. …. obviously, when you do an audit, you – its today’s risk-based auditing. We look at where our risk areas are, and inventory was one of them, obviously, and the other was the shareholder loan accounts. We also couldn’t verify the opening balance at the end of 2010 of the shareholder’s loans. …. [Mr. Penny] may have drawn out certain funds to the account and not allocated it to shareholder’s loans.”

“the shareholder’s loan, plus the inventory, was so pervasive to the financial statements, that we felt that we had to give a disclaimer. [….] ‘pervasive’ means that they affect the financial statement in so many areas that we couldn’t get comfortable with…”

[18] Bolton’s auditor also noted that key company personnel were not available which made the audit more difficult and that transactions relating to the management shareholder remained an issue. The situation is perhaps best summarized by the auditor’s statement on cross-examination that “we cannot do an audit if a client does not cooperate.”

b. Financial Misappropriation

[19] The applicant retained Crowe Soberman determine the extent of the applicant’s financial misappropriation and to opine the fair market value of the company. Crowe Soberman was unable to do so because of the lack of information.

[20] It noted that “certain information was requested by us from the Respondents that has not been provided, as such, our scope is inherently limited” and also that “[o]ur analysis has been complicated by the nature of the financial statements provided to us.” The latter is a reference to the fact that there are two versions of the books of the company with discrepancies in the millions of dollars.

i. Financial Advances

[21] Mr. Penny paid himself approximately $3.3 million as shareholder advances which he then wrote off as being uncollectible. The advances were obtained by incurring debt which was secured by real estate owned by Bolton.

[22] Those mortgages were funded by high-interest mortgages. Bolton paid over $4.1 million in interest costs on those mortgages, approximately $2.1 million more than Bolton would have paid on a bank mortgage at prime +2%.

[23] Advances on those mortgages were sometimes paid directly to Mr. Penny.

[24] Crowe Soberman concluded “it appears that Mr. Penny has funded his lifestyle costs (at least in part) through draws from [Bolton], despite its ongoing operating losses, through a draw-down of its historic capital (and its increasing real estate based equity).”

ii. Improper Expenses

[25] Crowe Soberman noted that between 2012 to 2018, Bolton Steel’s expenses for “travel and entertainment and advertising and promotion” increased from 0.035% of its sales to 2.5% of its sales ($275,210 in fiscal 2018). This was during a period in which Bolton ran almost consistent annual losses. Mr. Penny has refused to provide access to the expense reports for these items.

[26] Between 2011 to 2019, Bolton Steel paid $2.8 million in professional fees. On his 2014 cross-examination, Bolton Steel’s auditor indicated that the professional fees to that point related to a tax assessment. It appears that CRA had challenged the deduction of Mr. Penny’s personal expenses for purchase and maintenance of horses from Bolton’s corporate accounts. This, is however, not entirely clear because Mr. Penny has refused to provide any details of the expenses.

[27] In addition, Mr. Penny has refused to provide information that would allow the applicant or the court to determine whether he has been using Bolton funds to pay for his personal defence of this proceeding.

Mr. Penny’s Defences

[28] Mr. Penny offers no real defences to the allegations against him. He points out that the applicant has received over $2,000,000 in dividends. That may or may not be the case. Assuming that it is the case, is irrelevant to whether Mr. Penny has engaged in the financial misfeasance alleged against him.

[29] Second Mr. Penny defends the write offs of shareholder advances as being implemented on the advice of his auditors. As noted above, his auditor’s views on this are substantially more nuanced. An auditor’s view of whether something should be written off turns entirely on its collectability. It has nothing to do with the validity or propriety of the initial advance. Moreover, collectability here depends entirely on Mr. Penny.

[30] Mr. Penny also points to the challenges that the steel industry in Canada has faced in recent years. That too is irrelevant to the propriety of taking corporate assets for personal use, failing to provide audited financial statements, failing to comply with court orders and failing to provide financial information that might demonstrate the validity and propriety of the advances at issue.

[31] Finally, Mr. Penny that points to the fact that the $ 3.3 million shareholder advances was compensation in lieu of salary. Mr. Penny asserts that he and Mr. Koury had discussed a salary for himself of between $300,000 and $400,000 per year. Mr. Penny has, however, provided no support for that salary. By way of example, he has not produced any records that would demonstrate that he was paying himself $300,000 per year while Mr. Henry was active with the corporation. He is not produced any evidence, apart from his bald assertion, that the $3.3 million in debt was paid to him as a proxy for salary. He has produced no evidence to support his allegation that $300,000 per year is an appropriate salary for a business that has almost consistently lost money over the last 10 years.

Oppression –The Law

[32] There is no doubt that Mr. Penny’s conduct amounts to oppression, unfair prejudice and unfair disregard of the applicant’s interests.

[33] Findings of oppression are rooted first in the breach of a reasonable expectation on the part of the applicant.

[34] In [BCE v. 1976 Debentureholders][^3] the Supreme Court of Canada set out the following core analysis for findings of oppression:

…in assessing a claim for oppression a court must answer two questions: (1) Does the evidence support the reasonable expectation the claimant asserts? and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression”, “unfair prejudice” or “unfair disregard” of a relevant interest?

[35] The applicant had several reasonable expectations here that have been breached namely that:

(a) Mr. Penny would cause Bolton to produce audited financial statements as required by the OBCA.

(b) Mr. Penny would cause Bolton to maintain proper financial records and not destroy them.

(c) Mr. Penny would cause Bolton to comply with court orders.

(d) Mr. Penny would cause Bolton to cooperate with his auditors sufficiently to allow the auditors to prepare audited financial statements and would himself cooperate to that end.

(e) Mr. Penny would not cause Bolton to engage in self-interested transactions such as lending $3.3 million to himself only write off the loans as uncollectible.

(f) Mr. Penny would not cause Bolton to engage in improvident financial transactions such as mortgages at higher interest rates than otherwise available.

(g) Mr. Penny would not take inventory from Bolton for himself.

[36] The breach of a reasonable expectation is not, however, on its own, sufficient to establish oppression. The second branch of the BCE test requires the applicant to demonstrate that the breach of the reasonable expectation falls within the terms oppression, unfair prejudice or unfair disregard.

[37] I am satisfied that Mr. Penny’s conduct falls into all three categories.

[38] In BCE, the Supreme Court of Canada described oppression as conduct that is coercive, abusive, burdensome, harsh and wrongful, a visible departure from standards of fair dealing and an abuse of power going to the probity of how the corporation’s affairs are being conducted.[^4]

[39] The Supreme Court described unfair prejudice as conduct less offensive that oppression and included in its description of unfair prejudice “failing to disclose related party transactions, changing corporate structure to drastically alter debt ratios, … preferring some shareholders with management fees and paying directors’ fees higher than the industry norm…. “.[^5]

[40] Mr. Penny submits that this is not a case for personal liability against him. He relies on the Supreme Court of Canada’s decision in [Wilson v. Alharayeri][^6] where the Court set out a two-part test for personal liability. The first branch requires "that the oppressive conduct be properly attributable to the director because he or she is implicated in the oppression". In other words, the director must have exercised, or failed to have exercised, their powers so as to effect the oppressive conduct. The second branch requires "that the imposition of personal liability be fit in all the circumstances".

[41] Mr. Penny meets both branches of the test. He was the sole director of Bolton. It was therefore Mr. Penny who either exercised or failed to exercise his powers to effect the oppressive conduct. Mr. Penny also falls within the second branch of the test. The imposition of personal liability is appropriate here. Mr. Penny was the personal beneficiary of the misconduct. Mr. Penny used personal advances to himself for his own benefit. The write off of those advances was also for his own benefit. To the extent that Mr. Penny takes the position that the transactions were not for his own benefit but for the benefit of a “shareholder” and he is not a shareholder, I reject that submission. The other shareholder is his wife, Marie Penny. Ms. Penny did not defend the application. Moreover, it was Mr. Penny who had to engineer the transactions from a corporate perspective as the sole director.

Remedy

[42] Both sides agree that there should be a buyout of the applicant’s shares. They disagree on the mechanism or valuation for doing so.

[43] The applicant submits Mr. Penny should purchase the applicant’s shares at a price based on the applicant’s interest in Bolton’s real property, the money Mr. Penny took for himself by way of uncollectible loans and the legal costs he improperly took from Bolton.

[44] The applicant’s approach is to take the appraised value of the real estate of approximately $14,000,000, attribute 30% or $4.2 million to the applicant and award the applicant $1,000,000 in compensation for the shareholder loans, inventory and legal costs that Mr. Penny has used Bolton funds to pay. The payment to the applicant will therefore come to a total of $5.2 million

[45] The applicant submits that if Mr. Penny has not paid these amounts to the applicant within 30 days, then the receiver should proceed to sell Bolton’s assets to pay its creditors and distribute the buy out proceeds to the applicant.

[46] Bolton and Mr. Penny submit that the receivership is excessive, that it would be a huge expense for Bolton and is a remedy the Corporation cannot afford. If a receiver is appointed, Mr. Penny and Bolton submit that its power should be limited to that of an investigatory nature and should not include winding up Bolton. They point out that Bolton has 23 full-time employees. The sale of assets would put an end to those jobs. As alternative, the respondents submit that an auditor prepare a proper valuation of Bolton and that Mr. Penny purchase the applicant’s shares at their present-day value. The difficulty with that approach is that it does not take into account Mr. Penny’s oppression. Any valuation of the applicant’s shares must back out the effect of the oppression.

[47] Section 248 (3) of the OBC a permits the court to appoint a receiver manager on an interim or final basis as a remedy for oppression. Section 101 of the Courts of Justice act permits the court to appoint a receiver where it appears just and convenient to do so.

[48] Courts have appointed receivers in oppression cases where it was necessary to preserve the company’s assets and protect the interests of all stakeholders.[^7]

[49] The appointment of a receiver is warranted here. Mr. Penny has shown himself incapable of managing Bolton in a trustworthy manner. He has destroyed financial records, failed to produce audited financial statements, failed to cooperate with his own auditors sufficiently to enable them to produce audited statements, has misused corporate assets for his own purposes and has failed to provide an adequate explanation for the dissipation of millions of dollars of corporate funds.

[50] To the extent there is any intrusion or prejudice to Mr. Penny or Bolton in the appointment of a receiver, the prejudice is entirely of Mr. Penny’s own making.

[51] I do, however, have three concerns with the plaintiff’s approach to valuation. First, it does not take into account anything for Mr. Penny’s compensation during the last 10 years. Second, it would ascribe 30% of the gross value of the real estate to itself. In doing so, it does not take into account the fact that $3.3 million of the mortgages reflect improper loans to Mr. Penny for which the plaintiff is already being compensated by way of its 30% share of those loans. Third, it attributes to itself 30% of the gross value of the real estate when, on a valuation, there would be other factors taken into account in calculating real estate value for purposes of a share buyout, including, among other things, the tax liability on any sale of the property.

[52] I am left in the position of making a financial calculation based on very imperfect information. The alternative to making the calculation myself is to have the receiver do so. Having the receiver do so based on its own investigation would, however, quickly eat into whatever equity remains in Bolton and decrease the amount available for both the applicant and the respondents. At the end of the day, the receiver is not likely to come up with much more of a precise calculation, with the possible exception of the real estate value.

[53] The parties nevertheless require a resolution. I set out below my approach to valuation.

[54] The evidence before me is that Mr. Penny used approximately $2,800,000 in corporate funds to pay for tax assessments related to personal expenditures and potentially the defence of this action. Mr. Penny had the opportunity in this proceeding to produce invoices that would demonstrate the legitimacy of having those expenses charged to Bolton. He failed to do so. I draw an adverse inference against him for his failure and conclude that the expenses were improper. 30% of that amount or $840,000 should be attributed to the applicant for purposes of any buyout.

[55] In addition, the evidence before me shows that the corporation paid interest charges of $2.1 million above and beyond what interest charges would have been at bank financing. Once more, Mr. Penny had the opportunity to explain why the financing he imposed on Bolton was legitimately required and why it was not possible to obtain rates more equivalent to bank type financing. Given that the loans were secured against real estate, one might expect that bank type financing would have been available, unless, the purpose of those loans was sufficiently irregular to make bank suspicious of committing financing. Once again, Mr. Penny had the opportunity to explain himself and did not do so. I draw an adverse inference against him for his failure to explain. As a result, I would attribute 30% of the $2.1 million or $630,000 to the applicant or purposes of any buyout.

[56] I then come to the $3.3 million in shareholder advances. Mr. Penny justifies these advances as a proxy for salary of approximately $300,000 per year. He has provided no evidence to support such a salary. The applicant would attribute no salary to him. In my view that would not be fair. Mr. Penny is entitled to some sort of compensation for the work he has done. At the same time, however, it was up to Mr. Penny to provide evidence of an appropriate salary. He has failed to do so. I would attribute a salary of $100,000 per year to him. I arrive at that number because he is entitled to some form of compensation. In a corporation of this size, with the negative financial returns Bolton experienced one would have thought that the fixed salary component of the compensation would be small but be coupled with a larger bonus component for financial success. I also take into account that Mr. Penny seems to have compensated himself in other ways (such as travel expenses) which the applicant will never be able to determine because the financial records of Bolton have been destroyed.

[57] If I attribute salary of $100,000 a year to Mr. Penny over 10 years, the amount of illegitimate shareholder advances is reduced to $2.3 million. I would ascribe 30% of that or $690,000 to the applicant for purposes of any buy out.

[58] I then come to the land value. Since I have already given the applicant credit for inappropriate shareholder advances reflected in the mortgages on Bolton’s real estate, a buyout should be based on the value of the real estate net of the mortgages. That comes to $8.4 million. The value of the real estate is reflected as its cost of acquisition of $250,000 on Bolton’s financial statements. That would make the net gain on any sale $8.15 million. If the Corporation realized those funds on the sale it would, however, be subject to capital gains tax at a net effective rate of 25% which would leave $6,112,500 available for distribution to shareholders. The applicant would be entitled to 30% of that amount or $1,833,750.

[59] These calculations would produce a buyout value for the applicant’s share of $3,993,750.

[60] I appreciate that these calculations are on the rough and ready side. Any imperfection relating to the calculation for shareholder advances, improper corporate expenses and excess interest are attributable solely to Mr. Penny. I have drawn adverse inferences against him in regard to those expenditures and he will have to live with any disadvantage caused by imperfect calculations in that regard.

[61] The imperfections in the calculation of real estate value fall into a different category. Precisely how land value translates into buy out value for shares is a valuation exercise of some complexity. While I have taken one aspect of that complexity into account with a rough and ready tax calculation, I have done so without the benefit of any expert evidence. I am also aware that even my rough and ready tax calculation has failed to take into account the discount that one would ordinarily ascribe to a tax liability on valuation for purposes of a buy out to reflect the fact that the real property is not actually being sold and taxes are not actually being paid when the buy out valuation is being determined. I am also aware that there are additional calculations like commissions and others beyond my expertise that go into the mix.

[62] In those circumstances I give the parties the following options:

a. They can accept my valuation in which case Mr. Penny can buy out the applicant with the payment of $3,933,750 for its shares. The purchaser on the buyout will either be Mr. Penny, Ms. Penny or another entity of their choosing provided that the choice of entity does not have tax consequences to the applicant any more adverse than a purchase by Mr. or Ms. Penny would have. I am specifically here thinking that it would be improper for Bolton to acquire the shares because that would result in a tax consequence to the applicant that is less advantageous than if Mr. or Ms. Penny purchased the shares.

b. Either the applicant or the respondents can disagree with my approach to the real estate valuation purposes of the buy out. In that case, I order the receiver to determine what amount should be ascribed to the real estate for purposes of buying out the applicant’s shares. The applicant and the respondents will be free to contest that calculation. I will devise a litigation process and timetable for the efficient determination of that issue. Either of the receiver, the applicant or the respondents can approach me for a case conference to address process and timetable.

c. If the respondent contests my real estate valuation but the applicant does not, then the applicant can, if it wishes, also pursue the valuation of any other claims against the respondents for oppression within Bolton that it wishes. In that case, the applicant can, if it wishes, approach me for directions to have the receiver to investigate any other issues within Bolton and have the receiver arrive at a damage figure as best it can for such misfeasance.

[63] The determination of these further issues will be conducted on a highly expedited timetable. Bolton is now under the management of a receiver. That is a very expensive exercise. Every day the receiver is in place means there is less equity to be distributed to either the applicant or the respondent.

[64] I greatly appreciate that my approach to the evaluation set out above is on the rough and ready side. I recognize that it does not meet any gold standard of valuation or accounting. The reason for that, however, is attributable solely to Mr. Penny. If he has managed Bolton in a way to make its financial dealings opaque and has destroyed financial evidence, he is in no position to complain of the imperfection surrounding any valuation exercises.

[65] While my valuation of the real estate is imperfect, the valuation above also ascribes no value at all to the remaining business or inventory. To the extent that the respondent wishes to challenge the real estate valuation, the applicant remains free to ask the receiver to ascribe a value as best it can to the remaining business. The applicant would then be entitled to 30% of that value in addition to whatever value is ascribed to the real estate and in addition to the $2,160,000 in value I have ascribed to Mr. Penny’s financial misfeasance.

[66] Until a final value of the share by it has been determined, the receiver will manage the business of Bolton in the ordinary course. Once a value has been determined, Mr. Penny will have 15 days to pay that amount. If he fails to do so, the receiver may either mortgage the assets of Bolton in an amount sufficient to pay the applicant its shares and costs or sell the assets of Bolton with a view to paying the applicant her shares.

[67] That means Mr. Penny should energetically seek out financing now to buy the applicant out unless he already has funding for that purpose. Mr. Penny is at liberty to explore placing a further mortgage on Bolton’s real estate to effect the buy out. Mr. Penny may not, however, place any further mortgage on the property without the applicant’s approval. The purpose of that condition is to ensure that any financing is paid directly to the applicant and does not give Mr. Penny an opportunity for further oppression.

Costs

[68] The applicant seeks costs on a substantial indemnity basis fixed at $316,549.68. Of that amount, just over $77,000 is attributable to expert’s fees.

[69] In [Selvadurai v. Antony][^8], D. M. Brown J. noted:

When a case management judge gives forward-looking directions for the next steps in a proceeding, the over-arching judicial goal is to secure the fair, timely and cost effective determination of the case on the merits. While the failure of parties to comply with such case management directions or their failure to resolve interlocutory procedural disputes in an informal way may not merit the moniker “reprehensible”, such conduct thwarts the objectives of case management and impedes the ability of the court to secure the fundamental goal of the civil litigation process which is the timely, cost-effective and fair determination of civil cases on their merits. In my view, in case-managed civil proceedings litigation conduct which thwarts, stymies or obstructs the efforts of judges to move the proceeding to a final determination on the merits justifies the award of elevated costs.

[70] I find those comments apposite here. This was a case managed an action. Two previous judges had made orders requiring the production of audited financial statements. Mr. Penny breached both of those orders. The complaints here are of a nature that should never be necessary to bring. The oppression is crude and obvious. This is not a case of a legitimate legal issue on which reasonable people may have differences. This is a case of simple, outright appropriation.

[71] I order Mr. Penny to pay the applicant’s costs which I fix at $316,549.68. If Mr. Penny has not paid those caused by the time the applicant’s shares are bought out, then the receiver shall pay those costs from Bolton’s assets or sale of Bolton’s assets.

[72] I will remain seized of this matter to ensure its completion as quickly as possible.

Koehnen J.

Date: February 9, 2021

[^1]: Business Corporations Act, RSO 1990, c B.16 [^2]: Business Corporations Act, RSO 1990, c B.16 s. 148 (b) [^3]: BCE v. 1976 Debentureholders, 2008 SCC 69 at paras. 56-59 and 95 [^4]: BCE at paras 67, 92-95. [^5]: BCE at paras . 92-95. [^6]: Wilson v. Alharayeri, 2017 SCC 39, [2017] 1 S.C.R. 1037 [^7]: Adshade v TDCI Bracebridge Inc. 2015 ONSC 1275 at para 26; DBDC Spadina Ltd. v. Walton 2013 ONSC 6833 at paras 41-45, 48 and 50; affirmed DBDC Spadina Ltd. v. Walton, 2014 ONCA 428. [^8]: Selvadurai v. Antony, 2014 ONSC 5119 at para. 6