Court File and Parties

COURT FILE NO.: CV-22-00689816-0000

DATE: 20230921

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kenneth Davies, Applicant

AND:

Cancom Global Security Inc., Cancom Advanced Integration Inc., Ronald Wells, Keith Wells and Paul Baziuk, Respondents

BEFORE: Justice Papageorgiou

COUNSEL: Ikenna Aniekwe, for the Applicant

Matthew Walwyn, for the Respondents

HEARD: September 20, 2023

ENDORSEMENT

[1] This is an oppression Application brought by the Applicant. The Application was issued on November 7, 2022. The Applicant pleads that he was a shareholder of the corporate defendants, that he was also the Chief Operating Officer and that he was terminated when he identified financial irregularities.

[2] There have been a number of case conferences. The Applicant first sought to schedule a date to be reinstated in the corporation pursuant to the Oppression Remedy section of the OBCA. The date was not scheduled for the reasons set out in Centa J.’s endorsement dated November 16, 2022.

[3] Then, the Applicant sought to schedule a motion for production of books and records pursuant to Part XI of the Business Corporations Act. Merrit J. ordered that the parties should be directed to a case conference.

[4] Today, the Respondents’ counsel raised the issue that the Applicant had not served and filed any affidavit in support of the Application. The Applicant’s counsel pointed out that r. 39.01(2) does not require an affidavit to be served with the Application; rather, it must be served 7 days before the hearing of the Application. In a case like this one, if that rule were literally followed, the hearing of the Application would inevitably be postponed because of the complexity of this matter.

[5] Thus, while the Applicant is not strictly speaking required to serve an affidavit with the Notice of Application, as a practical matter, it must be done to get the ball rolling.

[6] Having said that, the Applicant provided a copy of a shareholders agreement as part of his Case Conference Brief. This shareholders agreement sets out information rights which the Applicant has. Unless this document is a forgery, it seems pretty clear that pursuant to this shareholders agreement and the OBCA, the Applicant will be likely be entitled to the relief he seeks in terms of the motion for production of books and records. The reason, of course, that he is seeking this is to support his claim as to irregularities. He says he cannot prove a significant element of his case without these documents which are in the full control of the Respondents.

[7] I also point out to the parties that the recent case Miller v. Ledra, 2023 ONSC 4656 sets out powers regarding orders that a case conference judge can make at a case conference. It is well known that there is a backlog. There has been a culture shift since Hryniak and case conference judges are empowered to curtail summarily deliberate tactics that undermine the administration of justice. I am not saying that there have been any such tactics in this case, but in my view, requiring the Applicant to book a short motion for production of documents which cannot be scheduled for a year and a half would undermine the administration of justice.

[8] Thus, there are a number of orders I am making to move this matter along:

[9] First, even though the Applicant says that he requires the books and records to prepare his Affidavit, he should prepare at least a first affidavit which sets out with evidence what he says has happened and the evidentiary basis for the relief he seeks. He shall do so by October 5, 2023.

[10] As well, the Applicant shall send the Respondents’ counsel a letter setting out the specific provisions that entitle him to the production order, any provisions of the OBCA he relies upon as well as direction as to what books and records he seeks specifically.

[11] Then the parties shall reattend a case conference with me on October 23, 2023 at 9:00 for a further case conference. The parties shall send my assistant copies of the affidavit in support of the Application, the letter setting out the production request.

[12] The parties should attempt to resolve this issue of production prior to the case conference.

[13] If they do not and attend over a matter which involves an order that I subsequently determine should not have been resisted by the Respondents, thus requiring the court to devote scarce to such an issue, there will likely be costs.

[14] Regarding the scheduling of the Application, the parties may still attend for that purpose if they deem advisable.

Papageorgiou J.

Date: September 21, 2023