Court File and Parties

Court File No.: CV-17-00011697-00CL Date: 2024-01-24 Ontario - Superior Court of Justice – Commercial List

Re: Basegmez et al., Applicants And: Akman et al., Respondents

Before: Peter J. Osborne J.

Counsel: Patrick Shea, for the Applicants Jonathan Kulathungam, for the Respondents Kyla Mahar, for the Liquidator

Heard: January 23, 2024

Endorsement

Endorsement

1The issue to be determined on this motion in this liquidation proceeding is how certain of the costs that have been incurred by the Liquidator, KPMG, ought to be allocated among the Applicants, BA&B Capital Inc. (“BA&B”) and KAAN Holdings Inc. (“KAAN”) on the one hand, and the Respondents, SAMM Capital Holdings Inc. (“SAMM”) and its controlling shareholder, Ali Akman (“Akman”) on the other hand.

2The parties are all shareholders of Tarn Financial Corporation (“Tarn”). The Applicants hold in the aggregate 60% of the common shares of Tarn, with the remaining 40% being held by the Respondent, SAMM.

3Defined terms in this Endorsement have the meaning given to them in the Tenth Report of the Liquidator dated October 4, 2023 unless otherwise stated.

Background

4This Application was originally commenced by BA&B and KAAN pursuant to sections 207 and 248 of the OBCA to seek an order winding up Tarn and appointing KPMG as Liquidator for that purpose.

5Lederman, J. heard the Application and ordered the winding-up of Tarn on September 15, 2017 and appointed KPMG as Liquidator: 2017 ONSC 5370. The business and assets of Tarn included the Delta Toronto East Hotel as well as other properties. The assets of Tarn were sold in June, 2018.

6SAMM and Akman appealed the Winding Up Order and that appeal was dismissed by the Divisional Court: 2018 ONSC 812.

7The Liquidator brought a motion for approval of a proposed sales process. That motion was adjourned on an unopposed basis to allow the Applicants SAMM and Akman the opportunity, as they had requested, to formalize a settlement in principle that the parties advised the Liquidator had been reached between the Applicants on the one hand and SAAM and Akman on the other.

8That settlement was, however, not finalized, with the result that the sales process motion was brought back on and was heard on November 24, 2017. It was unopposed except for the approval of a marketing and listing agreement between the Liquidator and CBRE. McEwen, J. declined to approve that marketing and listing agreement and directed the Liquidator to retain another agent, adjourning the sales process motion to allow the Liquidator time to do so.

9Five days later on November 29, 2017, McEwen, J. granted the order approving the retention by the Liquidator of Colliers to be the marketing and listing agent and approved the sales process.

10Thereafter, the property was sold and ultimately five distribution orders were granted, among other things.

11I have not set out here the full chronology of what transpired thereafter. It is fully set out in the Tenth Report as well as in more summary form in the Aide Memoire filed on this motion by the Applicants. The Tenth Report, in turn, references the first nine reports, each of which sets out in detail the various steps in this lengthy proceeding to which each such report primarily related.

12The Liquidator issued its Third Report and the Receiver issued its First Report on April 24, 2018. The Liquidator and Receiver brought a motion returnable on May 1, 2018 seeking advice and directions with respect to the ability of the Receiver to terminate various agreements of purchase and sale entered into by Tarn with purchasers of proposed condominium units, an approval and vesting order in respect of an asset purchase agreement between Tarn and Sunray Group of Hotels, an order establishing a procedure for the resolution of disputed deposits, and other relief. The motion was granted by endorsement dated May 9, 2018.

13As set out in the Fifth Report, the Liquidator and Receiver brought a motion returnable on July 26, 2018 authorizing and approving a distribution to certain secured creditors and approving the fees and conduct of the Receiver and Liquidator and its counsel from January 1, 2018 to April 30, 2018 and is set out in the Third, Fourth and Fifth Reports.

14The distribution order was granted on July 26, 2018, but at the request of SAMM and Akman and on the consent of the Liquidator and Receiver, the motion seeking approval of the fees and conduct of the Liquidator and Receiver was adjourned in order to permit SAMM and Akman additional time to review the fees and dockets supporting the fee approval motion.

15On September 14, 2018, counsel for those parties advised the Liquidator and Receiver that they were not opposing approval of the fees and conduct, and those were approved by order dated October 1, 2018.

16A second distribution, as described in the Sixth Report, was brought returnable on November 6, 2018 and, returnable on the same date, the Applicants brought a motion for an order declaring void and setting aside certain Class B voting shares and the issuance of such shares to Akman, and declaring void and setting aside certain guarantee and related agreements that Akman caused Tarn to enter into for the benefit of SAMM, which at the time were being relied upon by Akman and SAMM in support of a secured claim asserted against Tarn.

17On November 6, 2018, the second distribution order was granted and the motion of the Applicants was initially adjourned and then resolved on consent resulting in a consent order. That consent order declared that all charges and mortgages granted by Tarn in favour of SAMM were postponed and subordinated to the claims of third-party unrelated creditors such that the Liquidator could effect a distribution to all such creditors free and clear of the SAMM Security.

18That consent order was without prejudice to the position of the parties, including as to the validity of the SAMM Security as against the Applicants and the relative priority of the claims of the Applicants, which were to be determined at the same time as any disputes regarding the quantum of the claims being asserted against Tarn by SAMM and the Applicants.

19Finally, the consent order declared the Class B Shares to be void ab initio and the Articles of Incorporation of Tarn were amended accordingly to remove the Class B Shares.

20Further motions for a third distribution, and relief in respect of the Tarion Cash Collateral as well as other relief, were brought and granted.

21On April 23, 2019, the Applicants brought a motion for an order authorizing and directing the Liquidator to make an interim distribution to the Applicants in an amount equal to 85% of the amount of the Applicants’ claim as set out in the Sources and Uses Report. That motion was initially opposed by the Respondents, although ultimately, the Applicants and the Respondents agreed to an interim distribution in an amount equal to 75% of the shareholder loan claims in the amount of $3 million for KAAN, $6 million for BA&B, and 75% of $2,570,000 to SAMM, each such amount being described as an Eligible Shareholder Loan Claim.

22Those further interim distributions were approved by the Court in the Fourth Distribution Order dated April 30, 2019.

23A trial to determine the disputed Non-Arms Length Claims, as defined in the Claims Procedure Order approved by the Court on April 13, 2018, was scheduled to be heard in June, 2019. It was adjourned, numerous times, and ultimately the trial proceeded before Koehnen, J. for eleven days commencing on November 15, 2021 and ending on May 31, 2022. Reasons for Judgment were issued on August 9, 2022: 2022 ONSC 4127. Koehnen, J. invited the parties to make submissions on costs.

[24] In his Reasons, Koehnen, J. found, among other things, (also as set out in the Tenth Report) that: a. the Respondents were not entitled to charge a development fee or hotel management fee and that any amounts paid by Tarn Financial and/or Tarn Construction in respect of those fees should be treated as repayments against SAMM’s shareholder loan; b. claims for reimbursement of the contested expenses should be dealt with as set out in the Reasons; and c. the calculation of the amounts owing on account of SAMM’s shareholder loan should include amounts that Akman advanced to Tarn Construction either personally or through his personal corporations.

25Both the Applicants and the Respondents made costs submissions to Koehnen, J., who issued his costs endorsement on January 13, 2023 that awarded costs of the trial to the Applicants other than their costs associated with the res judicata motion that had been heard by McEwen, J. Those costs were awarded to the Respondents.

26Importantly for the purposes of this motion, Koehnen, J. determined that it would be inappropriate for him to weigh in on the allocation of the fees of the Liquidator and that, instead, any ruling on the allocation of those fees should be made at the hearing to approve those fees.

[27] Subsequently, the Applicants requested that the Liquidator provide an allocation of the fees incurred by the Liquidator and its counsel together with the fees of other third parties in connection with three categories of work: a. the trial and trial preparation; b. the work undertaken in order to prepare the report on the sources and uses of monies during the period from July 7, 2014 to September 30, 2017 pursuant to section 2(h) of the Winding Up Order (the “Sources and Uses Report”); and c. accounting, bookkeeping and tax matters, in support of a motion by the Applicants seeking an order that those fees be borne in full by the Respondents as a result of the Reasons and the Costs Endorsement.

28The Liquidator provided its allocation of the fees as above, but not its views, with respect to responsibility for the fees incurred in relation to each of the above three categories of fees.

29On May 19, 2023, the Liquidator issued its Ninth Report (the Seventh Report of the Receiver). Based on that Report, the Liquidator and Receiver brought a motion returnable May 30, 2023 seeking an order, among other things, approving the activities and conduct as set out in the Ninth Report and approving the fees and disbursements of the Liquidator and Receiver, and its counsel for the period January 1, 2019 to April 30, 2023 as well as an accrual for estimated fees and disbursements to be incurred through the completion of the Winding Up Proceedings and the Receivership Proceedings.

30The Ninth Report also provided information on the allocation of the fees in respect of the three categories set out above.

31At the return of the motions on May 30, 2023, McEwen, J. requested further information from the Liquidator on the quantum of fees in relation to each of the three categories that are due to, or attributable to, the actions of the Respondents and, in particular, relating to mismanagement or “improper self-dealing” by them.

32The Respondents took the position that the information should be provided in the form of a further report to the Court, and McEwen, J. agreed, with the result that the matter was adjourned to August 24, 2023.

33The Discharge Order was granted by McEwen, J. on the basis that, among other things, the basis for distributing the remaining funds would be determined at the motion for the allocation of fees.

The Liquidator's Tenth Report

34As against that lengthy and complex background, the Liquidator issued its Tenth Report addressing the allocation of fees. Its methodology for doing so is set out in the Tenth Report beginning at paragraph 50. I am satisfied that that methodology was appropriate and fully responsive to the directions of McEwen, J.

[35] In summary, the Liquidator and its counsel allocated their respective fees and disbursements as follows (amounts are inclusive of HST): a. trial and trial preparation: $210,683.98 plus $203,725.10; b. forensic: $777,874.77 plus $29,277.17; and c. accounting, bookkeeping and tax: $133,422.21 plus $28,382.78.

[36] In addition, Tarn Financial incurred fees from third parties who assisted it and/or the Liquidator with respect to certain accounting, bookkeeping and tax matters as follows: a. Richter LLP: work undertaken including to prepare financial statements and income tax returns for Tarn Financial: $372,849.59; b. BDO Canada LLP: work done to re-create the financial records of Tarn Financial: $129,566.03; and c. Thas Thambapillai, the controller of Tarn Financial: work done to complete the financial statements and provide the Liquidator with CRA audit assistance: $44,635.

37It is these fees that are the subject of this motion as to how they should be allocated among BA&B and KAAN as Applicant shareholders of Tarn Financial and SAMM as the Respondent shareholder.

38The Applicants do not dispute that all of the fees associated with the general administration and liquidation of Tarn Financial ought to be borne by those three parties in proportion to the percentage of their respective shareholder interests in Tarn Financial (i.e., 60% as to the Applicants together and 40% as to the Respondent).

[39] However, the Applicants submit that three categories of additional costs should be allocated to SAAM/Akman, being: a. trial and trial preparation; b. accounting/bookkeeping/tax; and c. the Sources and Uses Report.

[40] The Applicants submit that Koehnen, J. observed in his endorsement on costs referred to above that it would be inappropriate for him to weigh in on the allocation of the fees of the Liquidator since he “simply [did] not have any information on that issue”. Koehnen, J. went on to state: I can readily see that the Liquidator’s final report for the approval of its fees or the Liquidator’s response to any request for an unequal allocation of fees would be relevant to that issue. If, by way of example, the Liquidator’s evidence were that it spent an inordinate amount of time on the liquidation because of issues or difficulties raised by the Respondents, then it might well be appropriate to order an unequal allocation of fees.

41The Liquidator’s final report for the approval of its fees is the Tenth Report, prepared expressly at the subsequent direction of McEwen, J. specifically to inform these issues and particularly to provide the Court with its opinion, as an Officer of the Court, on the quantum of costs in relation to the three categories that were “due to or attributable to the actions of SAMM/Akman and, in particular, to mismanagement or “improper self-dealing” by SAMM/Akman”.

42After setting out the quantum of fees and disbursements for the Liquidator and its counsel as above, the Tenth Report explains the basis for each of the categories of fees.

43With respect to fees incurred in relation to the Trial and preparation for that Trial, the Tenth Report states that the main focus of the Trial was whether Akman was entitled to charge a development fee or a hotel management fee, in respect of which issues the Respondents were unsuccessful at Trial.

44The basis for that finding is set out at paragraph 54 of the Tenth Report, and that informs the view of the Liquidator that those fees would not have been incurred but for the position of the Respondents and the necessity of the trial in respect of the issues. Koehnen, J. found that “Akman has not demonstrated on a balance of probabilities that there was an agreement to pay him development or hotel management fees. Both fees involve self-interested contracts that were not approved by independent directors or shareholders as they were required to be …”

45With respect to forensic fees, these fees related to the mandate and authorization of the Liquidator to conduct a review of what monies were transferred in and out of Tarn Financial, pursuant to paragraph 2(h) of the Winding Up Order which was the very reason the Sources and Uses Report was prepared by the Liquidator. The breakdown of the fees is set out in the Tenth Report beginning at paragraph 57. The Liquidator concludes that the fees incurred in relation to the Sources and Uses Report ought to have been in the range of $250,000-$300,000, as against the amount incurred of $523,900.21.

46The Liquidator concludes that the additional fees, in the range of $223,900.21 to $273,900.21, were incurred as a result of the lack of proper record keeping. The accounting books and records of Tarn Financial were poorly organized and incomplete. I pause to observe that this included such relatively basic things as these: cash balances were not reconciled to the bank; certain cheques, wire transfers and other payments were not recorded in the general ledger; and corporate credit card activity was not fully recorded in the general ledger. Additional information not contained in the accounting books and records was provided by Akman.

47Fees in relation to creating a backup of the accounting books and records, including the general ledger, were necessary in order that the backup could be used to undertake the analysis in support of the Sources and Uses Report. However, the Liquidator concluded that the fees associated with that exercise were customary and would have been incurred even if the Liquidator had not been directed to prepare the Sources and Uses Report since the backup would have been required in any event.

48The balance of the other fees incurred in relation to the Sources and Uses Report totaling $234,891.69 were incurred in respect of various tasks as set out at paragraph 63 of the Tenth Report. The Liquidator concludes that most of these other fees would not have been incurred but for the state of the accounting books and records, and ultimately concludes that additional fees in the range of $209,891.69 to $214,891.69, together with additional fees of its counsel in the range of $19,277.17 to $21,777.17, were incurred as a result of the lack of proper record keeping.

49With respect to fees for accounting, bookkeeping and tax, most of the fees incurred by the Liquidator were payable to third parties (i.e., Richter, BDO and Thas) with the balance having been incurred directly.

50The Liquidator is of the view that incremental fees in the amount of $56,952 were incurred in relation to the 2016 review engagement as a result of the state of the accounting books and records, incremental fees in the amount of $14,407.50 were incurred for 2017, and no incremental fees were incurred in relation to the 2018 review engagement.

51With respect to the tax related fees, the Liquidator is of the view that the incremental fees in the range of $42,746.63 to $48,679.13 were incurred for 2016 as a result of the state of the books and records in the improper corporate tax status; incremental fees in the range of $37,265.62 to $43,198.12 were incurred for 2017, and no incremental fees were incurred in relation to the 2018 tax returns.

52The Liquidator is of the view, based on information from Richter, that significant incremental accounting and tax consulting work was required particularly in respect of the 2022 taxation year to reflect, among other things, the payments made to Akman on account of development fees and hotel management fees as repayments against SAMM’s shareholder loan as set out in the Reasons of Koehnen, J., and reverse amounts owing to and from Akman and related companies that will not be paid as a result of the Reasons, and consider the tax impact of same. All of this results in the Liquidator’s conclusion that incremental fees in the range of $62,150-$91,812 $0.20 were incurred as a result of changes required to the accounting books and records as a result of the Reasons.

53The Liquidator states that it does not have a view on whether the BDO fees incurred to re-create the general ledger for 2017 were due or attributable to the actions of the Respondents and in particular, the allegations of mismanagement or improper self-dealing by them.

54With respect to the fees of Thas, the Liquidator is of the view that fees in the amount of $44,635 were as a result of the books and records not being properly maintained by the then controller who reported to Akman.

55Finally, the fees of the Liquidator and its counsel in respect of accounting, bookkeeping and tax matters were also significant. The liquidator concludes that minimal fees would have to have been incurred in relation to this category but for the issues being addressed by the work performed by BDO and Thas and for the challenges associated with the review engagements in the preparation and filing of tax returns. As a result, the Liquidator estimates that its fees under this category would have been 10% to 20% of the fees incurred, with the result therefore that fees in the range of $106,737.77 to $120,079.99 were incurred as a result of the above-noted issues. Similarly, its counsel would not have had any fees associated with these matters but for those issues, with the result that counsel fees in the additional amount of $28,382.78 would not have been incurred.

56The Liquidator then responded to specific questions posed by the Applicants (through counsel) in the Supplement to the Tenth Report.

57As observed above, the Applicants do not dispute that the costs associated with the general administration of the liquidation of Tarn Financial ought to be borne by all shareholders based on their percentage interest in the company, and that the dispute on this motion relates to the fees and disbursements for trial costs, accounting/bookkeeping/tax issues in the preparation of the Sources and Uses Report.

58The Respondents were clear in submissions that there is no challenge to either the quantum of the fees charged or the activities to which they relate. The only issue is the proper allocation between and among the shareholders.

59The Respondents take the position that they ought not to be disproportionately responsible for the work related to or arising from the poor state of the books and records, since such would require an inferential finding by this Court that Akman was responsible for the poor bookkeeping itself, something this Court cannot do since that issue was before Koehnen, J. The Respondents further submit that there were no findings of improper dealings made by Koehnen, J., and that whatever costs were reserved (pursuant to paragraph 15 of the Costs Endorsement), those did not and cannot include trial costs.

60The Respondents did concede in submissions that they ought to be responsible for the fees incurred with respect to the refiling of the tax returns and particularly those in respect of the 2022 taxation year as set out at paragraph 76 of the Tenth Report.

Analysis

61I cannot accept the position advanced by the Respondents. In my view, and while (as the parties consent) the “general” administration costs (i.e., those related to the operation of the business by KPMG, the sale of its property in the administration of third-party claims against the company) should be borne by the shareholders in proportion to their respective interests, the three categories of disputed costs are the responsibility of the Respondents SAMM/Akman.

62With respect to trial and trial preparation costs, KPMG is clear in the Tenth Report that these fees were incurred as a result of the trial resulting in finding that self-interested contracts with Akman and/or his related entities were not properly approved (i.e., self-dealing by the Respondents) (para. 55).

63Moreover, KPMG is clear that, as submitted by the Applicants, between $393,274 and $448,144 of the accounting, bookkeeping and tax related costs are attributable to the actions of the Respondents. The same is true with respect to the Sources and Uses Report and the fees of at least somewhere in the range of $453,068 and $510,568.

64Finally, in this regard, KPMG agreed in the Supplement to the Tenth Report that if the Sources and Uses Report was directed to be prepared as a result of the self-dealing of the Respondents, then $778.000 (of the $807,150) is attributable to that misconduct of the Respondents.

65I am satisfied that this was precisely the purpose of the Sources and Uses Report. KPMG was clear, and I agree, that it would not be normal or usual for a liquidator to be directed by the Court (as it was here) to produce such a report. No such power or authorization is found, for example, in the Model Order of the Commercial List and this is not surprising.

66The work that underpinned that report related - just as the name implies - to a forensic investigation as to both the sources and then subsequently the uses of the funds in question. Such an expansive forensic accounting exercise would not typically be required in a receivership. Where, for example in an investigative receivership, or in a particular receivership where there were allegations of fraud, self-dealing or other misconduct such that it was integral to the administration of the estate that the receiver investigate and report on such activities, it would be both typical and, in my view, within the reasonable expectation of the parties, that those parties ultimately found to have engaged in such conduct ought to be responsible for such fees.

67In my view, that is what occurred here and was the very reason that the requirement for the preparation and production of the Sources and Uses Report was added to the terms of the Winding Up Order. Indeed, the foundation for the Winding Up Order on the whole was this very misconduct. Lederman, J. was clear that while a winding up order is a drastic remedy, there appeared to be no alternative particularly because “the applicant shareholders have a justifiable lack of confidence in the conduct of Akman” and that they “simply want out because of serious misconduct by Akman in his deliberate violations of the OBCA, blatantly disregarding the rights of the other shareholders, and engaging in improper self-dealing.” (para. 49).

68Lederman, J. found, among other things, that: “the breaches by Akman of his statutory obligations as sole officer and director of Tarn Financial and in particular his self-dealing and use of Tarn Financial as a personal bank account were not within the expectation of the parties” (para. 42). Lederman, J. went on to find that Akman “abused his powers by engaging in self-dealing transactions that have diverted millions of dollars out of Tarn Financial for his personal benefit and has indicated a clear intention to continue to operate the company without any regard to the interests … or his statutory obligations” (para. 43).

69On appeal to the Divisional Court, Myers, J. was equally clear about the conduct of the Respondents. (See paras. 14, 18-19, 25-26).

70This is not the forum in which to attempt to relitigate matters that have already been determined. Given those determinations, now informed for the purposes of this motion (also as previously directed by this Court) by the contents of the Tenth Report and the Supplement thereto, I am in a position to determine responsibility for the three disputed categories of fees.

71In short, I am satisfied here that it was the self-dealing of the Respondents as well as the failure to keep proper books and records that necessitated the direction by the Court to KPMG to conduct the review of the monies in and out (i.e., sources and uses). That in turn was the foundation for the trial that took place before Koehnen, J. resulting in the findings highlighted above.

72I do not accept the submission of the Respondents that because Koehnen, J. made no express finding that Akman was responsible for the poor state of the books and records of the company that the Respondents ought to bear no responsibility for the work done to rectify the situation. It is clear in my review of the record that, contrary to the submission of the Respondents, not all of the relevant transactions are in fact reflected in the books and records.

73For example, a review of the non-consolidated balance sheet for the fiscal period ending December 31, 2015 refers, among other things, to assets and within that category, to advances to related corporations in the amount of $81,667. Readers are directed to the Notes to Financial Statements and in particular, Note 10(b). Yet that Note, which references advances to Akman-related corporations (on an unsecured, non-interest-bearing basis without any fixed terms of repayment), do not match the amounts ultimately determined and reflected by KPMG and set out in the Tenth Report, including, for example, advances to foreign entities and offshore payments of approximately $1.2 million. Akman was responsible for the management and operations of the company and the reporting in respect thereof.

74In short, the whole analysis and all of the work would have been unnecessary but for the self-dealing by the Respondents and the fact that the books and records of the company, which they maintain, failed to reflect all of the relevant transactions with the result that rectification work was required to be undertaken by the Liquidator.

75I accept the findings and conclusions of the Liquidator as set out in the Tenth Report and the Supplement. In particular, I accept both the quantum of fees and disbursements incurred by and on behalf of the Liquidator and the activities to which they related, which as noted above are fairly conceded by the Respondents as being appropriate and are not challenged.

76I further accept the conclusions of the Liquidator about the necessity for the three disputed categories of fees and disbursements and the fact that it was the conduct (or misconduct) of the Respondents that brought about that necessity. I pause to observe that the Respondents did not file any materials in response to the Tenth Report (or the Supplement thereto). Accordingly, they have put forward no evidence on this motion to challenge the findings and conclusions of the Liquidator.

77Having reviewed all of the materials and heard extensive submissions from the parties, I am unable to conclude that it would be equitable or fair to require that these fees and expenses be born other than by the respondents. To direct that some of these fees and disbursements should be borne by the Applicants (in addition to their proportionate share of the general administration costs) would in my view amount to an improper redistribution in that it would reward at least in part the Respondents for their misconduct and result in an order that required the Applicants to bear some of the costs necessitated by that misconduct. In my view, that would not be just or equitable in the particular circumstances of this case.

Result and Disposition

Result and Disposition

78The “general” administration costs of the liquidation (fees incurred with respect to the operation of the business of Tarn Financial by KPMG, the sale of its property in the administration of third-party claims against it) are to be borne by the shareholders in proportion to their respective interests (i.e., 60% by the Applicants and 40% by the Respondents).

79The Respondents SAMM/Akman shall bear full responsibility for the three categories of disputed fees totaling $1,650,620 in respect of trial and trial preparation, accounting/bookkeeping/tax, and the Sources and Uses Report.

80The parties were clear in submissions that neither was seeking costs of this motion (and nor was the Liquidator), and as such, there is no order as to costs.

Osborne J.