ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Pinetree Catering Inc. and 1974809 Ontario Inc. o/a Nomad
V. Popescu, for the Plaintiffs
Plaintiffs
- and -
Con-Form Holdings Limited
C. Carr, for the Defendant
Defendant
HEARD: November 20, 2025,
at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Decision On Motion
Overview:
1This is the Plaintiffs’ motion to add Douglas Vanderwey as a party defendant in this action and to amend the Statement of Claim.
2The amendments sought to the Statement of Claim plead oppressive conduct by the corporate Defendant and Vanderwey (collectively, the “Defendants”) and seek additional relief.
3In this action the Plaintiffs seek a declaration that a negotiated, but not fully signed, commercial lease agreement with the Defendant, Con-Form Holdings Limited (“Con-Form”) constitutes a valid and binding agreement between them with respect to 127 Algoma Street South, Thunder Bay (the “Property”). Various damages are claimed, including special damages, breach of contract and breach of the duty to act in good faith.
4No Certificate of Pending Litigation was ever sought with respect to the Property, likely because specific performance of the agreement was not claimed. The Property was sold on April 11, 2025.
5The Plaintiffs seek to add Vanderwey as a defendant because he has been the sole controlling mind of Con-Form since the death of the previous sole shareholder, officer, and director. Mr. Vanderwey is said to be causing the sale of the properties owned by Con-Form, thereby jeopardizing the Plaintiffs’ ability to recover any judgment granted in the action. The Plaintiffs allege that both Vanderwey and Con-Form are acting in a manner that unfairly disregards their interests as potential/contingent creditors of Con-Form, should their claim be successful. They rely on the oppression remedy under s. 248 of the Business Corporations Act, R.S.O. 1990, c. B.16. (“OBCA”). They seek various relief for oppression, including a requirement that a reserve be set aside to satisfy any judgment obtained.
6The Defendants dispute Vanderwey’s addition as a party and the proposed amendments to the Statement of Claim. They argue that the Plaintiffs are attempting to improperly pierce the corporate veil by adding Vanderwey as a party to the action. They further argue that the oppression remedy is either not available to the Plaintiffs, or if it is, it is plain and obvious that the claim cannot succeed.
7The Plaintiffs state that they do not seek to pierce the corporate veil, but that their claims to add Vanderwey and other amendments to the Statement of Claim are founded solely in the oppression remedy under s. 248 of the OBCA.
8The questions I must determine are:
a. whether it is plain and obvious that the Plaintiffs do not have standing to succeed in a claim for oppression?
b. whether it is plain and obvious that a claim for oppression cannot succeed?
c. whether Vanderwey should be added as a party to the claim?
9For the reasons set out herein, leave is not granted to add Vanderwey or to amend the Statement of Claim as proposed. The motion is dismissed.
Facts:
10In January 2024, the President and Vice-President of the Plaintiff, Pinetree Catering Inc. (“Pinetree”), met with Patrick Gamble, President and sole Director of Con-Form, to inquire as to the possibility of entering into a long-term commercial lease agreement with Con-Form to operate a catering and restaurant business out of the Property.
11On January 31, 2024, the parties met again. Pinetree alleges the meeting resulted in substantial agreement as to the terms of a lease with respect to the Property. Further site visits were subsequently conducted. Both parties engaged their counsel, and a draft commercial lease agreement was prepared by Con-Form on February 8, 2024.
12The terms of the February 8th draft provided for:
a. A five (5) year lease term;
b. Rent at $9 per square foot annually, based on a rental of 8500 square feet, or $76,500 annually ($6,375 monthly);
c. Pinetree was to have the option to purchase the Property exercisable at the end of the term of the lease;
d. Pinetree was to have a right of first refusal to purchase the Property prior to the end of the term of the lease, if Con-Form wished to sell it;
e. Pinetree was to take possession April 1, 2024; and
f. Pinetree was to have a right of renewal of the lease;
Various other terms were included.
13Negotiations continued, which resulted in amendments to the February 2024 draft. These amendments did not significantly impact the terms set out above but provided for various repairs and improvements that were required to the property.
14Pursuant to the discussions between the parties, Pinetree also had obligations with respect to the retrofitting of the Property for the catering and restaurant operations.
15Further drafts of the lease agreement were exchanged. On March 8, 2024, Pinetree accepted and signed the final version of the lease and provided its counsel with the deposit required by the agreement. Shortly thereafter, Con-Form provided Pinetree with keys to the Property.
16Con-Form did not sign the final version of the lease agreement. Pinetree alleges that on March 11, 2024, there were discussions between Gamble and Mantis (President of Pinetree) in which Gamble committed to having the lease agreement signed. The Plaintiffs further allege that in reliance upon Gamble’s statement, Pinetree purchased commercial equipment to permit it to operate a restaurant facility at the Property and hired the necessary contractors and subcontractors to begin the work. Designers, architects, and engineers were also hired by Pinetree to begin work. More significantly, the Plaintiffs terminated the existing lease for the premises in which they had been operating on Bay Street, Thunder Bay. In other words, despite Con-Form not signing the lease agreement, the Plaintiffs conducted themselves as if it had been signed.
17Pinetree alleges that on March 13, 2024, it was advised by its counsel that Con-Form was going to sign the lease agreement signed by Pinetree on March 8th.
18On or about March 18, 2024, Con-Form advised that it was seeking an amendment to the renewal term. Further discussions were had, but the parties could not reach an agreement. On March 22, 2024, Gamble advised Con-Form was “walking away from this deal and will not sign”. The Plaintiffs allege having sustained significant damages as a result, including but not limited to loss of profits because they no longer had a location for “Nomad”, the restaurant part of the business.
19The action was commenced on November 13, 2024, and defended by Con-Form on October 22, 2025.
20On February 8, 2025, Gamble passed away. Vanderwey became the sole Director of Con-Form. He had no previous known affiliation with Con-Form.
21Vanderwey began engaging in real property transactions on behalf of Con-Form. Real properties owned by Con-Form have, and continue to be sold. There is no allegation that the money realized from these sales has been paid out to Vanderwey or anyone else. Regardless, the Plaintiffs are concerned about their ability to collect on any judgment they may be successful in obtaining.
Analysis:
Pleadings Amendments:
22Rule 26.01 of the Rules of Civil Procedure, R.R.O., Reg. 194, as amended, requires the court to grant leave to amend a pleading on such terms as are just, unless prejudice would result that cannot be compensated for by costs or an adjournment.
23It is also helpful to consider Rule 5.04(2), which deals with the addition, deletion or substitution of parties and uses the same language as Rule 26.01 with respect to prejudice. Rule 5.04(2) reads as follows:
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
24The Plaintiff argues that prejudice is the only barrier to the amendments being granted because the proposed amendment discloses legally sufficient claims.
25In addition to prejudice, leave to amend a Statement of Claim should not be granted if it is plain and obvious that the amendment discloses no reasonable cause of action or lacks a legal foundation: Carom et. al. v. Bre-X Minerals Ltd., et. al., 41 O.R. (3d) 780, at para. 11.
26On the other hand, if there is a “chance” that a plaintiff might succeed, they “should not be driven from the judgment seat”: Carom, at para 12, citing Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321, at p. 980.
27In determining whether the proposed amendment constitutes a legally sufficient claim, I cannot consider any evidence. Assuming the Plaintiffs can prove the allegations pleaded, I must determine whether they have established a cause of action entitling them to some form of relief from the Defendants or is it plain and obvious that the Plaintiffs cannot succeed? Dawson v. Rexcraft Storage and Warehouse Inc., at para. 9.
Oppression Claims:
28I turn now to whether it is plain and obvious that the Plaintiffs have no reasonable cause of action because the allegations in the proposed Amended Statement of Claim are legally insufficient to establish an oppression remedy claim against the Defendants.
29Section 248(1) and (2) of the OBCA authorizes a complainant to apply to the court for relief to rectify any situation in which:
a. any act or omission of the corporation or any of its affiliates, effects or threatens to effect a result;
b. the business or affairs of the corporation or any of its affiliates are, have been or are threatened to be carried on or conducted in a manner; or
c. the powers of the directors of the corporation or any of its affiliates are, have been or are threatened to be exercised in a manner,
that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer of the corporation.
30For an oppression remedy claim to succeed under s. 248 of the OBCA:
a. the person(s) claiming oppression must be a “complainant” within the meaning of s. 245 of the OBCA;
b. the complainant must identify the expectations it claims have been violated by the conduct at issue and show that those expectations were reasonably held; and
c. The complainant must show that these objectively reasonable expectations were violated by corporate conduct that was oppressive or unfairly prejudicial to or that unfairly disregarded the interests of any security holder, creditor, director, or officer.
See: OBCA, s. 245; FNF Enterprises Inc. v. Wag and Train Inc., 2023 ONCA 92, at paras. 31 and 41; Wilson v. Alharayeri, 2017 SCC 39, [2017] 1 S.C.R. 1037, at para. 24.
Are the Plaintiffs Complainants?
31A “complainant” is defined in s. 245 of the OBCA as including a current or former registered or beneficial holder of a security of a corporation, a current or former director or officer, or “any other person who, in the discretion of the court, is a proper person to make an application under this part”.
32Creditors are not complainants as of right under s. 245 of the OBCA. The Court has discretion to determine whether a particular creditor is a complainant. This determination must be made having regard to the circumstances of the case: Royal Trust Corp. of Canada v. Hordo, 1993 CarswellOnt 147, at para. 14; Devry v. Atwood’s Furniture Showrooms Ltd., at paras. 23 and 24; and Levy-Russell Ltd. v. Shieldings Inc., at para. 72.
33Creditors, actual and potential have been found to be included in the category of “any other person”: Torres v. MGL Properties Ltd., 2021 ONSC 8239, at para. 16 and para. 20; Cohen v. Cambridge Mercantile Corp., at para. 34. It is this category that the Plaintiffs rely on for their standing as “complainants”.
34The Defendants argue that the Plaintiffs are not complainants because at best, they are non-judgment contingent creditors for an unliquidated claim for damages. The Plaintiffs are making an unliquidated and speculative claim for damages. The Defendants argue that at the time of the alleged oppressive conduct (the real property transactions), at best, the Plaintiffs had a contingent interest for an uncertain claim of unliquidated damages. There was no legitimate interest in the management of Con-Form’s affairs.
35Status as a potential creditor must pre-date the alleged oppression and must not be created by the conduct being complained about: Torres, at para. 22, citing Apotex Inc. v. Laboratories Fournier S.A. at para. 42. I find that the Plaintiffs’ status as a contingent creditor for unliquidated damages claims did pre-date the alleged oppression complained of and was not created by the conduct being complained about.
36Whether a claim for unliquidated damages is sufficient for a person to become a “complainant” within the meaning of s. 245 of the OBCA has been the subject of some discussion in the caselaw.
37In Torres, the plaintiffs relied on Tannis Trading Inc. v. Coldmatic Refrigeration of Canada Ltd., (2010) 85 B.L.R. (4th) 77 (Ont. SCJ), a decision of the Divisional Court, at paras. 26-27, as support for their argument that complainants may include contingent creditors who have an unliquidated claim at the time of the alleged oppressive conduct.
38In Tannis, the Divisional Court rejected the defendants’ argument that a creditor for an unliquidated claim is not entitled to a remedy because debt actions should not routinely be turned into oppression actions. The Divisional Court noted that circumstances in which a creditor has been granted relief include when those in control of the corporation have stripped it of assets or dissipated assets rendering it immune to judgement. Specifically, in Tannis, there was evidence that the corporate defendant had failed to set aside a reserve for Tannis’ claim, and the principal of the corporation was evasive in his evidence about whether he had personally benefitted from a sale.
39Despite the finding in Tannis, Mew J., declined to grant complainant status to the plaintiffs in Torres. After reviewing several cases, at para. 23 of Torres, Mew J., held that the oppression remedy is not a short cut to obtain a judgment, or de facto execution before judgment, against a corporate defendant. He rejected the contingent creditor’s claim for complainant status in circumstances in which the claim was unliquidated.
40The Defendants rely on Royal Trust Corp. of Canada v. Hordo, 1993 CarswellOnt 147. At para. 14, Farley J., held that the Court will not grant complainant status where the creditor’s interest in the affairs of a corporation is too remote, where the complaints of a creditor have nothing to do with the circumstances giving rise to creditor status, or the creditor is not in a position analogous to that of a minority shareholder and has no legitimate interest in how the affairs of the corporation are managed.
41At para. 15 of Royal Trust, Farley J. further held that:
“As well it is clear that a person who may have a contingent interest in an uncertain claim for unliquidated damages is not a creditor. That person really holds a speculative claim to become a creditor in the future which will materialize only if the legal action is successful and judgment is obtained…”
42In Devry, Swinton J., was faced with claims of oppressive conduct that pre-dated the plaintiff becoming a judgment creditor (payment of dividends), and other conduct that occurred post-judgment (valuation and sale of shares). In dealing with the pre-judgment period, Swinton J., noted that prior to receiving judgment Ms. Devry was, at most, a contingent creditor in an uncertain claim for unliquidated damages. Relying on Royal Trust, Swinton J., concluded that the applicant was not a creditor at the time the dividends were paid, and therefore she should not be granted status as a complainant. In other words, a contingent creditor interest was found not to qualify the plaintiff as a complainant.
43Based on the foregoing, I find that in certain circumstances (such as Tannis) a plaintiff can be granted status as a complainant when they are contingent creditors for unliquidated damages, but this is not one of those cases.
44Applying a contextual approach, I find that the Plaintiffs’ status as a creditor for unliquidated damages does not entitle them to standing as a complainant. I find that the Plaintiffs’ interest is not analogous to that of a minority shareholder, and they do not have a legitimate interest in the management of the corporation. The Plaintiffs’ interest in the affairs of the corporation is limited to ensuring that any judgment obtained may be satisfied. This strikes me as a case in which the Plaintiffs seek to attempt to protect a judgment, that has not yet been obtained, through the oppression remedy, when there is nothing in their proposed amended pleaded to suggest that satisfaction of any judgment they obtain is even at risk. The sale of the Property does not automatically lead to this conclusion, particularly given the absence of claims against the Property itself. The Plaintiffs do not assert that the company has been stripped of assets in such a way as to render it immune to judgment. Unlike Tannis, there is no allegation as to a failure to maintain a reserve for the claim, and no allegation of any personal benefit derived by a director or shareholder. Unlike para. 161 of Levy-Russell Ltd. v. Shieldings Inc., there is no allegation that GAAP and GAAS require a reserve or accrual, and one has failed to be made. At best, the pleading is speculative; that if recovery of a judgment becomes impaired or impossible due to the actions of the Defendants, the reasonable expectations of the Plaintiffs will have been defeated. There is no allegation that the company has been stripped of the sale proceeds of the real property assets such that the Plaintiffs’ reasonable expectations are defeated. There is no allegation of any preference given to other creditors. This falls within the class of cases that have rejected a creditor’s claim for complainant status.
45I find that it is plain and obvious that the Plaintiffs cannot succeed in establishing that they are complainants, and therefore there is no chance the Plaintiffs can succeed in advancing an oppression claim.
Were the reasonable expectations of the Plaintiff violated by oppressive conduct?
46If I am wrong and the Plaintiffs are proper complainants, the oppression remedy is available to them to protect their “reasonable expectations”: Levy-Russell Ltd., at para. 73.
47The starting point is for a complainant to establish their objectively reasonable expectations with respect to their relationship with the Defendants: Levy-Russell Ltd., at para. 76.
48In Pine Glen v. Rolling Meadows, 2024 ONSC 1464, 2024 ONSC1464, at para. 65, Valente J., cited with approval Perell J., in CBS Outdoor Canada v. Clarity Outdoor Media Inc., 2012 ONSC 2547, at para. 61, where he held that the Court must answer two questions in assessing a claim for oppression:
a. Does the evidence support the reasonable expectation the claimant asserts?
b. 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?
49The proposed amendment to the Statement of Claim asserts that the Plaintiffs had a reasonable expectation that as a potential or contingent creditor of Con-Form, the business or affairs of the company are not carried on or conducted in such a manner that impairs or makes the recovery of any judgment in this action in favour of the Plaintiffs, impossible.
50In Levy-Russell Ltd., at para. 136, it was found that reasonable expectations for someone in the position of the Plaintiffs, measured by an objective standard would be twofold: first, that the defendant would conduct itself in accordance with GAAP and GAAS with respect to the assessment and treatment of the contingent judgment claim; and second, that the management of the defendant would not engage in ‘asset stripping’ or a reduction in the capitalization of the corporation to the disadvantage of creditors. Asset stripping results in the corporation being unable to pay its debts.
51In FNF, the Ontario Court of Appeal at para. 41 also recognized that even if not specifically pleaded, it is a reasonable expectation, objectively derived, that assets will not be stripped from the corporation to avoid payment of amounts owing to a plaintiff.
52In PricewaterhouseCoopers Inc. v. Perpetual Energy Inc., 2021 ABCA 16 at para. 129, the Court of Appeal for Alberta acknowledged that creditors have a reasonable expectation that the corporation’s business and assets will not be unfairly re-structured in such a way that payment of those debts becomes impossible.
53I find that the Plaintiffs had a reasonable expectation that the affairs of Con-Form would be conducted honestly and in good faith, based on the reasonable business judgment of its directing mind (Vanderwey), and in a manner that did not unfairly prejudice or affect the Plaintiffs’ interests. The Plaintiffs did not have a reasonable expectation that Con-Form would be managed and operated in such a way as to ensure they were paid the damages if, and when there was a judgment.
54As was noted at para. 166 of Levy-Russell Ltd., not all conduct that has a harmful effect to a complainant gives rise to recovery under the oppression remedy. Not only must reasonable expectations of the complainant be defeated by the impugned conduct, but the conduct involved must be such as to affect a result that is “oppressive” or that “unfairly prejudices” the complainant, or that “unfairly disregards the interests of the complainant”.
55Accepting the facts as pleaded in the proposed Amended Statement of Claim, there is nothing to suggest that the Plaintiffs’ reasonable expectations were violated by conduct that was oppressive, unfairly prejudicial, or that unfairly disregarded their relevant interests. While Con-Form has sold the Property and other properties, this alone cannot lead to a conclusion that the reasonable expectations of the Plaintiffs have been unfairly prejudiced or disregarded. There were no claims made against the Property itself. At best there is a request for a declaration there is a valid lease, but then there is a claim for damages for breach of that lease. There is nothing in the proposed amended pleading to suggest that the Plaintiffs will not be paid damages by Con-Form, if awarded.
56There is nothing in the proposed amended pleading that suggests the affairs of Con-Form have not been managed honestly and in good faith, based on the reasonable business judgment of the directing mind.
57The Plaintiffs do not allege that the shareholder(s) of Con-Form have received any monies as shareholders, thereby jeopardizing their claim. The sole concern is the sale of real property assets following the death of Mr. Gamble. This alone is not enough for me to find that there is a legally sufficient claim. The proposed amendments disclose no material facts that suggests there is any prospect of success on the oppression claim.
Personal Liability of Vanderwey:
58Even if I had found that the Plaintiffs are “complainants” and that Con-Form had acted in a manner that was oppressive, it is plain and obvious to me that the Plaintiffs cannot succeed in attaching personal liability to Vanderwey for his actions as directing mind of Con-Form. While the oppressive conduct complained of is attributable to his actions, it would not be appropriate to attribute personal liability to Vanderwey on the facts of this case.
59When oppression remedy relief is claimed against an individual director personally, rather than just against the corporation, two additional criteria must be satisfied:
a. the director must have the requisite degree of involvement in the oppressive conduct so that it is attributable to them; and
b. personal liability must be fit in the circumstances. An order against a director personally will be fit where it is a fair way of dealing with the situation, the order goes no further than necessary to rectify the oppression, the order serves only to vindicate the reasonable expectations of the complainant, and other forms of statutory and common law relief are not more fitting in the circumstances.
See: FNF, at para. 33; Wilson, at paras 47-55.
60The misuse of a corporate power, or the obtaining of a personal benefit by the director are situations in which it would typically be fair to impose personal liability on the director, although this is not an inclusive list. While the absence of a personal benefit or bad faith do not foreclose oppression relief against a director personally, they do tend to be hallmarks of conduct properly attracting personal liability such that one or both elements are typically present: FNF, at para. 34; Wilson, at paras. 49 and 50.
61In this case, there is no allegation of personal benefit or bad faith attributable to Vanderwey. Vanderwey is an accountant, who appears to be taking steps to begin winding down Con-Form following the death of Gamble. He is acting as the directing mind of Con-Form. It is not pleaded that he is a shareholder or will otherwise derive any personal benefit from his actions on behalf of Con-Form. Again, the sole concern that the Plaintiffs seek to plead is that Vanderwey is engaging in actions that could impair their ability to realize on any future judgment obtained. As outlined earlier in this decision, there are no material facts pleaded in the proposed Amended Statement of Claim that leads to this conclusion.
62I find that it is plain and obvious that a claim against Vanderwey personally cannot succeed.
Order:
63For the reasons outlined in this decision, the Plaintiffs’ motion to amend the Statement of Claim is dismissed, without prejudice to the right of the Plaintiffs to bring a further motion should there be additional facts that have arisen to support it.
64Subject to any offers to settle there may have been, the Defendants are the successful parties and are presumptively entitled to their costs. If the parties cannot agree on costs:
a. The Defendants’ costs submissions shall be delivered within 30 days of the date of this decision, limited to five pages, double-spaced, not including attachments (bill of costs, offers to settle, relevant correspondence, and caselaw). If submissions are not received by the court within 30 days, costs shall be deemed to be resolved.
b. The Plaintiffs’ responding costs submissions shall be delivered within 14 days of receipt of the Defendants’ submissions, also limited to five pages, double-spaced, not including attachments.
c. Any Reply submissions shall be delivered within 7 days of receipt of the Plaintiffs’ submissions, limited to two pages, double-spaced, not including attachments.
65Finally, given that it appears that Con-Form is seeking to wind down, given the Plaintiffs’ concern about getting paid on any judgment they obtain and given that the facts and law in this case are not complex, this matter should proceed to trial as soon as possible. If the parties cannot agree on a litigation timetable, they may schedule an appointment before any judge for this purpose. If the trial can be limited to three days or less, it may be possible for the court to offer a special date to expedite the conclusion of this matter.
The Hon. Madam Justice T. J. Nieckarz
Released: April 21, 2026