CITATION: Guttin v. Creber et al., 2026 ONSC 4507
COURT FILE NO.: CV-19-82291 and CV -23-91904
DATE: 2026/08/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kirk Guttin, Applicant
-and-
Brian W. Creber, B-Con Engineering Inc., Pufferfish Inc. and BCE Realty Ltd., Respondents
-AND-
1259086 Ontario Inc. and 1230320 Ontario Inc., Applicants
-and-
Brian W. Creber, B-Con Engineering Inc., Pufferfish Inc. and BCE Realty Ltd., Respondents
BEFORE: Justice Doyle
COUNSEL: Patrick Snelling and Rebecca Cooke, Counsel for the Applicants
Pierre Champagne and Emmanuelle Champagne, Counsel for the Respondents, B-Con Engineering Inc., Pufferfish Inc. and BCE Realty Ltd.
Kevin Caron, Counsel for the Respondent Brian W. Creber
HEARD: In Writing
COSTs DECISION
[1] On June 11, 2026, this court released its Decision concerning two related oppression applications arising from a prolonged business dispute between the principals and corporate stakeholders of B-Con Engineering Inc. (“B-Con”) and BCE Realty Ltd. (“BCE”). (2026 ONSC 3460)
[2] The applicants, including Kirk Guttin, alleged various breaches of fiduciary duty and oppression pursuant to s. 248 of the OBCA and also claimed damages for constructive dismissal in the amount of $167,455.67, representing dividends issued by BCE in 2018 and 2019 that he alleged were intended to compensate him for his labour performed for B-Con.
[3] The court found that the respondent, Mr. Creber, had unfairly disregarded Mr. Guttin’s rights regarding timely disclosure of financial information regarding their corporations.
[4] The court declined to order a receiver-manager requested by the applicants as such an appointment would constitute a disproportionate and draconian remedy. Rather, the court set out directions regarding the imminent sale of the property located on 14 Capella Court (Capella property) which is owned by the parties.
[5] Specifically, the court ordered that:
Mr. Guttin will be entitled to all information regarding the sale of the Capella property and any documentation pertaining to the respondent corporations which is relevant for the execution of this order;
Mr. Guttin can utilize the buy sell provisions in the respondent companies’ shareholder agreement;
The sale of 14 Capella Court will proceed and the proceeds from the sale will be distributed as follows:
o The real estate commissions, real estate fees, solicitor costs and any costs associated with closing the deal will be paid from the sale proceeds;
o Payment of the first mortgage;
o Payment of the 204 mortgage and Mr. Lafrance loan will be paid out from the sale; and
o The balance will be held in trust by the real estate lawyer on the sale pending an accounting and determination of the respective payout to each shareholder based on the shareholder holdings.
If there is a disagreement regarding the value of Mr. Guttin’s shares in B-Con or BCE, then the parties are to retain independent accountants and/or a certified business valuator to assist the parties.
If they are unable to agree, then the matter will be referred to an Associate Justice for a reference pursuant to r. 54.02(1), Rules of Civil Procedure, R.R. 1990, Reg. 194 and the Associate Justice shall take all necessary steps and make all necessary inquiries relevant thereto.
If the parties require directions or orders to implement this decision, they may return before me by seeking a date with the trial coordinator.
[6] If the parties were unable to agree on costs, they were to provide me with their written submissions.
[7] Having considered the parties’ costs submissions and rule 57, the court awards costs in the amount of $50,000 to Mr. Creber and $50,000 to the respondent corporations.
Mr. Guttin’s Position
[8] Mr. Guttin submits that there was equally divided success and that both parties should bear their own costs.
[9] The court found that the delay and denial of records, bank statements, QuickBooks, and passcodes requested constituted conduct that unfairly disregarded Mr. Guttin’s rights within the meaning of s. 248 of the OBCA.
[10] The applicants were successful in allowing the sale of the Capella property to proceed and the retention of the proceeds and an accounting.
[11] Although they were not successful on some of the relief sought, the applicants were successful on the most important issue before the court which is related to the financial disclosure and sale of the Capella property.
Mr. Creber’s Position
[12] Mr. Creber submits that success was not equally divided as Mr. Creber was successful in defeating the numerous serious allegations that he breached his fiduciary duties and acted dishonestly and attempted to conceal an oppressive use of funds.
[13] The applicants were only able to establish one of the many complaints of oppression, that is, lack of timely disclosure of financial information regarding its timeliness, completeness and consistency. The court did not find that the respondents had restricted access to the records to cover up Mr. Creber’s use of the funds to the detriment of the applicant.
[14] In the relief granted, the court endorsed Mr. Creber’s approach that the sale of the Capella property proceed with payments of encumbrances paid before distribution to the shareholders.
[15] In addition, the applicants unnecessarily prolonged the litigation without setting out a proper foundation for their claims.
[16] He is claiming partial indemnity costs in the amount of $74,553.98.
Position of B-Con Engineering Inc., Pufferfish Inc. and BCE Realty Ltd.
[17] The respondent corporations are requesting costs in the amount of $74,036 representing 11/13 (84.6%) of their partial indemnity costs to account for the two issues on which they were unsuccessful.
[18] The respondents were overwhelmingly successful on most of the issues in dispute.
[19] Costs should follow the event and the respondents were successful on the disputes that “drove” the litigation.
[20] In addition, the respondent corporations made several offers to settle (in 2021 through the corporate counsel Mr. Michael Clancy to the applicants’ previous counsel, Mr. Martin Diegel) and the costs of litigation could have been avoided.
Discussion
[21] Costs are to be determined in accordance with s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C. 43. In determining costs, the court has considered the factors set out in r. 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[22] Pursuant to r. 57.01(7), the court is directed to devise and adopt the simplest, least expensive and most expeditious process for fixing costs.
[23] As stated in Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), in determining costs, the court can compare the defendants’ fees to those of the plaintiffs when considering the reasonable expectations criteria. The court must exercise its discretion in awarding costs that are fair and reasonable.
[24] The determination of costs is meant to be a simple and straightforward exercise that does not require the court to complete mathematical formulas.
[25] First, I note that the court made orders dealing with the sale of the Capella property specifically with respect to distribution and directions if the parties could not resolve issues. The court found only one act of oppression.
[26] However, on the majority of the issues, I find that the respondents were more successful.
[27] Second, the court declined to order a receiver-manager requested by the applicants at the hearing and at a previous motion.
[28] Successful parties are presumptively entitled to costs on a partial indemnity basis.
[29] I note that the applicants’ bill of costs on a partial indemnity basis is $259,073.97.
[30] Therefore, I find the respondents’ costs requested are within the range to be expected to be paid to the successful party.
[31] In contrast, I have reviewed the Bill of Costs of Mr. Creber and agree that that the proceeding was factually and procedurally complex and dealt with two applications and voluminous material. The allegations were wide-ranging and requested a serious remedy.
[32] I have reviewed the Bill of Costs of the respondent corporations and note that costs on a partial indemnity basis are $87,497 and they submit a reduction due to the applicants’ success on two issues.
[33] I have also considered that the court reserved the costs of the motion determined on May 5, 2023 for an order for audited financial statement for 2022 for BCE in which the plaintiff was successful. Yet, the court notes that the financial statement was not completed. On September 22, 2025 the court consolidated the two actions and set directions for the production of an audited statement but declined to order the appointment of a receiver.
[34] In their costs submissions, the parties did not address who should bear the costs of those motions although time spent on those motions wwas included in the bill of costs.
[35] Considering the factors set out in Rule 57 and the above findings, the court finds that the appropriate and reasonable costs to be awarded are as follows: $50,000 to be paid to the respondent, Mr. Creber and $50,000 to the corporate respondents.
Justice Doyle
Date: August 18, 2026
CITATION: Guttin. v. Creber et al., 2026 ONSC 4507
COURT FILE NO.: CV-19-82291 and CV -23-91904
DATE: 2026/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Kirk Guttin, Applicant
-and-
Brian W. Creber, B-Con Engineering Inc., Pufferfish Inc. and BCE Realty Ltd., Respondents
-AND-
1259086 Ontario Inc. and 1230320 Ontario Inc., Applicant
-and-
Brian W. Creber, B-Con Engineering Inc., Pufferfish Inc. and BCE Realty Ltd., Respondents
COUNSEL: Patrick Snelling and Rebecca Cooke, Counsel for the Applicant
Pierre Champagne and Emmanuelle Champagne, Counsel for the Respondents, B-Con Engineering Inc., Pufferfish Inc. and BCE Realty Ltd.
Kevin Caron, Counsel for the Respondent Brian W. Creber
COSTs DECISION
DOYLE J.
Released: August 18, 2026