D'Agnone v D'Agnone, 2016 ABQB 87

Court of Queen’s Bench of Alberta Citation: D'Agnone v D'Agnone, 2016 ABQB 87 Date: 20160210 Docket: 1406 00376 Registry: Lethbridge Between: Angela D'Agnone Plaintiff - and - Dominic D'Agnone, 530578 Alberta Ltd., George Kollias and Joe Strojwas Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice D.K.

Miller _______________________________________________________ Introduction [ 1 ] The main issue in this case is what remedy and damages may be available for a party to a Divorce and Property Contract who is promised shares to a private company as part of the property settlement and the promisor cannot perform his obligation to transfer the shares.

The promisor is unable to effect the transfer because he is party to a Shareholder Agreement requiring the unanimous approval of other shareholders, and the remaining shareholders refuse to approve the transfer. [ 2 ] Angela D'Agnone entered a Divorce and Property Contract with her husband Dominic D'Agnone on March 30 th , 2007. They

had been married 34 years at this time and had been separated for about three years. Each party had an experienced family law lawyer representing them in the negotiations leading up to the contract and each received independent legal advice at the time the contract was signed. The contract divided the various personal and business assets the parties had acquired after 34 years of marriage. A large part of the assets of the parties was various corporate entities involved in the restaurant business in the Lethbridge area.

The joint assets amounted to about $4 million dollars and each party had obtained close to 50% of that asset pool according to the property contract. Part of the contract required Dominic D'Agnone to transfer his 1/3 share interest (100 Class A Shares) in 530578 Alberta Ltd. (578) to Angela D'Agnone. George Kollias and Joe Strojwas each owned another 1/3 of the shares in 578 and all three individuals were directors of 578.

As of March 30 th , 2007, 578 owned the following properties which other corporate entities rented for restaurant and retail ventures: 1. 5036 – 46 th Avenue, Taber, Alberta (Luigi’s Pizza and Steakhouse). 2. 5335 – 47 th Avenue, Taber, Alberta (Taber Liquor Store). 3. 5031 – 45 th Avenue, Taber, Alberta (Taber Residence). 4. 13151 Freebairn Avenue, Pincher Creek, Alberta (Luigi’s Pizza and Steakhouse). [ 3 ] Both parties presumably knew of the Shareholder Agreement that required Joe Strojwas and George Kollias to approve Dominic’s transfer of his 1/3 share interest in 578.

Both counsel for the parties knew about the Shareholders Agreement at the time the Divorce and Property Contract was signed. [ 4 ]

Section 11 of the Divorce and Property Contract includes the following terminology: 11. The Husband shall cause to be transferred to the Wife all of the issued and outstanding shares in 530578 Alberta Ltd., consisting of 100 Class A common-voting shares under share certificate #2, pursuant to

Section 73 of the Income Tax Act, on a tax-free basis, such that the transfer of shares are to occur in a tax deferred manner, so that no capital gains for tax purposes are created, unless the Husband elects to create the same on the sale of shares to the Wife. 11.1 The parties agree to enter into the Transfer of Shares Agreement, effective March 30, 2007, attached hereto as

Schedule “D”, and such other documentation as the parties legal and accounting advisors may require. 11.2 The Husband shall transfer and assign the Shareholder Loans due and owing to him by 530578 Alberta Ltd., in the amount of FORTY-SEVEN THOUSAND ONE HUNDRED SIXTY-SEVEN 00/100 ($47,167.00) DOLLARS, upon execution of this Contract, and such other shareholder loans as may be due and owing to the Husband or any corporation controlled by the Husband by 530578 Alberta Ltd. 11.3 If requested to do so by the Wife, the Husband will continue to act in his capacity as a Director and Officer of 530578 Alberta Ltd., until such time as 530578 Alberta Ltd., shall appoint the Wife as a Director and Officer of the Corporation. [ 5 ] The Share Transfer Agreement obligated Dominic D'Agnone, the Transferor, to transfer his 1/3 interest, namely 100 Class A common voting shares in 578, to the Transferee Angela D'Agnone.

Relevant sections of the Share Transfer Agreement are as follows: 2 .01 Subject to the terms and conditions hereof, on the Closing Date the Transferor covenants and agrees to assign and transfer to the Transferee and the Transferee covenants and agrees to accept from the Transferor the Shares and his Shareholder Loan pursuant to the provisions of a Divorce and Property Contract between the Transferor and the Transferee dated the 30 th day of March, 2007. ... 4.01 The Transferor covenants and agrees with the Transferee that on or before the Closing Date he will do or will cause to be done the following:

a) Deliver to the Transferee at the Time of Closing a favourable opinion of the Transferor’s counsel in a form reasonably satisfactory to the Transferee’s counsel that:

i) the Corporation has been duly incorporated and (based solely upon a review of the minute book of the Corporation) organized, and is validly subsisting under the laws of the Province of Alberta; the Corporation has the corporate power and capacity to own or lease its property and to carry on the Business and now being conducted by it; ii) the issued capital of the Corporation consists of the Shares set forth in

Schedule “B”; iii) the execution and delivery of this Agreement the Transferor has not breached and the consummation of the transaction of transfer contemplated by this Agreement will not be in breach of any federal, provincial or other laws of any jurisdiction in which the Business or the Corporation is carried on; iv) The execution and delivery of this Agreement by the Transferor and the consummation of the transaction of the transfer contemplated herein has been duly authorized by the Transferor as required; the Transferor has the capacity to execute and deliver this Agreement and to consummate the said transfer; and this Agreement is a valid and binding obligation of the Transferor enforceable against the Transferor in accordance with its terms.

b) Take all necessary steps and proceedings as may reasonably be required by the Transferee’s counsel to permit the shares to be duly and regularly transferred to the Transferee or its nominee;

c) Resign as a director and officer of the Corporation in favour of nominees of the Transferee, such resignation to be effective as at the

Closing Date, it being understood and agreed that if requested to do so by the Transferee, the Transferor will continue to act in his capacity as a Director and Officer of the Corporation until such time as the Corporation shall appoint the Transferee as a Director and officer of the Corporation;

d) Deliver to the Transferee the corporate seal of the Corporation and all records and books of account of the Corporation including without limiting the generality of the foregoing, the minute book, share register books, share certificate books and annual reports;

e) Deliver to the Transferee a certified copy of a resolution of the Directors of the Corporation, approving the transfer of the Shares contemplated herein. 5.01 The covenants, representations and warranties of the Transferor and the Transferee contained in this Agreement or contained in any document or certificate given pursuant hereto shall survive the Closing of the transfer of the Shares herein provided and, notwithstanding the said closing; shall continue in full force and effect for the benefit of the respective parties. 5.02 Effective upon the consummation of the transfer herein contemplated, the Transferor hereby personally guarantees, covenants and agrees to indemnify and save harmless the Transferee from and against:

a) any and all claims, actions, losses, damages or costs (including legal fees or expenses) which the Transferee may incur or suffer by or as a result of any misrepresentation, breach or default under or pursuant to this Agreement or any instrument granted ancillary hereto or as a result or in connection with any actions of the Transferor or the Corporation hereunder.

b) any and all liabilities, costs, interest, penalties, expenses and claims of any and every kind, including without limitation, all federal, provincial and local tax claims or assessments and/or reassessments of any nature whatsoever, and the liabilities, costs, interest, penalties and expenses relating to or arising from any tax investigation or proceeding of any and every kind whatsoever which at any time or from time to time may be paid, incurred or asserted against the Transferee or the Corporation for, with respect to, as a result of, or arising from, the conduct of the Business proper to the Time of Closing; and

c) any and all liabilities, costs, interest, penalties, expenses and claims of any and every kind whatsoever (except as is fully covered by insurance) in the nature of a tort, as a result of, or arising from, the conduct of the Business prior to the Time of Closing. [ 6 ] It is clear that Dominic D'Agnone as the Transferor represented and provided an unconditional warranty and an acknowledgement to Angela D'Agnone.

It is also clear that Angela D'Agnone relied upon various covenants, representations and warranties that Dominic D'Agnone provided in connection with the transfer of the shares in question. [ 7 ] It became clear shortly after the parties entered the Divorce and Property Contract that Dominic D'Agnone’s two partners were not prepared to approve of the transfer of shares.

Specifically, in early April 2007 counsel for Dominic D'Agnone imposed a trust condition upon counsel for the Plaintiff obligating the Plaintiff’s counsel to perform the Defendant Dominic D'Agnone’s obligations under the Divorce and Property Contract. It was made abundantly clear to everyone involved at a Directors and Shareholders meeting a year later, on March 27 th 2008, that Joe Strojwas and George Kollias were not going to approve the share transfer. The lawyers for the parties had called the meeting to try to come to a resolution but Mr. Kollias and Mr.

Strojwas would not approve of the transfer by Dominic D'Agnone. They were reminded of an oral agreement that they had all been party to when they started the company in 1992. The essence of that agreement was that no wives or children were ever to become shareholders of 578. This was made more concrete by the Shareholders Agreement of October 1996 which stipulated that any share transfer required unanimous approval of the shareholders.

Dominic D'Agnone could not get unanimous approval of the transfer of his shares in 578 in order to fulfill his obligation under the Divorce and Property Contract. [ 8 ] Lawyers for the parties then attempted to provide Angela D'Agnone with a proxy so that she, as beneficial owner of the shares, could direct Dominic D'Agnone how to vote. That did not work as she was not provided with notice of any meetings or given an opportunity to provide input to Dominic D'Agnone.

However Dominic D'Agnone proceeded to conduct “business as usual” as a shareholder of 578 after it became clear that his shares could not be transferred due to the lack of approval of the shareholders. He continued to have dividends and bonuses declared in his favour and he was paid certain amounts from the company 578. [ 9 ] In 2013 Dominic D'Agnone proceeded to approve the sale by 578 of its restaurant building in Taber, Alberta.

He also agreed to the sale of the Taber Liquor Store building and revenue property to Joe Strojwas at a price of $640,000.00, some $132,000.00 below the appraised value of $772,000.00. [ 10 ] Issues to be decided: 1. Is Dominic D'Agnone liable for his failure to disclose the Defendants’ “Oral Agreement”? 2. Was the “Knowing Assistance” of George Kollias, Joe Strojwas and 578 to Dominic D'Agnone a conspiracy of all four Defendants? 3.

Is the Defendant Dominic D'Agnone in a fiduciary position or unjustly enriched by promising to transfer his 1/3 interest in 578 and then not fulfilling that promise and continuing to conduct business through 578 and receive dividends and bonuses? 4. Is the claim of Angela D'Agnone barred by the Limitations Act of Alberta? 5. What are the Plaintiff’s damages? 1.

Is Dominic D'Agnone liable for his failure to disclose the Defendants’ “Oral Agreement”? [ 11 ] The Plaintiff has made much of the fact that when D'Agnone, Kollias and Strojwas originally started 578 in 1992 they had agreed there would be no spouses or children as shareholders or directors. This was first discovered by the Plaintiff when the Defendants,

578, Kollias and Strojwas, filed their Statement of Defence on April 1 st , 2014. Paragraph seven of their Statement of Defence states as follows: Prior to Kollias, D'Agnone and Strojwas becoming shareholders and directors of 530578 they verbally agreed that only they would be shareholders and directors of 530578 and specifically that neither their spouses nor their children would become shareholders, directors or have any involvement in the corporation. [ 12 ] That this was in fact the state of affairs in July 1992 when 578 came into existence there appears to be little doubt.

The point was made very clear in the evidence of Joe Strojwas and in terms of what happened at the meeting held on March 27 th , 2008 called for the specific purpose of trying to solve the issue created by Dominic D'Agnone’s over promising and not delivering.

At that meeting all the participants recalled Joe Strojwas reminding the others of their original “no spouses and no children” verbal agreement. [ 13 ] While the Plaintiff claims to have not known of this agreement going back to 1992 and only being made aware of it in 2014, it is of interest that the Defendant Dominic D'Agnone did not raise this agreement as a defence. Nor did he make reference to it in any evidence he placed before the Court. Rather, Dominic D'Agnone simply relied upon the Shareholders Agreement that was entered by the three shareholders in 1996.

That Agreement specifically provides: 3.01 The Parties acknowledge and agree that as of the Effective Date of this Agreement, the Directors of the Company are Dagnone, Kollias and Strojwas, and the Shareholders hereby agree at all times to vote their shares and exercise their influence during the continuance of this Agreement so that the Board of Directors of the Company shall consist of only 3 (three) Directors, always being Dagnone, Kollias and Strojwas during their respective lifetimes, and that the Officers of the Company shall be determined at the Annual General Meeting of the Company. ... 5.02 No Shareholder shall sell, transfer, convey or assign all or any portion of his common shares except in accordance with the terms of this Agreement and every such sale or disposition otherwise shall be subject to this Agreement. [ 14 ] It is clear that this Shareholders Agreement, while not specifically called a Unanimous Shareholders Agreement, could easily be construed as such an agreement pursuant to

section 1 (jj) and 146 of the Alberta Business Corporations Act , RSA 2000, c B-9. [ 15 ] The only way an owner’s shares could be compelled to be sold without the approval of the remaining shareholders under this contract is through death, or incapacity as defined in paragraph 7.01: 7.01 For purposes of this Article, a Shareholder shall be deemed to have become incapacitated upon the happening of any of the following occurrences:

a) If the shareholder shall become disabled, whether physically or mentally to such an extent that such Shareholder cannot devote such time and attention to the business of the Company as may from time to time be determined by the other Shareholders, acting reasonably, and such disability persists for a period of twelve (12) months from the commencement of such disability;

b) If the Shareholder:

i) is declared bankrupt; ii) makes an assignment into bankruptcy for the benefit of his creditors; iii) is adjudged unable to manage his own affairs; iv) suffers any of his shares to be subject to seizure;

v) fails to provide the Company with his or his portion of any loans or personal Guarantees which the Board of Directors of the Company shall have determined by resolution are necessary from the Shareholders for the purpose of the operation of the Company after the request in writing from the Company has been made; vi) his Shares become subject to a Matrimonial Property Order. [ 16 ] While it appears true that Dominic D'Agnone did not disclose the “Oral Agreement” the fact of the matter is that failure to disclose could be construed as having no real consequence.

That “Oral Agreement” was clearly solidified in the written Shareholders Agreement of October 1996, which was disclosed to the Plaintiff. By virtue of this disclosure it was clear that the approval of other parties to complete the terms of the Divorce and Property Contract and Share Transfer Agreement needed to be obtained. [ 17 ] It could be argued that the authority cited on this issue by the Plaintiff, simply does not apply to the facts of this case as they deal with financial matters and this “Oral Agreement” is not related to financing.

However, at no time did Dominic D'Agnone ever take the position contrary to Kollias and Strojwas in terms of the “Oral Agreement.” He simply defended against this claim based on the bare minimum. He relied simply on the written Shareholders Agreement of October 1996.

While Dominic D'Agnone represented that there was full disclosure on this issue in the Divorce and Property Agreement and in the Share Transfer Agreement, he really did not disclose a very relevant and germane fact that goes to the heart of this law suit, and was the basis for the other two personal defendants refusing to approve of the share transfer. [ 18 ] In Turpin v Turpin , 1991 CarswellBC 2287 , Justice Drost, in discussing the failure to disclose financial information, has the following to say about disclosure generally in family owned businesses: 48 Ms.

Kornfield also says that her client made no reference to the possibility of a bonus in 1987 because, in June of that year, there

was no certainty that he would receive one. That much is true, as the letter written by Mr. G.A. Adams, President of Canadian TransportLimited, and exhibited to Mr. Turpin’s affidavit of October 5, 1990, clearly demonstrates. However, Ms. Kornfeld’s response begs thequestion. The fact remains that in June 1987 Mr. Turpin knew that he had received a bonus for 1986. He also knew that his employer’sbonus plan was based upon results and, given his position, was undoubtedly well aware of the company’s performance to date and of thelikelihood of there being a bonus at the end of the year.

The question therefore remains: was he under an obligation to disclose that factprior to the hearing of the maintenance application in July 1973? 49 Counsel did not refer to any authorities on point, but further research has led me to certain earlier decisions of this court and ofour Court of Appeal which, taken together, determine the issue. 50 The first of these is the decision of Hutcheon L.J.S.C. (as he then was) in Clark v Clark (1974) 16 FRL 214. In that case, theparties had been divorced by a decree granted January 29, 1965.

Incorporated in the decree were the terms of an agreement whichprovided, in part, for the maintenance of the wife and children. 51 In 1972 the husband applied for a decrease in the monthly maintenance payment. Subsequently he withdrew that application andthe sole question became whether the amount of maintenance he paid to his wife should be increased. 52 After noting that the husband had failed to present a “clear-cut picture of his income and assets”, Mr. Justice Hutcheon quotedwith approval the following observations made by Mr.

Justice in J v J [1955] 2 All ER 617: In cases of this kind, where the duty of disclosure comes to lie on a husband, where a husband has, and his wife has not, detailedknowledge of his complex affairs, where a husband is fully capable of and has had opportunity to explain those affairs, and where heseeks to minimise his wife’s claim, that husband can hardly complain if, when he leaves gaps in the court’s knowledge, the court doesnot draw inferences in his favour.

On the contrary, when he leaves a gap such that two alternative inferences may be drawn, the courtwill normally draw the less favourable inference. 53 Next, in Hauptman v Hauptman (1981) (BC SC), 32 BCLR 119, McLachlin L.J.S.C. (as she then was), afterobserving that the Petitioner, Dr. Hauptman, was “...less than forthright in providing information as to his current earnings...” adoptedwhat she referred to as “the approach approved in Clark v Clark” as well as the observations of Sachs J. quoted above. Because shelacked full information as to Dr.

Hauptman’s total earnings, Madam Justice McLachlin directed a reference to the registrar. 54 Then I turn to the decision of the Court of Appeal of this province in Psaila v Psaila (1987) (BC CA), 10BCLR (2d) 336. There, a wife, on an application to vary a maintenance order, sought to introduce evidence to prove that her husband hadmisrepresented the value of assets and liabilities at the time the original order was made.

The trial judge held, in effect, that the evidencewas not relevant to the determination of whether there had been a sufficient change in circumstances to warrant a variation of themaintenance order. 55 On appeal it was held that: ...such evidence was relevant and ought to have been considered by the trial judge on the application under s11.

If he had accepted theallegations of misrepresentation and non-disclosure, he had the power to remedy the state of affairs by making an order for lump-summaintenance or for an increase in periodic maintenance. and Hutcheon JA, who gave judgment for the Court, went on to observe that: I think the words of s11(2), ‘any change in the condition, means or other circumstances of either of them’, include matters not known tothe other party or the court at the time of the order.

For example, if the husband represented his income to be $2,000 per month at thetime of trial whereas it was discovered subsequently that his income was in fact $4,000 per month, the court would have jurisdictionunder s11(2) to vary its previous order. 56 Finally, I will refer to the reasons for judgment given by Cumming JA on October 25, 1990 in Young v Young (as yetunreported), Vancouver Registry Nos CA011876, CA022864, CA011867 and CA011865.

In that action there were many issues beforethe court including the husband’s applications for the reduction of monthly maintenance payments and the cancellation of arrears. Withrespect to those applications, the trial judge had found that Mr. Young attempted to mislead the court by failing to disclose several veryimportant financial matters.

For example, he had not disclosed the fact that he had received certain gifts of money, or that he expected anincome tax refund of almost $10,000 and had sold properties which would later provide him with commission income in excess of$16,000. 57 Regarding the husband’s failure to disclose that information, Mr. Justice Cumming observed that: The seriousness of such a lack of candour can hardly be overstated.

The conduct of litigation, and particularly matrimonial litigation, isdifficult enough at the best of times; when it is rendered more so by such deliberate non-disclosure as has been exhibited in this casesuch misconduct ought not to be ignored. 58 These authorities clearly demonstrate that each party to a matrimonial proceeding, whether with respect to the division of assets orthe payment of maintenance, has a duty, separate and apart from the requirements of Rule 60A, to make full financial disclosure to theother party and to the court.

That duty is of particular significance where, as here, one of the parties has relevant information unknown tothe other. [19] In light of the facts of this case and specifically in terms of how history unfolded it is clear that Dominic D'Agnone failed todisclose a material and relevant aspect of the corporation 578 business affairs. It is clear that had the Plaintiff been privy to thisinformation she may not have acted as she did in negotiating the Divorce and Property Agreement and very likely would not have chosento take Dominic D'Agnone’s shares in 578.

[20] Accordingly, I find that Dominic D'Agnone failed to effect full disclosure, specifically, the Oral Agreement between theShareholders of 578, and that this was a clear inducement to the Plaintiff to accept an asset in the Property Agreement that could not betransferred to her. No evidence was proffered by the defendants that Angela D'Agnone was aware of the Oral Agreement before signingthe Divorce and Property Agreement in March 2007. Both lawyers who negotiated that Agreement testified and made no reference toAngela D'Agnone being aware of the Oral Agreement.

In fact, counsel for Dominic D'Agnone testified that had he been made aware ofthe “Oral Agreement” he would have acted differently on this point and certainly advised counsel for the Plaintiff.

Angela D'Agnone testified that she was not aware of the Oral Agreement prior to March 30th, 2007 and I accept her evidence on this point. [21] In this finding I am in agreement with the principle annunciated by the Trial Judge and the Court of Appeal in Moore vMoore, 2000 CarswellAB 287 at paragraph 10: It seems to me that the contractual duty to make “full disclosure to the other of his or her respective financial means and circumstances”is the functional equivalent of a reciprocal request for specific disclosure at common law.

It follows that a finding by a trial judge (as inthis case) that full disclosure in the active sense has not been made, amounts to a finding of a failure to respond appropriately and fully toa request for specific disclosure. This is so even when the aggrieved party is found to be generally aware of the assets of the other and inthe absence of concealment.

The production of such disclosure must be regarded as fundamental to the Agreement. [22] Not only was Dominic D'Agnone aware of the effect of veto powers of his fellow shareholders in 578, due to the ShareholdersAgreement, he was privy to a very strongly held position of his business partners, especially Joe Strojwas. That position was that therewere to be no other family members in the owning or directing of 578. The Plaintiff and her counsel not having being apprised of theOral Agreement, proceeded to rely fully upon

section 11 of the Divorce and Property Contract and upon

section 4.01 of the ShareTransfer Agreement. Reliance on the obligations of Dominic D'Agnone and his words spelled out in the agreements has proven to bepointless for the Plaintiff. 2. Was the “Knowing Assistance” of George Kollias, Joe Strojwas and 578 to Dominic D’Agnone a conspiracy of allfour Defendants? [23] The evidence reveals that sometime after March 30th, 2007 George Kollias and Joe Strojwas were made aware that theirpartner in business, Dominic D'Agnone had agreed to transfer his 1/3 shares in 578 to the Plaintiff Angela D'Agnone.

Further, it is clearthat Dominic D'Agnone’s two partners were of the view that their “Oral Agreement” not to allow wives or children as shareholders ordirectors was to be adhered to and the subsequent Shareholder Agreement clearly empowered them to thwart the transfer. In my view, upto this point George Kollias and Joe Strojwas were within their rights to do what they did, that is, to refuse to grant approval to theirpartner’s share transfer. However what they were not entitled to do, was what they in fact did do after they were apprised of theinformation of March 2007.

That is, they continued to distribute funds of 578 through declared dividends and bonuses to the credit ofDominic D'Agnone.

They continued to authorize 578 to issue cheques for such bonuses and dividends in the name of Dominic D'Agnonealone, with no thought as to how Angela D'Agnone, the beneficial owner of the shares, should receive remuneration for which she wasentitled. [24] For these actions, the Plaintiff claims the tort of conspiracy against all three personal Defendants and 578. [25] In British Columbia Lightweight Aggregate Ltd. v Canada Cement LaFarge Ltd. et al (SCC), [1983] 1 SCR452 the definition of the tort of conspiracy is set out as

an act to injure trade when persons act in combination where the predominantpurpose of their conduct, irrespective if the means are lawful or unlawful, is to cause injury to a person. Specifically Justice Estey indelivering the Judgment stated: 33 Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tortdoes not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claimagainst them in combination as the tort of conspiracy if:

(1) Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to causeinjury to the plaintiff; or,

(2) Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), andthe defendants should know in the circumstances that injury to the plaintiff is likely to and does result. 34 In situation (2) it is not necessary that the predominant purpose of the defendants’ conduct be to cause injury to the plaintiff but,in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injuryto the plaintiff would ensue.

In both situations, however, there must be actual damage suffered by the plaintiff. [26] It is clear to this Court that the combined actions of the three personal Defendants in full knowledge of the DefendantDominic D'Agnone’s clear commitment to do the impossible, that is transfer his shares without the consent of the other twoshareholders, and subsequent conduct of “business as usual” in declaring bonuses and dividends, fits the definition as outlined by JusticeEstey. [27] What happened between the three personal Defendants after March 2007 was akin to a crime being committed in slow motionand all three of them, if they acted together, had the means to prevent it.

However, two of them had no obligation to act in such a wayand one of them had no motive to prevent it and utilized the lack of obligation on the part of the other two to his advantage. This inactionon the part of the two shareholders did not make them liable in any way. However, when they proceeded to continue with the “businessas usual” approach and pretended along with Dominic D'Agnone that nothing in fact had happened, that is when liability began to restwith Kollias and Strojwas.

It could be said that if Dominic D'Agnone alone had liability, he was aided and abetted by George Kollias andJoe Strojwas by having them declare bonuses and dividends. It was when George Kollias and Joe Strojwas authorized 578 to declare a

bonus dividend in 2008 that a civil conspiracy commenced. [28] This sequence of events after March 2007 and the combined behaviour of the four Defendants fits the requirements of theevidential burden set out by the Alberta Court of Appeal in Mraiche Investment Corp. v Paul, 2012 ABCA 95: 40 It is important to read LaFarge accurately as to what constitutes this unusual form of economic tort. In Can-Dive Services Ltd. vPacific Coast Energy Corp. (1993) (BC CA), 96 BCLR (2d) 156, 26 CPC (3d) 395 (BCCA), McEachern CJBCwrote: 5 Accordingly, the following elements must be proved: 1. an agreement between two or more persons; 2. concerted action taken pursuant to the agreement; 3. (

i) if the action is lawful, there must be evidence that the conspirators intended to cause damage to the plaintiff; (ii) if the action is unlawful, there must at least be evidence that the conspirators knew or ought to have known that their action wouldinjure the plaintiff (i.e., constructive intent); 4. actual damage suffered by the plaintiff. 41 This

summary was affirmed in Soleil Hospitality Inc. v Louie 2011 BCCA 305, 308 BCAC 122 (BCCA) at para 111, where thetrial judge found the unlawful means to include fraud, perjury and breach of court orders.

See also Pro-Sys Consultants Ltd. v Microsoft Corp. 2011 BCCA 186, 331 DLR (4th) 671 (BCCA), leave granted [2011] SCCA No 396 (SCC), and Sun-Rype Products Ltd. v Archer Daniels Midland Co. 2011 BCCA 187, 331 DLR (4th) 631 (BCCA), leave granted [2011] SCCA No 236 (SCC) where a divided Courtof Appeal found no cause of action. 42 It is clear, as noted in Capital Estate Planning Corp. v Lynch 2011 ABCA 224, 510 AR 244 (Alta CA), that direct evidence ofconspiracy will not be the usual case: 81 Capital Estate correctly pointed out that direct evidence is rarely available to prove the essential agreement between the parties, sothat resort must be had to circumstantial evidence.

However, the evidentiary difficulty faced by the appellant does not relieve it ofadducing at least some evidence from which it may be inferred that there was an intentional participation by the parties with a view tothe furtherance of a common design. Here, there is none. 43 So the question on a

summary judgment motion is whether there is any triable case of evidence on all of the essential ingredientsof the conspiracy tort. It is not enough that there is some evidence of some parts of the tort if there is no evidence of any one or moreessential ingredients. What is important in the present context is the existence of an actual agreement. The artificial imposition of adeemed agreement arising from a purely constructively determined ‘ought to know’ state of mind would make this tort so elastic as tomake it mere negligence without proximity, privity, or fiduciary duty.

This Court in Maguire v Calgary (City) 1983 ABCA 121, 43 AR268, [1983] 4 WWR 342 (Alta CA) at paras 11 to 13 said: 11 The wording “concerted action taken pursuant to agreement” was used by Lord Diplock in Lonrho et al v Shell Petroleum Co. et al[1981] All ER 456, at 463. 12 In order to be found to be a party to a conspiracy one must know the facts of the alleged agreement or combination and intend to be aparty to the “combining.” This principle was adopted by the English Court of Appeal in Belmont Finance Corp. v Williams Furnitureet al (No 2) [1980] 1 All ER 393, wherein both Buckley, L.J., and Waller, L.J., referred to Churchill v Walton [1967] 2 AC 224,approving the words of Viscount Dilhorne at p 237: ...I would say that mens rea is only an essential ingredient in conspiracy in so far as there must be an intention to be a party to anagreement to do an unlawful act; that knowledge of the law on the part of the accused is immaterial and that knowledge of the facts isonly material in so far as such knowledge throws a light on what was agreed. (emphasis added) [29] Accordingly, it is clear to this Court that the three personal Defendants and 578 are together liable for conspiring to preventAngela D'Agnone from achieving the clear economic gain she bargained for in negotiating the transfer of the 1/3 of shares of 578 in theDivorce and Property Contract. [30] The defence of Dominic D'Agnone that his lawyer, at the time of signing the Divorce and Property Agreement, imposed atrust condition that shifted the obligation to obtain the other shareholders’ consent and that thereby the entire agreement was premised ona condition precedent of the other shareholders’ approval, must be examined. [31] The fact that not one of the personal Defendants nor 578 provided Angela D'Agnone with notice of any meetings forshareholders or directors and no financial information after Dominic D'Agnone attempted to appoint her a proxy is further evidence ofthe conspiracy of all the Defendants. [32] As argued by the Plaintiff the trust condition contained in the correspondence of the then solicitor for Dominic D'Agnone of April 2nd, 2007 does appear to vary the terms of the agreement the parties entered.

This appears to be contrary to the Code ofProfessional Conduct for members of the Law Society of Alberta. This may in fact be a rule that at times is honoured more in the breachthan the observance, but the debate on this point may be irrelevant due to the clear wording of the agreements involved. The language ofthe Divorce and Property Agreement could not be stronger. There is no condition precedent referenced in either Agreement. In my view

trying to establish a “condition precedent” to the Divorce and Property Contract or the Share Transfer Agreement offends the parole evidence rule . [ 33 ] The Share Transfer Agreement, in paragraph 10.03, specifically states that this is the entire agreement: 10.03 This Agreement, including the Schedules hereto, constitutes the entire agreement between the parties hereto and there are not and shall not be any verbal statements, representations, warranties, undertakings or agreements between the parties with respect to the subject matter hereof and this Agreement may not be amended or modified in any respect except by written instrument signed by the parties hereto. [ 34 ] Therefore, the Court must accept the two Agreements on their face value without any reference to a condition precedent.

When that is done there is no doubt that Dominic D’Agnone had a clear obligation to provide an asset, as agreed. The other shareholders refused to provide their approval and they effectively controlled 578.

Further, by continuing to pay out dividends and bonuses to Dominic D’Agnone, the remaining shareholders, and the corporate entity, 578, with full knowledge of Angela D’Agnone’s beneficial interest, participated in a conspiracy to prevent Angela D’Agnone from receiving what she was lawfully entitled to and those remaining shareholders knowingly assisted Dominic D’Agnone in his enterprise. [ 35 ] It is important to note that 578, which was controlled by at least George Kollias and Joe Strojwas, continued to declare bonuses and dividends up until November 2013.

By engaging 578 George Kollias and Joe Strojwas have clearly brought 578, which they control, within the confines of this civil conspiracy. Indeed, this continued up to the eve of trial as George Kollias and Joe Strojwas paid out their legal fees and that of 578 from 578 and credited those payments to the shareholder’s account of Dominic D'Agnone. [ 36 ] If I am wrong on this point I could possibly have been persuaded by the evidence of the person who remained at the centre of this failed transaction. The one person who knew his business partners in 578 was Dominic D’Agnone.

He was aware of the “Oral Agreement” and he promised unqualifiedly to transfer his shares, but he did not take the witness stand. By simply relying on his admissions in the Notice to Admit Facts and the evidence of one witness that his counsel called, Dominic D’Agnone closed his case. Specifically, his counsel stated: Sir, and in reviewing the notices to admit with my client, Mr. D’Agnone, he has nothing further to add, and I won’t be calling him. There is no need. He has nothing to – to elaborate on. It’s all been said. ...

So that closes the case for this defendant. [ 37 ] The Plaintiff asks that this Court draw an adverse inference against Dominic D’Agnone for failing to testify. While the drawing of an adverse inference by a Trial Judge is discretionary it is important to look at the total circumstances. First, Dominic D’Agnone is not “any” witness. He is the principle Defendant being sued by the Plaintiff. He was the only other party to the contract between himself and the Plaintiff. He knew his two business partners best and the circumstances in this situation cry out for an explanation.

The best person to give this explanation is the Defendant Dominic D’Agnone. It is clear that he has the best explanation, is able to give material evidence of which only he has exclusive control, and there has been no legitimate explanation as to why he did not take the witness stand. His explanation as to why he gave such strong assurances to the transfer of shares in 578 wherein it appears that he could not have obtained his two business partners’ approval would have been of interest to the Court. [ 38 ] Failing to take the stand can leave the Court with only one conclusion.

Any evidence he would tender could not assist him in any way, shape or form. The Court must draw an adverse inference.

This principle of our law is well established by such noted authorities as Wigmore, Evidence in Trials at Common Law , 1979: The failure to bring before the tribunal some circumstances, documents or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.

These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstance which makes some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted. [ 39 ] It also has a history dating back centuries: R v Burdett (1820), 4 B & Ald 95 (Eng. K.B.), at 11 Bets, J. stated: Every man will do what he can to shield himself from ...the burden of punishment. We all know this.

We all expect it...A failure to offer an explanation must tend to create a belief none exists. [ 40 ] In Blatch v Archer [ (1774), 98 ER 969 (Eng. K.B.) ]; [1895] AC 310 it was stated: If the opposite party has it in his power to rebut it by evidence, and yet offers none, then we have something like an admission that the presumption is just. While the two remaining shareholders deny they are obligated in any way to Angela D'Agnone, their explanations for what they did are somewhat understandable.

Notwithstanding their position I have found that they and 578 have participated in a civil conspiracy at the point when they began authorizing bonuses and dividends to be paid out to Dominic D'Agnone alone.

However, the failure of Dominic D'Agnone to rebut the Plaintiff’s claim by the taking the witness stand is not understandable and the Court has no choice but to draw an adverse inference against Dominic D'Agnone as Rule 8.15 of the Alberta Rules of Court has not been complied with; based on the authorities cited above; and the recent case of the Chief Justice of our Court in Howard v Sandal 2008 CarswellAlta 82 .

3. Is the Defendant Dominic D'Agnone in a fiduciary position or unjustly enriched by promising to transfer his 1/3interest in 578 and then not fulfilling that promise and continuing to conduct business through 578 and receive dividends andbonuses? [41] Dominic D'Agnone had agreed to transfer his shares in 578 and did in fact receive all his real estate and corporate assetspursuant to the same agreement.

When it became apparent that Dominic D'Agnone was not transferring his shares in 578, the Plaintiffdid not cause a $63,800.00 payment through a company she controlled to a separate company controlled by Dominic D'Agnone withinthe 60 day time period in the Agreement. Further, a final equalization payment by Dominic D'Agnone to Angela D'Agnone was not paid within the 60 days of March 30th, 2007. Presumably, the refused payment by the Plaintiff through a separate company was to be a self-help set-off because of the 578 share problem.

The non-payment by Dominic D'Agnone to Angela D'Agnone appears to be a further self-help remedy by Dominic D'Agnone. [42] Since March 30th, 2007, when Dominic D'Agnone had agreed to transfer his shares in 578, up to November 14th, 2013, hereceived the sum of $210,908.75 in bonuses and dividend payments from 578. As well, he continued to receive the benefit of ashareholder’s loan to 578, a loan that he had agreed to assign to the Plaintiff.

To this day Dominic D'Agnone remains in possession andownership of 1/3 of the shares in 578 and 578 continues to own assets in excess of $500,000.00. [43] The Plaintiff argues that she has had a beneficial interest in the shares since March 2007 and by converting those bonus anddividend funds for his own benefit and use Dominic D'Agnone has committed an unlawful conversion and breach of trust.

This is a clearcase of unjust enrichment of the Defendant, argues the Plaintiff, and she has been deprived of all of the benefits of her anticipated shareownership in 578. [44] In order to ground a claim for unjust enrichment, the Plaintiff must establish an enrichment, a corresponding deprivation, andno valid reason for the enrichment.

The key authority on this point is the decision of Justice Dickson in Pettkus v Becker (SCC), 1980 CarswellOnt 299 where he refined the remedy of construction trust and applied it to unjust enrichment situations: ...but, for the principle to succeed, the facts must display an enrichment, a corresponding deprivation and the absence of any juristicreason – such as a contract or disposition of law – for the enrichment. (at para 25) It is not enough for the court simply to determine that one spouse has benefited at the hands of another and then to require restitution.

Itmust, in addition, be evident that the retention of the benefit would be ‘unjust’ in the circumstances of the case. (at para 39) As for the third requirement, I hold that where one person in a relationship...prejudices herself in the reasonable expectation of receivingan interest in property and the other person in the relationship freely accepts benefits conferred by the first person in the circumstanceswhere he knows or ought to have known of that reasonable expectation, it would be unjust to allow the recipient of the benefit to retainit. (at para 41) [45] The argument of the Plaintiff and the authority relied upon is compelling.

The Plaintiff executed the Divorce and PropertyAgreement in good faith and fulfilled her obligations in the agreement by transferring her interests in property to Dominic D'Agnone.Since March 2007 Dominic D'Agnone has had the appreciating benefit of those assets he received from Angela D'Agnone.Simultaneously Dominic D'Agnone has enjoyed ownership of 1/3 interest in 578 including payment of bonuses and dividends and hasbeen able to take advantage of the shareholder’s loan.

This has all been done to Angela D'Agnone’s detriment and for no juristic reason. [46] This Court finds that Dominic D'Agnone is a constructive trustee and has been clearly unjustly enriched by retaining theshares of 578 to the clear detriment of the Plaintiff Angela D'Agnone. [47] The Plaintiff has made a claim for unjust enrichment specifically against Joe Strojwas in relation to his company’s purchasefrom 578.

While at first blush it may seem like a conflict of interest and it may appear to be a questionable transaction, I am not satisfiedthat the price differential is such that Joe Strojwas was unjustly enriched. The evidence before me was clear that the other shareholderswere happy to sell the property as it was becoming an expense and no other purchasers came forward. Accordingly, the Plaintiff has notconvinced the Court that Joe Strojwas was an unjustly enrichment. 4.

Is the claim of Angela D'Agnone barred by the Limitations Act of Alberta? [48] The Defendant Dominic D'Agnone pleads in the alternative, that much of the Plaintiff’s claim is barred due to the expirationof the applicable limitation period in the Limitations Act, RSA 2000 c L-12. The Defendants, George Kollias, Joe Strojwas and 578 alsoplead that the Plaintiff’s claim is statute barred by virtue of s3 of the Limitations Act. [49]

Section 3 of the Limitations Act is as follows: 3(1) Subject to subsections 1.1 and 1.2 and

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the clamant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury assuming liability on the part of the defendant, warrants bringing a proceedings, or (b) 10 years after the claim arose,

whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of theclaim. [50] Counsel for Dominic D'Agnone makes three points as to why the Plaintiff’s claim is out of time. First, he argues that therevelation of the Oral Agreement in the Statement of Defence of Kollias and Strojwas cannot serve to restart the limitation clock. Theunderlying facts which include the Shareholder’s Agreement that the Plaintiff knew about all along was part of the process in getting theshares transferred.

The Oral Agreement was not legally binding and in reality not particularly revelatory. Therefore the Plaintiff has noreal grounds to use that admission to “pull herself up by her own bootstraps”, to avoid the bar in the Limitations Act. [51] Further, the Plaintiff’s argument that the ongoing negotiations extend the limitation period cannot succeed according to theDefendants. No standstill agreement or explicit understanding was ever entered.

With no standstill agreement or explicit understandingthat the negotiations meant to delay the commencement of the limitation date, the Plaintiff should have known or clearly ought to haveknown that the delict which was the cause of her loss was well past the two year limitation date prior to the commencement of her actionin January 2014. [52] The third and final argument regarding the Limitations Act by Dominic D'Agnone concerns the issue of payments by 578 tohim in satisfaction of his shareholder’s loan.

The argument of the Plaintiff is the ongoing payments that Dominic D'Agnone received onhis shareholder’s loan account revived the limitation period with each payment. While this may be a valid argument for the two yearsprior to the commencement of the claim anything before that two year period is statute barred according to counsel for DominicD'Agnone. [53] Angela D'Agnone argues that the Supreme Court of Canada in Blueberry River Indian Band v Canada (SCC), [1995] 4 SCR 344 is authority supporting her argument that her claim is not out of time.

In that case the Indian Band commenceda cause of action in September 1978 about a year after discovering the relevant facts concerning certain mineral transfers which hadtaken place between 1948 and 1956. The Plaintiff argues for a very broad definition of discoverability based on Blueberry River IndianBand v Canada: This

section and its equivalents elsewhere embrace a broad definition of discoverability...I conclude that the Crown, having firstbreached its fiduciary duty to the Indians by transferring the minerals to the DVLA, committed a second breach by failing to correct theerror on August 9, 1949, when it learned of the error’s existence and the potential value of the mineral rights. (emphasis added – para 119) This action was filed on September 18, 1978. Any losses stemming from transfers after August 9, 1949, are therefore still permissibleunder the s8 general limitation.

As of this date, 6.75 sections of the 31 transferred to the DVLA remained in the hands of the DVLA. Hadthe DIA discharged its duty to the Indians, the mineral title would have been returned to them.

Instead, mineral title was passed on to theveterans and in the case of 2.5 sections, directly conveyed to oil companies to the credit of the Consolidated Revenue Fund. (para 119) Until approached by a member of the DIA in 1977, the Bands were ignorant of critical facts in the exclusive possession of the Crown: thefact that the mineral rights were transferred to the DVLA for no consideration; the fact that the DVLA had no right to that transfer; andthe fact that the Crown had in its possession knowledge of the error and the potential value of the mineral rights while it was still withinits power to rectify the error.

The Bands became aware of the true facts only in 1997, placing their writ well within the applicationlimitation period of 6 years. (emphasis added – para 121) [54] Specifically, in relation to Dominic D'Agnone the Plaintiff argues that

section 3 does not act as a bar to her claim becauseclause 11.3 of the Divorce and Property Contract and paragraph 4.04 of the Share Transfer Agreement provide that Dominic D'Agnonewould continue to act in his capacity as a Director and Officer of 578 until such time as 578 would appoint the Plaintiff as a Director andOfficer of the Corporation. [55] Further, paragraph 5.01 of the Share Transfer Agreement included this provision: “the covenants, representations andwarranties of the transfer or...contained in this Agreement or contained in any document or certificate given pursuant hereto shall survivethe closing of the transfer of the shares herein provided and, notwithstanding the said closing, shall continue in full force and effect forthe benefit of the respective parties.” This provision of the contract coupled with the ongoing action of Dominic D'Agnone in deprivingthe Plaintiff of her beneficial interest in the shares make it clear that there is no limitation defence available to Dominic D'Agnone. [56] The Plaintiff argues that Dominic D'Agnone had a continuing contractual duty and obligation and a continuing fiduciary duty to act in the Plaintiff’s best interests subsequent to March 30th, 2007.

The facts clearly disclose that the Defendant Dominic D'Agnonecontinually and repeatedly breached his obligations in this regard by clear acts of omission and co-mission. Accordingly, as it relates toDominic D'Agnone there is no limitation defence available to him and the Plaintiff’s action can proceed fully against him. [57] The liability of George Kollias, Joe Strojwas and 578 can only be founded in that part of the action claiming a civil conspiracyin that they knowingly assisted Dominic D'Agnone in depriving the Plaintiff of her benefit under the contract.

These three Defendants didnot have an ongoing contractual obligation nor did they act as constructive trustees and were not unjustly enriched. Therefore, they canonly partially be held liable for the damages of Angela D'Agnone within the two year limit of the Plaintiff’s filing the statement of claim of January 3rd, 2014.

Therefore, while Dominic D'Agnone is found liable for all the dividends and bonuses he accepted or was entitled to from 578 since March 30th, 2007, the remaining three Defendants namely George Kollias and Joe Strojwas and 578, can only be heldresponsible for the dividends within the limitation period from January 2012 forward, which total $133,908.75.

5. What are the Plaintiff’s Damages? [ 58 ] The Court has found that the Plaintiff’s claim as against Dominic D'Agnone is not statute barred. The Defendant Dominic D'Agnone is liable for failing to disclose the Defendant’s Oral Agreement and liable for failing to act properly as a constructive trustee and becoming unjustly enriched at the Plaintiff’s expense. The Court has also found all three personal Defendants and 578 guilty of a civil conspiracy of depriving Angela D'Agnone of her share ownership. [ 59 ] The next question that must be answered is what are Angela D'Agnone’s damages?

Counsel for Dominic D'Agnone suggests an order declaring the trust be registered at the Personal Property Registry to protect Angela D'Agnone’s interests. Apparently this order could act in perpetuity as an obligation of Dominic D'Agnone to pay and transfer any “net benefits” to Angela D'Agnone from 578. [ 60 ] It would seem to this Court that any remedy granted to the Plaintiff must be a complete and final remedy with no lingering obligations, particularly as it relates to 578.

Parties are entitled to finality and given the actions of Dominic D'Agnone to date it would appear that his counsel’s suggestion in terms of a declaration of trust would simply be a recipe for further litigation. The remedy that the Plaintiff seeks and is entitled to is a remedy that is clean cut and finalizes any and all dealings with the Defendants. [ 61 ] The Court has considered the Plaintiff’s calculation of damages as it relates to the loss and has considered the Plaintiff’s claim that there be an order declaring the Defendant holding the shares in trust for the Plaintiff.

It is the Court’s view that the evidence on which the values are asserted by the Plaintiff is unreliable and the Court would be speculating as to what the fair market value of the assets of 578 would be. Accordingly, the damage award that follows is based on the agreement between the parties using the numbers assigned by the parties in that agreement. [ 62 ] There appears to be some ambiguity in the remedy sought in the Statement of Claim and in the Plaintiff’s brief. The Court, in awarding a damage award, is seeking to make the Plaintiff whole as a result of her loss.

The Court cannot force the Plaintiff’s name as a registered owner of the shares in 578. It is assumed that she does not want that. The Court cannot order specific performance in this case. Dominic D'Agnone will continue to own the shares as a result of this decision but he is liable for the damage award herein. [ 63 ] The evidence makes clear that what the Plaintiff actually bargained for when the agreement was reached in 2007 was an asset (100 Class A shares of 578) with a value of $233,330.00 plus the value of the shareholder’s loan of $47,167.00.

In view of the fact that she did not obtain the 578 shares and the assignment of the shareholder’s loan the net effect of what she did not receive is as follows: 1. Value of 100 Class A Shares owned by Dominic D'Agnone and agreed to be transferred to Angela D'Agnone – March 30 th 2007 $233,330.00 2. Value of Dominic D'Agnone’s shareholder loan to be transferred and assigned to Angela D'Agnone - $47,167.00 TOTAL $280,497.00 [ 64 ] Dominic D'Agnone argues for a set-off for an amount that was to be paid between two separate companies, one owned by Angela D'Agnone and one owned by Dominic D'Agnone.

In reply to the set-off argument counsel for Angela D'Agnone argues for a further set-off. There is no evidence before this Court that the company controlled by Dominic D'Agnone ever made formal demand of the other corporate entity or of Angela D'Agnone for an amount owing under the agreement.

As those funds were clearly to be paid by and to other corporate entities owned by the parties, and who are not subject to this litigation, it seems that set-off is best left for a separate claim between the corporate entities. [ 65 ] The Share Transfer Agreement stipulated that any amounts due which were not paid bore interest at the rate of 6% per annum. The mode of compounding the interest is not specified so therefore it can only be assumed to be simple interest compounded annually.

Therefore, the calculation of the damage award for the amount of $280,497.00 shall attract 6% simple interest compounded annually from March 2007 to the date of this Judgment, for a total amount of interest of $189,546.65. The principal plus interest results in a damage award of ($280,497.00 principal plus $189,546.65 interest) $470,043.65 for which the Defendant Dominic D’Agnone is solely liable. [ 66 ] In addition, Dominic D'Agnone is liable for damages in the sum of $210,908.75 for the misappropriated bonus and dividend payments up to November 14 th , 2013.

Of that amount the Defendants George Kollias and Joe Strojwas and 578 are jointly and severally liable with Dominic D'Agnone for the portion of the dividend payments that are within the limitation period. The amount of those payments from January 2012 to the date of trial is $133,908.75. [ 67 ] The total damage award in favour of Angela D'Agnone as against Dominic D’Agnone is therefore $680,952.40 plus appropriate pre-judgment interest on the portion of that award which deals with bonus and dividend payments, namely $210,908.75. There will be no order or declaration as to the shares in 578.

Dominic D'Agnone continues to own those shares. [ 68 ] The total damage award in favour of Angela D'Agnone as against George Kollias, Joe Strojwas, and 578 is $133,908.75, plus appropriate pre-judgment interest. [ 69 ] As to costs, paragraph 25 of the Divorce and Property Agreement states that if a party must enforce the contract the party who has not complied with the terms of the contract shall pay all costs on a solicitor/client basis. If the parties have any difficulty in apportioning the costs among all the Defendants they are at liberty to contact the Court for resolution of that issue within 90 days of the

Judgment. Heard on the 1 st , 2 nd , 3 rd , and 4 th day of December, 2015. Dated at the City of Lethbridge, Alberta this 10 th day of February, 2016. D.K. Miller J.C.Q.B.A. Appearances: Paul Kazakoff, Butler Kazakoff & Associates for the Plaintiff, Angela D'Agnone Richard A. Low, Richard A. Low & Company LLP for the Defendant, Dominic D'Agnone Ken Torry, and Urvil U.Thakor, Torry Lewis Abells LLP For the Defendants, 530578 Alberta Ltd., George Kollias and Joe Strojwas