2017 QCCA 718, 2017 QCCA 718

Singer c. 1867054 Alberta Inc. (GF Inc.) 2017 QCCA 718 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026736-173 (500-17-092838-161) MINUTES OF THE HEARING DATE: May 4, 2017 THE HONOURABLE ROBERT M. MAINVILLE, J.A. APPLICANT COUNSEL JACK SINGER Mtre Jonathan feingold (Robinson Sheppard Shapiro sencrl) RESPONDENTS COUNSEL 1867054 ALBERTA INC. (FORMERLY GF INC.) GREGORY MARTIN DOUGLAS MARTIN Mtre PABLO GUZMAN (DLA Piper (Canada) s.e.n.c.r.l.) DAN LETT BUNZL PLC BUNZL DISTRIBUTION USA INC. BUNZL CANADA INC. Mtre LOUIS DUMONT Mtre JULIEN BRUNELLE-DÉSILETS (Dentons Canada LLP)

DESCRIPTION: Application for leave to appeal from a judgment terminating the proceeding rendered on April 3, 2017, by the honourable Mr. Justice Robert Castiglio of the Superior Court, District of Montreal. (Articles 30, para. 2 and 357 C.C.P.) Application to suspend the provisional execution (Article 660, al. 2 C.C.P.) Clerks: Elisabeth Lanctôt and Marie Gamelin Courtroom: RC-18 HEARING 9:30 Commencement of the hearing. Parties have been excused from attending. BY THE JUDGE: Judgment – see page 4. Conclusion of the hearing. (

s) Elisabeth Lanctôt and Marie Gamelin Clerks BY THE JUDGE JUDGMENT [ 1 ] Jack Singer (“Singer”) seeks leave to appeal a judgement dated April 3, 2017 of the Superior Court, district of Montreal (the Honourable Robert Castiglio). * * * * * [ 2 ] Singer sued 1867054 Alberta Inc. (“GF”) (

a) for an amount of $2,069,550 as a finder’s fee which would be owed to him pursuant to a verbal undertaking following the sale of GF’s assets to Bunzl PLC, as well as (

b) for punitive damages in the amount of $2,200,000.

Singer submits these amounts are owed to him as a result of having allegedly communicated to GF the name of Bunzl PLC as a potential buyer in a telephone conversation with Gregory Martin during which his right to a finder’s fee would have been verbally confirmed to him. [ 3 ] Singer also sued Bunzl PLC, Bunzl Distribution USA Inc. and Bunzl Canada Inc. (collectively referred to as “Bunzl”), Dan Lett (“Lett”), an officer of Bunzl, as well as Gregory and Douglas Martin, officers of GF, for the same amounts alleging that they deliberately and in bad faith circumvented him in order to conclude the acquisition of the assets of GF by Bunzl. [ 4 ] Finally, Singer sued Gregory Martin personally in an amount of $100,000 for allegedly uttering offensive, hurtful and degrading comments during the telephone conversation which would have confirmed his finder’s fee. [ 5 ] Upon an application pursuant to articles 51 and 168(2) of the Code of Civil Procedure (“ C.C.P. ”), the judge dismissed the action against Bunzl and Lett on the ground that it was without merit and abusive.

Pursuant to

article 54 C.C.P. , the judge also ordered Singer to reimburse Bunzl and Lett an amount of $56 070.83 representing a part of the legal fees which they had incurred in their defence.

[ 6 ] Upon a separate application, the judge dismissed the claim for punitive damages against GF, Gregory Martin and Douglas Martin on the ground that the allegations of the action could not sustain such a claim. The judge also dismissed the claim against Gregory Martin and Douglas Martin personally for the finder’s fee. [ 7 ] As a result, the action was allowed to proceed against GF with respect to the finder’s fee and against Gregory Martin personally for allegedly uttering offensive, hurtful and degrading remarks. * * * * * [ 8 ] Singer submits that Lett – and consequently Bunzl – engaged his liability in that he (

a) knew about the finder’s fee mandate which Singer held from GF; (

b) acknowledged that Singer initiated the contact between Bunzl and GF; (

c) undertook to inform Singer of any future contacts and dealings between Bunzl and GF and failed to do so; and (

d) circumvented Singer to conclude the acquisition of GF’s assets. [ 9 ] Singer further submits that Gregory and Douglas Martin also engaged their personal liability by circumventing Singer in the sale of GF’s assets to Bunzl. [ 10 ] The Superior Court judge dismissed the suit against Bunzl, Lett, Gregory and Douglas Martin largely on the basis that no precise facts sustaining the claims against them were set out in the statement of claim or revealed from the exhibits or from Singer’s out- of-court examinations. [ 11 ] Consequently, an appeal of the judgement with respect to the dismissals of the suit against Bunzl, Lett, Gregory and Douglas Martin would principally involve a reassessment of the exhibits and of Singer’s examinations.

Since no question of principle, new issue or issue of law that has given rise to conflicting judicial decisions would be at issue, I am of the view that leave to appeal should be denied with respect to these dismissals. [ 12 ] I am further of the view that the award of punitive damages to Bunzl and Lett does not justify granting leave.

The awarded amount of $56 070.83 is below the usual threshold for an appeal and no question of principle or of law is at issue with respect to the determination of that amount. * * * * * [ 13 ] Singer further alleges that an amount of $2,200,000 is owed to him by GF in punitive damages as a result of « deliberate and bad faith dealings, which constitute unlawful and intentional interference with his charter right to the peaceful enjoyment of his property » (par. 57 of the Re-Amended Originating Application). [ 14 ] The judge dismissed that claim on the basis that a refusal to honour a contractual debt does not usually give rise to punitive damages.

The judge further concluded that Singer offers no explanation, in his statement of claim or otherwise, as to how the refusal by GF to pay his finder’s fee (if it is indeed owed) would constitute an intentional violation of his fundamental human rights. [ 15 ] In these circumstances, an appeal on the issue of punitive damages would be doomed to fail. * * * * * [ 16 ] In conclusion, leave to appeal should be denied. As a result, the application to suspend the provisional execution of the judgement becomes moot and should therefore also be denied.

Singer’s claim against GF for the finder’s fee will therefore continue before the Superior Court without the other defendants as will his claim against Gregory Martin personally for allegedly uttering offensive, hurtful and degrading remarks. FOR THESE REASONS, THE UNDERSIGNED JUDGE : [ 17 ] DISMISSES the application for leave to appeal; [ 18 ] DENIES leave to appeal the judgment rendered on April 3, 2017 by the Honourable Robert Castiglio of the Superior Court; [ 19 ] DISMISSES the application to suspend the provisional execution of that judgement; [ 20 ] THE WHOLE with costs. robert m. mainville , J.A.