) ) D. G. Giles v. COSMAN’S FURNITURE (1972) LTD.,, 2018 MBCA 72

Citation: 63833 Manitoba Corporation v Cosman’s Date: 20180712 Furniture

(1972) Ltd et al, 2018 MBCA 72 Docket: AI17-30-08873 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : 63833 Manitoba CORPORATION ) ) (Plaintiff) Appellant ) ) - and - ) ) COSMAN’S FURNITURE

(1972) LTD. ) P. Halamandaris and and GEOFFREY COSMAN ) B. E. Roach ) for the Appellants (Defendants) Respondents ) ) AND BETWEEN: ) ) D. G. Giles and COSMAN’S FURNITURE

(1972) LTD., ) A. M.

Friesen COSMAN REALTY LIMITED and ) for the Respondents GEOFFREY COSMAN ) ) (Plaintiffs by Counterclaim) Respondents ) ) Appeal heard: - and - ) February 13, 2018 ) 63833 MANITOBA CORPORATION, ) LOIS WEIDMAN, BARBARA COSMAN, ) 5325242 MANITOBA LTD., LOIS ) Judgment delivered: WEIDMAN and BARBARA COSMAN AS ) July 12, 2018 EXECUTRIXES OF THE ESTATE OF ) MEYER COSMAN, and LOIS WEIDMAN ) and BARBARA COSMAN AS THE ) EXECUTRIXES OF THE ESTATE OF ) RITA COSMAN ) ) (Defendants by Counterclaim) Appellants ) On appeal from 2017 MBQB 15 PFUETZNER JA [ 1 ] This appeal arises out of a dispute over what was once a harmonious family business.

Two sisters, Lois Weidman (Lois) and Barbara Cosman (Barbara), are pitted against their brother, Geoffrey Cosman (Geoffrey), over events that occurred, for the most part, during the lifetime of their parents, Meyer Cosman (Meyer) and Rita Cosman (Rita). Background [ 2 ] Cosman’s Furniture

(1972) Ltd. (Cosman’s Furniture) operated a furniture business that had been in the Cosman family since 1916. Geoffrey began working in the business with Meyer in 1971. Neither Lois nor Barbara were involved in the business. [ 3 ] Prior to 1996, 63833 Manitoba Corporation (63833) was the sole shareholder in Cosman’s Furniture. On October 31, 1996, Cosman’s Furniture agreed to purchase 63833’s shares for cancellation. The purchase price of $340,000 was paid by Cosman’s Furniture issuing a promissory note in that amount to 63833. The promissory note was non-interest bearing and called for

payment in equal monthly installments over a period of 10 years. Geoffrey became the sole shareholder in Cosman’s Furniture by subscribing for 100 newly issued common shares. [ 4 ] The shareholders of 63833 were, at all relevant times, both before and after the 1996 transaction: Geoffrey as to 10 per cent of the Class A common shares; Rita as to 20 per cent of the Class A common shares; and Meyer as to 70 per cent of the Class A common shares.

Meyer also owned 100 per cent of both the Class B non-voting preferred shares and the Class C voting preferred shares (Meyer’s Class C shares). [ 5 ] After the 1996 transaction, until about early 2005, Cosman’s Furniture made periodic payments on the promissory note to 63833 totalling $34,000 annually. The payments were received by Meyer and, each year, a dividend in the amount of $34,000 was declared by 63833 on Meyer’s Class C shares. The dividend resolutions were passed by the directors of 63833, being Meyer and Geoffrey.

In 2008, the final balance owing on the promissory note was paid. [ 6 ] Between 1996 and 2004, 63833 did not carry on an active business. It held some investments and also owned a surface parking lot adjacent to Cosman’s Furniture’s store (the parking lot). 63833 earned rental income from the parking lot. From 1996 to 2004, Geoffrey managed the affairs of 63833, although Meyer was also a director of 63833. [ 7 ] The relationship between Meyer and Geoffrey began to deteriorate in 2004 after Meyer misunderstood the nature of an investment that Geoffrey arranged on behalf of 63833.

Matters came to a head on November 10, 2004, when Meyer sent a letter to Geoffrey setting out a list of demands. Unfortunately, as time passed, Meyer became increasingly mistrustful of Geoffrey. [ 8 ] In June 2006, Meyer exercised the voting rights on his Class C shares to remove Geoffrey as a director and officer of 63833 and to appoint Lois in his place.

Meyer then resigned as a director, leaving Lois as the sole director of 63833. [ 9 ] Between December 2005 and July 2006, Lois drew at least four cheques payable to Meyer on 63833’s bank account, namely: (1) $11,000 drawn December 31, 2005; (2) $34,000 drawn June 2, 2006, described on the cheque as “2006 Dividend”; (3) $10,000 drawn June 29, 2006, described on the cheque as “Shareholder Draw”; and (4) $40,000 drawn July 4, 2006, described on the cheque as “Shareholder Draw”.

There are no directors’ resolutions authorizing these payments. [ 10 ] In July 2006, Meyer called a special meeting of the holders of the Class A common shares to consider and approve the sale of the parking lot to Lois’s childre n (or their nominee) for a sale price of $22,484. The value of the parking lot at the time was $110,000.

The minutes of the meeting state: “Shareholder Geoffrey Cosman indicated that . . . he would not object to the sale of the [parking lot] as provided for in the Notice of Meeting so long as the sale price for the [parking lot] was equal to its fair market value.” [ 11 ] The sale of the parking lot was approved at a price of $22,484 with Lois voting in favour of the sale as proxy for Meyer and Rita. 63833 sold the parking lot to 5325242 Manitoba Ltd. (5325242), the nominee of Lois’s children, pursuant to an agreement of purchase and sale dated July 10, 2006. [ 12 ] Meyer died on August 12, 2006.

Rita died on December 12, 2006. Lois and Barbara are the executors of both estates. Under his will, Meyer’s estate passed to Rita. On Rita’s death, her estate passed to Lois and Barbara. [ 13 ] In 2009, this litigation commenced by 63833 issuing a statement of claim against Cosman’s Furniture and Geoffrey claiming, amongst other things, repayment of an inter-company loan in the amount of $85,501. [ 14 ] Cosman’s Furniture and Geoffrey responded with a counterclaim seeking, amongst other things, a remedy under

section 234 of The Corporations Act , CCSM c C225, in respect of oppressive conduct by 63833 and its directors and shareholders. [ 15 ] Once the litigation is resolved, the appellants intend that 63833 will be dissolved. Reasons of the Trial Judge [ 16 ] In detailed reasons, the trial judge made careful findings of fact and dealt with the parties’ respective claims. I will mention only the claims that are relevant to the appeal. [ 17 ] The trial judge granted judgment in favour of 63833 against Cosman’s Furniture in the amount of $85,501.

He found that this debt was non-interest bearing and concluded, “In view of this evidence, I am not prepared to find that any pre-judgment interest is payable” (at para 186). However, he did award postjudgment interest. 63833 appeals the interest award, arguing that prejudgment interest should have been awarded. [ 18 ] As for Geoffrey’s claim for an oppression remedy, the trial judge made two important findings.

First, he found that, in taking the steps that they did in connection with the sale of the parking lot by 63833, Meyer, Lois and Rita “acted in an oppressive manner towards Geoffrey as a shareholder in 63833” (at para 220). The trial judge noted that the sale of the parking lot was done at an unreasonably low price well below market value and was done solely for the benefit of Lois and her children. The trial judge was satisfied that both Meyer and Lois were acting in bad faith.

The finding of oppressive conduct in connection with the sale of the parking lot has not been appealed. [ 19 ] Second, the trial judge found that “Meyer and Lois acted oppressively towards Geoffrey in that they paid dividends and gave shareholder loans to Meyer and Rita when apparently no dividends or shareholder loans were paid to Geoffrey” (at para 237). The appellants take issue with this finding, as well as with the related remedy, which is discussed further below. [ 20 ] The trial judge ordered a series of remedies “[i]n order to rectify the oppressive actions of Meyer and Lois” (at para 238).

The appellants appeal several aspects of the remedial orders, as I will later explain.

[ 21 ] The remedies include: • An order that 5325242 transfer title to the parking lot back to 63833.

A current appraisal is to be done on the parking lot and both 5325242 and 63833 are to provide all of their books and records and an accounting of their operations since September 30, 2009 to the present. • A record is to be produced of all of the dividends and/or shareholder loans that were paid by 63833 and/or 5325242 to Meyer, Rita, their estates or beneficiaries from October 31, 1996 to the present. “Any dividends owed to Geoffrey are to be paid” (at para 238(e)). • After the above have been implemented, the present fair value of Geoffrey’s shares in 63833 is to be determined.

Also, the fair value of Geoffrey’s shares in 63833 is to be determined as of July 2006 (including the then market value of the parking lot). • The majority shareholders of 63833 are to buy Geoffrey’s shares for their present fair value or their fair value as of July 2006, whichever is higher.

Issues [ 22 ] The appellants raise three primary issues. [ 23 ] First, they argue that the trial judge erred in not awarding prejudgment interest on the judgment in their favour in the amount of $85,501. [ 24 ] Second, they dispute the trial judge’s finding of oppressive conduct regarding the payment of dividends and shareholder loans from 63833 and the remedy granted to rectify this conduct. [ 25 ] Third, while they do not dispute the finding of oppressive conduct in respect of the sale of the parking lot by 63833, they submit that the trial judge erred in the remedy that he granted.

Analysis—Prejudgment Interest [ 26 ] The philosophic rationale for judgment interest (both pre and postjudgment) is to compensate a party for the time value of money that has been withheld from it.

It is not intended to punish the party who has been ordered to pay damages or other compensation (see Bank of America Canada v Mutual Trust Co , 2002 SCC 43 at para 36 ; Dinney v Great-West Life et al , 2007 MBQB 76 at para 2 ; and Manufacturers Life Insurance Co v Pitblado & Hoskin et al , 2009 MBCA 83 at paras 126-50 ). [ 27 ] The entitlement to prejudgment interest is provided in section 80(1) of The Court of Q ueen’s Bench Act , CCSM c C280 (the QB Act ) which states, “Subject to sections 81 and 82, an order shall include an award of interest at the prejudgment rate on the principal sum calculated” . [ 28 ] Section 81(1) of the QB Act prov ides that, “ Where a judge considers it just to do so, the judge may (

a) disallow interest under

section 80” or allow interest at a rate higher or lower than the prescribed prejudgment interest rate. Section 81(2) lists the factors tha t the judge shall have regard to in making such a decision, namely: “ (

a) changes in the quarterly interest rate; (

b) the circumstances of the case; and (

c) the conduct of the proceedings.” [ 29 ] The effect of the QB Act provisions is that a successful plaintiff has a prima facie right to prejudgment interest (see Yukon Helicopters Ltd v Zoochkan , 1994 CarswellMan 447 at para 171 (QB) ; and Trippel et al v Parker et al , 2004 MBCA 72 at para 24 ). The onus is on the party seeking a higher or lower rate to justify a deviation from the presumptive rate. [ 30 ] However, where “there is an agreement between the parties respecting prejudgment interest or compensation in the place of interest” (at

section 82 (

b) of the QB Act ) , sections 80-81 of the QB Act do not apply. Trippel indicates that an interest provision appearing in a contract does not necessarily apply to the payment of interest following a breach of the contract. In the case of a demand loan, the breach is non-payment of the loan after demand has been made.

An agreement between the parties as to post-breach or post- demand interest must be unambiguous. [ 31 ] The appellants’ position is that the non-interest bearing nature of the loan was not a sufficient reason to depart from the presumption of awarding prejudgment interest from the date that demand for payment was made.

Moreover, the appellants argue that the trial judge’s error is magnified by the fact that he awarded prejudgment interest to the respondent Cosman Realty Limited (Cosman Realty) on an inter-company loan from 63833 in the amount of $25,000 when there was no principled distinction between that loan and the one at issue. [ 32 ] The respondents argue that the trial judge properly exercised his discretion and that the circumstances surrounding the two inter-company loans were different. [ 33 ] The financial statements of Cosman’s Furniture for the 2004, 2005 and 2007 fiscal years describe the inter-company loan owing to 63833 as being either “on demand, bearing no interest” or that “[n]o interest was charged during the year and there are no fixed terms of repayment.” Consistent with this are the financial statements of 63833 for the 2006 to 2009 fiscal years which show an unchanged amount owing to it from Cosman’s Furniture. [ 34 ] On the other hand, the only specific reference to the $25,000 inter-company loan from Cosman Realty to 63833 is in the financial statements of 63833 for the 2004 fiscal year.

Note 3 to the statement says: “ In August 2004, Cosman Realty transferred $25,000 to [63833’s] RBC Dominion Securities account for investments in securities. The balance due at September 30, 2004 is $25,000.” There is no indication whether the loan bears interest.

[ 35 ] This reference does not appear in later financial statements of 63833 which were prepared by a different accountant. However, the trial judge accepted Geoffrey’s evidence that the amount was never repaid to Cosman Realty. [ 36 ] The trial judge’s reasons for not awarding any prejudgment interest on the award of $85,501 are brief.

However, implicit in his analysis is a finding that the parties, through the course of conduct of charging no interest on the inter-company loan, intended that no interest accrue after demand for payment. [ 37 ] I am not persuaded that the trial judge made a palpable and overriding error in his implicit finding that an agreement existed to exclude interest after demand. This agreement brings the loan under

section 82 of the QB Act so that sections 80-81 do not apply. [ 38 ] Accordingly, I agree with the respondents that there was a basis for the trial judge to distinguish between the two loans. There was no indication in the financial statements that the $25,000 loan from Cosman Realty to 63833 was agreed to be non-interest bearing or was to bear interest at some other rate.

In the absence of evidence that the parties had reached an agreement on post-demand interest, the trial judge properly awarded prejudgment interest on this sum from the date of filing of the counterclaim in accordance with the QB Act . [ 39 ] I would dismiss this ground of appeal. Analysis—Oppression Remedy in Respect of 63833 [ 40 ]

Section 234 of The Corporations Act defines the statutory oppression remedy. It provides: Application to court re oppression 234(1) A complainant may apply to a court for an order under this section. Grounds 234(2) If, upon an application under subsection (1), the court is satisfied that in respect of a corporation or any of its affiliates (

a) any act or omission of the corporation or any of its affiliates effects a result; or (

b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner; or (

c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner; that is oppressive or unfairly prejudicial or that unfairly disregards the interests of any security holder, creditor, director or officer, the court may make an order to rectify the matters complained of. [ 41 ] A complainant must satisfy two requirements in order to establish entitlement to an oppression remedy. As stated in Wilson v Alharayeri , 2017 SCC 39 (at para 24 ): The two requirements of an oppression claim are equally well known.

First, the complainant must “identify the expectations that he or she claims have been violated by the conduct at issue and establish that the expectations were reasonably held” ( BCE [ Inc v 1976 Debentureholders , 2008 SCC 69 ], at para. 70). Second, the complainant must show that these reasonable expectations were violated by corporate conduct that was oppressive or unfairly prejudicial to or that unfairly disregarded the in​terests of “any security holder, creditor, director or officer,” pursuant to s. 241(2) [of the

Canada Business Corporations Act , RSC 1985, c C-44]. As stated above, the presence of these two elements is not at issue in this appeal. [ 42 ] Broad remedial powers are given to the Court under section 234(3) of The Corporations Act to address the conduct described in section 234(2) . Powers of court 234(3) In connection with an application under this section, the court may make any interim or final order it thinks fit including, without limiting the generality of the foregoing, (

a) an order restraining the conduct complained of; (

b) an order appointing a receiver or receiver-manager; (

c) an order to regulate a corporation’s affairs by amending the articles or by-laws or creating or amending a unanimous shareholder

agreement; (

d) an order directing an issue or exchange of securities; (

e) an order appointing directors in place of or in addition to all or any of the directors then in office; (

f) an order directing a corporation, subject to subsection (6), or any other person, to purchase securities of a security holder; (

g) an order directing a corporation, subject to subsection (6), or any other person, to pay to a security holder any part of the moneyspaid by him for securities; (

h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or anyother party to the transaction or contract; (

i) an order requiring a corporation, within a time specified by the court, to produce to the court or an interested person financialstatements in the form required by

section 149 or an accounting in such other form as the court may determine; (

j) an order compensating an aggrieved person; (

k) an order directing rectification of the registers or other records of a corporation under

section 236; (

l) an order liquidating and dissolving the corporation; (

m) an order directing an investigation under

Part XVIII to be made; and (

n) an order requiring the trial of any issue. [43] While section 234(3) of The Corporations Act gives broad discretion to the Court to fashion an appropriate remedy foroppression, the discretion is not unlimited. The purpose of the remedy is to “rectify the matters complained of” (at section 234(2)) and toredress the inequities between the parties.

It is not to punish the wrongdoer or to provide a windfall beyond the reasonable expectationsof the complainant (see Naneff v Con-Crete Holdings Ltd, (ON CA), 1995 CarswellOnt 1207 at para 22 (CA); andWilson at paras 26-27). [44] The reasonable expectations of the complainant is a key consideration in determining an appropriate remedy. The Courtmust seek to strike a balance between addressing those reasonable expectations and avoiding unnecessary interference in thecorporation’s affairs. A remedy should go no further than necessary to redress the unfairness (see Naneff at paras 29, 32; and Wilson atpara 27).

In other words, the Court should strive to grant the least obtrusive form of relief that will satisfy the need to rectify the matterscomplained of. [45] The statutory oppression remedy contemplates that relief may be ordered against not only the corporation, but otherparties (see Wilson at para 29). The imposition of personal liability on directors or officers of a corporation under the oppression remedywas considered in Budd v Gentra Inc, (ON CA), 1998 CarswellOnt 3069 (CA).

The principles established in Buddwere adopted by the Supreme Court of Canada in Wilson. [46] The Budd test for when personal liability may be imposed on a director or officer has two parts. First, the oppressiveconduct must be properly attributable to the director or officer because he or she is implicated in the oppression by his or her actions orfailure to act (see Wilson at para 47). Second, the imposition of personal liability must be “fit in all the circumstances” (Wilson at para48).

As for the second part of the Budd test, there are several factors that can properly be taken into account by a court in determiningwhether the imposition of personal liability is fit in a particular case.

For the purposes of this appeal, the relevant factors includewhether the director derived a personal benefit (see Wilson para 49); whether a remedy against the corporation would unduly prejudiceother stakeholders in the corporation (ibid); and whether the director acted in bad faith (see Wilson at para 50). [47] The standard of review for a remedy ordered under section 234(3) of The Corporations Act is deferential. An appellatecourt should not intervene unless there has been an error in principle or the decision is otherwise unjust (see Wilson at para 59; andNaneff at para 17).

Payments from 63833 [48] The appellants raise several issues regarding the trial judge’s finding of oppressive conduct by Meyer and Lois in thepayment of dividends and shareholder loans and the related remedy, which essentially involves an accounting and payment of Geoffrey’sshare of dividends paid since October 31, 1996. The appellants say that the trial judge erred in ordering a remedy reaching back to 1996when there is no evidence or finding by the trial judge of any oppressive conduct prior to 2005.

In addition, they argue that the orderthat “[a]ny dividends owed to Geoffrey are to be paid” (at para 238(e)) is so broad as to include a share of the cumulative total of$340,000 of dividends paid from 63833 to Meyer on his Class C shares with respect to the proceeds of the promissory note given on thesale of Cosman’s Furniture (the purchase price dividends). The appellants submit that Geoffrey never had a reasonable expectation thathe would receive any part of the purchase price dividends.

Indeed, Geoffrey approved the payment of the purchase price dividends toMeyer by signing directors’ resolutions. [49] The appellants concede that Geoffrey was no longer managing the affairs of 63833 at the time that the four impugnedcheques totalling $95,000 were drawn by Lois in favour of Meyer on 63833’s bank account. Having said that, the appellants maintainthat the cheque drawn June 2, 2006 for $34,000 represented part of the purchase price dividends and that the other payments wereconsistent with management fees previously paid to Meyer with Geoffrey’s approval.

[ 50 ] In argument, the respondents made, properly in my view, two important concessions. First, they concede that Geoffrey should not receive any share of the purchase price dividends paid to Meyer.

Second, they do not take the position that Geoffrey should receive any share of any other payments from 63833 that he personally approved by way of directors’ resolutions including, for example, management fees paid to Meyer. [ 51 ] However, the respondents argue that the accounting of payments beginning on October 31, 1996, as ordered by the trial judge, is appropriate because it may uncover other payments made from 63833 that were not recorded in the minutes and about which Geoffrey was unaware. [ 52 ] I am not persuaded that the trial judge erred in finding that Meyer and Lois acted oppressively towards Geoffrey in making payments from 63833 after the breakdown of Geoffrey and Meyer’s relationship in late 2004 (with the exception of any payments to Meyer of purchase price dividends).

The trial judge implicitly found that Geoffrey had a reasonable expectation that, once Meyer received full payment of the purchase price dividends, any further distributions from 63833 would be made proportionately to all the holders of the Class A common shares. I am not persuaded that the trial judge made a palpable and overriding error in this finding. [ 53 ] However, I agree with the appellants that there is no evidence of oppressive conduct before 2005, nor was this alleged at trial.

In fact, Geoffrey’s evidence was that he personally managed 63833’s affairs until late 2004. [ 54 ] In my respectful view, the trial judge erred in principle in granting a remedy that is overly broad. In light of the evidence and the concessions made by the respondents, there is simply no basis to order an accounting of dividends and payments out of 63833 back to 1996. [ 55 ] Accordingly, I would allow this ground of appeal in part. The record of dividends, shareholder loans or advances shall be produced from November 10, 2004 to the present.

Geoffrey shall be entitled to 10 per cent of the amount of those dividends, shareholder loans or advances with the exception of any purchase price dividends or amounts already paid to him. [ 56 ] In accordance with the Budd test, I would impose the obligation to pay any amount owing to Geoffrey on the individuals who took

part in the oppressive conduct and who were found by the trial judge to have acted in bad faith, namely, Meyer and Lois. Meyer and Lois also personally benefitted from some of the payments. The four cheques referred to in para 9 herein were deposited into a joint account held by Meyer and Lois. It would not be fair for any amount owing to Geoffrey to be paid by 63833 as that would reduce the value of Geoffrey’s equity interest in the corporation. As Meyer is deceased, the obligation will be imposed on the executors of his estate.

Therefore, Lois (in her personal capacity) and Lois and Barbara (in their capacities as executors of the estate of Meyer) shall be jointly and severally liable for payment of this amount. Sale of Parking Lot by 63833 [ 57 ] The appellants raise several issues regarding the relief granted by the trial judge in respect of the sale by 63833 of the parking lot.

As previously noted, the appellants do not appeal the trial judge’s finding that the sale constituted oppressive conduct towards Geoffrey as a shareholder of 63833. [ 58 ] The appellants agree that it is fair that Geoffrey’s Class A common shares in 63833 should be purchased. However, they say that the purchase should be at a price equivalent to the value of the shares in 2006, assuming that 63833 owned the parking lot and its value at the time was $110,000. The appellants argue that this remedy would satisfy Geoffrey’s reasonable expectation that 63833 would sell the parking lot in 2006 at its fair market value.

The appellants submit that the remedy ordered by the trial judge goes beyond what is required to rectify the oppressive conduct. [ 59 ] The appellants also argue that it is unjust that Barbara is personally liable to participate in the purchase of Geoffrey’s Class A common shares in 63833 as she had no

part in the oppressive conduct. She was neither a director nor shareholder of 63833 at the time that the parking lot was sold. [ 60 ] The position of the respondents is that the appellants have not shown any palpable and overriding error in the remedies fashioned by the trial judge. They point to the broad discretion given to the Court to determine the appropriate relief to be granted under the oppression sections of The Corporations Act .

They submit that the trial judge made no error in principle and that his decision is not unjust. [ 61 ] As already noted, the reasonable expectations of the complainant in an oppression case are a fundamental consideration in crafting an appropriate remedy. [ 62 ] Here, there was cogent evidence that Geoffrey’s expectation was that 63833 would sell the parking lot for a price equal to its fair market value.

It is not disputed that Geoffrey’s expectation was reasonable. [ 63 ] In my respectful view, the trial judge erred in principle by granting relief that exceeded what was necessary to rectify the oppressive conduct. [ 64 ] First, the remedy created by the trial judge gives Geoffrey the best of both worlds.

Under the order, the majority shareholders of 63833 are to buy Geoffrey’s shares for the higher of : (1) the value of Geoffrey’s shares in 2006, assuming that the parking lot was included as an asset of 63833 at its then fair market value; and (2) the current value of Geoffrey’s shares, assuming that the parking lot was not sold by 63833 and its current value is determined. [ 65 ] However, Geoffrey’s reasonable expectation was only that 63833 would sell the parking lot in 2006 for its fair market value.

Accordingly, there is no basis to provide Geoffrey the option to have his shares purchased at their current value taking into account the current value of the parking lot. [ 66 ] Second, the remedy ordered by the trial judge includes the unwinding of the sale of the parking lot by requiring title to

be transferred by 5325242 back to 63833. The purpose of unwinding the sale is unclear since, under the trial judge’s order, Geoffrey does not receive a direct interest in the parking lot; his shares are to be purchased at a calculated value; and the obligation to buy Geoffrey’s shares is imposed on the majority shareholders of 63833, not on 63833. In addition, it is reasonable to expect that there will be costs associated with the transfer of title, such as legal fees, land transfer tax and, potentially, income tax consequences.

As the transfer of title to the parking lot has no purpose in rectifying the oppressive conduct, the potential costs would serve only to have a punitive effect on 5325242 and 63833. [ 67 ] Since the trial judge erred in principle in granting relief that exceeded what was necessary to rectify the oppressive conduct, I can make such order as I think fit. [ 68 ] I would order that Geoffrey receive an amount equal to 10 per cent of the fair market value of the parking lot in 2006 (being $110,000) less 10 per cent of any amount that the appellants can show was actually paid to 63833 by 5325242 on account of the purchase price of the parking lot. [ 69 ] For the same reasons as explained previously, it is not fair for this amount to be paid by 63833.

Rather, payment of the amount should be the joint obligation of the individuals who took

part in the oppressive conduct while acting in bad faith and the corporation that benefitted from that conduct. Accordingly, Lois (in her personal capacity), Lois and Barbara (in their capacities as the executors of the estate of Meyer) and 5325242 shall be jointly and severally liable for payment of the amount to Geoffrey. [ 70 ] Finally, I would make an order pursuant to section 234(3) (

l) of The Corporations Act that 63833 is to be liquidated and dissolved. In my view, this order is fit as it fairly addresses several concerns.

It avoids imposing a personal obligation on the majority shareholders to purchase Geoffrey’s shares; it avoids the need to determine a value of Geoffrey’s shares for the purposes of such a purchase; Geoffrey will receive his proportionate share of the remaining equity of 63833 on its liquidation and dissolution; and the appellants intend to dissolve 63833 in any event and, thus, this order does not impose any additional onerous obligation on 63833 or otherwise overly interfere with its affairs. Conclusion [ 71 ] The judgment of the trial judge issued on June 8, 2017, is revised as follows: • Paras 7(a)-(

f) are deleted. • In para 7(g), the words “October 31, 1996 to present” are deleted and replaced with “November 10, 2004 to present”. • In para 7(h), the words “any dividends owed to Geoffrey as a shareholder of 63833 shall be paid to him” are deleted and replaced with “Lois (in her personal capacity) and Lois and Barbara (in their capacities as executors of the estate of Meyer Cosman) are jointly and severally liable to pay to Geoffrey 10 per cent of the amount of any dividends, shareholder loans or advances paid out of 63833, with the exception of any amounts that are part of the dividends paid to Meyer Cosman on the Class C shares in the cumulative total of $340,000.

Any sums payable to Geoffrey shall bear pre-judgment interest from the date of payment and post-judgment interest under the The Court of Queen’s Bench Act , CCSM c C280.” • Paras 7(i)-(k), 7(m)-(

o) are deleted. • A paragraph is to be added stating, “Lois (in her personal capacity), Lois and Barbara (in their capacities as the executors of the estate of Meyer Cosman) and 5325242 shall be jointly and severally liable for payment to Geoffrey of an amount equal to 10 per cent of the fair market value of the parking lot in 2006 (being $110,000) less 10 per cent of any amount actually paid to 63833 by 5325242 on account of the purchase price of the parking lot.

This amount will bear pre-judgment interest from July 10, 2006 to the date of judgment and post-judgment interest to the date of payment under the The Court of Queen’s Bench Act .” • A paragraph is to be added stating, “Pursuant to section 234(3) (

l) of The Corporations Act , 63833 is to be liquidated and dissolved.” [ 72 ] The appellants have been substantially successful on appeal. In addition, the issues on the appeal would have been greatly narrowed if the respondents had earlier made the concessions that they did in argument. The appellants shall have their costs of the appeal. JA I agree: JA

I agree: JA