O’Connor v Amenity Pharmacy Inc et al, 2022 MBCA 88

Citation: O’Connor v Amenity Pharmacy Inc et al, 2022 MBCA 88 Date: 20221024 Docket: AI21-30-09715 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Jennifer A. Pfuetzner Madam Justice Janice L. leMaistre BETWEEN : BRAD O’CONNoR ) ) (Plaintiff) Respondent ) ) A. P. Loewen - and - ) for the Appellants ) Amenity Pharmacy Inc., AMENITY ) F. J. Trippier and HEALTH CARE LP ) S.

Nelko ) for the Respondent (Defendants) Appellants ) ) Appeal heard: - and - ) September 12, 2022 ) DALBIR SINGH BAINS, CONJURE ) Judgment delivered: CAPITAL INC. and CONJURE ADVISORS ) October 24, 2022 INC. ) ) (Defendants) ) On appeal from O’Connor v Bains et al , 2021 MBQB 255 PFUETZNER JA [ 1 ] The defendants, Amenity Pharmacy Inc. (API) and Amenity Health Care LP (Amenity LP) (together, the Amenity defendants), appeal the motion judge’s dismissal of their motion for

summary judgment. [ 2 ] The Amenity defendants sought to have the plaintiff’s claim against them—in particular, that they were parties to a binding contractual agreement with the plaintiff—summarily dismissed on the basis that it raised no genuine issue requiring a trial. [ 3 ] After exercising a screening function and allowing the motion for

summary judgment to proceed, the motion judge dismissed the motion and directed that the matter proceed to trial, citing several reasons why he declined to order

summary judgment. [ 4 ] For the reasons that follow, I would dismiss the appeal. The motion judge made no material error as to the law or the facts, nor is his decision so clearly wrong as to amount to an injustice. Background [ 5 ] In the fall of 2012, the defendant, Dalbir Singh Bains (Bains), developed a business plan to purchase rural pharmacies and to consolidate or operate them as a pharmacy and wellness business. In January of 2013, Bains incorporated API and another corporation—Conjure Capital Inc.

He was listed in the articles of incorporation of API as the incorporator and first director. [ 6 ] Also in the fall of 2012, Bains contacted the plaintiff, a business broker, about the venture. In March of 2013, Bains proposed that the plaintiff act as an intermediary to approach small pharmacies which might be interested in selling. The plaintiff began working on the project while he and Bains were negotiating the details of their arrangement, which were ultimately set out in a written document on Conjure Capital letterhead and dated May 12, 2013 (the MOU).

The MOU refers to Bains and the plaintiff working together on different business ideas, including “Amenity Health Care.” The MOU states that the plaintiff would “receive [a] 10% equity

interest in the form of Common Voting Shares in Amenity Health Care.” The MOU is signed by the plaintiff and by Bains over thesigning line “Conjure Capital Authorized Signature”. [7] Meanwhile, Bains approached David Asper (Asper) to invest in the pharmacy venture. Their arrangement wasconcluded in July of 2013 with the establishment of a limited partnership, Amenity LP, in which API was the general partner, and Asper(through a corporation) and Bains were equal limited partners.

Rural pharmacies were subsequently acquired by Amenity LP. [8] Bains and the plaintiff had a falling out when Bains could not pay him for his services. The plaintiff becameconcerned that Bains and Asper were setting up a structure for the business venture that did not include him. In June of 2013, Bains toldthe plaintiff to “step back” and their association then ended. The plaintiff’s statement of claim was filed in October of 2014. [9] The plaintiff bases his claim against the Amenity defendants on the terms of the MOU and its numerous references to“Amenity Health Care”.

His claim also raises issues regarding the validity and effect of the MOU which are relevant to the claimsagainst all of the defendants. [10] The motion judge provided written reasons explaining why he declined to order

summary judgment dismissing theclaims against the Amenity defendants. He found that the evidence of Bains, who signed the MOU, was necessary in order to determineif the Amenity defendants were parties to the MOU based on agency law principles. In addition, the motion judge found that certain trustclaims in the pleadings would necessitate the continued involvement of the Amenity defendants in the litigation. He was also concernedabout potentially making findings that would be inconsistent with those of the trial judge who would ultimately hear the case against theremaining defendants. Positions of the Parties [11] The Amenity defendants assert that the motion judge dismissed their

summary judgment motion “for reasons thatamount[ed] to errors in law, with a result that [was] unjust” to them. [12] They allege that the motion judge erred by failing to apply the test applicable to a motion for

summary judgment and,instead, revisiting the screening function; accepting a position put forward by the plaintiff in argument that was not articulated in thestatement of claim and then concluding, on that basis, that the Amenity defendants were seeking a partial

summary judgment; findingthat he needed evidence of Bains’s subjective intention when this was irrelevant to determining whether a contract had been formed;failing to apply the law regarding pre-partnership obligations; and failing to give reasons addressing the substance of the Amenitydefendants’ arguments, with the result that this Court should hear and determine the issues. The Amenity defendants also argue that thedecision is so clearly wrong as to amount to an injustice. [13] The plaintiff argues that the motion judge made no reversible errors in declining to order

summary judgment incircumstances where it would amount to partial

summary judgment and, in particular, since the issues surrounding the MOU could not bebifurcated as between the various defendants. Moreover, the plaintiff asserts that the motion judge did not make any of the legal errorsalleged by the Amenity defendants. Analysis [14] The standard by which this Court is to review the motion judge’s decision not to grant

summary judgment is well-known. Barring a material error as to the law or the facts, or a decision that is so clearly wrong as to amount to an injustice, an appellatecourt will not intervene (see Dakota Ojibway Child and Family Services et al v MBH, 2019 MBCA 91 at para 37). [15] As for the Amenity defendants’ first argument, I am not persuaded that the motion judge erred in declining to grantsummary judgment after having exercised a screening function to allow the motion to proceed.

He had a more extensive record andargument at the hearing of the motion and there is no inconsistency in his decisions as he was exercising different functions. [16] As for the remaining arguments, I am mindful of the need not to delve deeply into the merits of the dispute between theparties as this matter will be proceeding to trial.

However, I will make a few comments in order to explain why I am of the view that themotion judge did not err in directing that the matter proceed to trial. [17] At the end of the day, the fundamental disagreement between the plaintiff and the Amenity defendants is whether theMOU is a binding contract to which either or both of the Amenity defendants are parties. [18] Even without the evidence of Bains, the record that was before the motion judge revealed genuine issues requiring atrial, including whether API was a party to the MOU at the time it was signed.

The determination of this question will likely requireconsideration of more than merely the signature lines, but the entire text of the MOU and the surrounding circumstances, including thefact that Bains was the sole director of API. See, for example, Automobiles Renault v Maritime Import (1961), (NSSC), 31 DLR (2d) 592 (NSSC): “It will be necessary to ascertain from the writing who are the parties to the contract; and for thatpurpose the court looks at the signature and the contents of the writing” (at p 596) (emphasis added).

See also Albert Pearl(Management) Ltd v JDF Builders Ltd (1972), (ON CA), 31 DLR (3d) 690 at 692 (Ont CA). [19] Therefore, in addition to the valid concerns raised by the motion judge with respect to ordering partial

summaryjudgment, a fundamental aspect of the plaintiff’s claim could not, on the record, be dismissed on a

summary basis. Conclusion [20] For all of these reasons, I would dismiss the appeal with costs.

JA I agree: JA I agree: JA