) ) TAT LEE (MICHAEL) KOH Applicant (Appellant) – v. –, 2017 ONSC 3083

CITATION : Koh v. Ellipsiz Communications Ltd., 2017 ONSC 3083 DIVISIONAL COURT FILE NO.: 610/16 DATE: 20170518 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, SPIES & MATHESON JJ. BETWEEN: ) ) TAT LEE (MICHAEL) KOH Applicant (Appellant) – and – ELLIPSIZ COMMUNICATIONS LTD. Respondent (Respondent in appeal) )) )) )) )) ))) G. Moysa & C. Conlin , for the appellant J.

Naster , for the respondent ) ) HEARD at Toronto: May 12, 2017 NORDHEIMER J. : [ 1 ] This is an appeal from the order of Wilton-Siegel J., dated November 25, 2016, that dismissed the appellant’s application for a declaration that a proposed shareholders’ meeting was validly called pursuant to s. 105(4) of the Business Corporations Act , R.S.O. 1990, c. B.16 (“ OBCA ”). [1] [ 2 ] For the purposes of this appeal, I can borrow, with some amendments, the recitation of the background facts from the application judge’s reasons.

Background [ 3 ] The appellant is the largest shareholder of Ellipsiz Communications Ltd. (“ECL”), holding approximately 42% of the outstanding shares of the corporation. [ 4 ] The principal asset of ECL is a wholly-owned Taiwanese operating subsidiary, Ellipsiz Communications Taiwan Ltd. (“ECTW”), which is held by ECL through an intermediate holding company, Hopeful Minds Group Limited (“HMGL”). ECTW operates an engineering services business that provides technical engineering services to major telecommunications companies in Taiwan. [ 5 ] The president of ECTW is Chong Gin (Sam) Tan. Mr.

Tan is also a director and the president of ECL and is the second largest shareholder of ECL holding approximately 26.6% of the outstanding shares. Prior to the reverse takeover referred to below, the appellant and Mr. Tan owned all of the outstanding shares of ECL. [ 6 ] On November 4, 2015, ECL became a publicly traded corporation listed on the TSX Venture Exchange, following completion of a reverse takeover. On June 30, 2016, ECL’s first annual and general meeting of the shareholders as a public corporation

was held (the “AGM”). In connection with the AGM, ECL’s board of directors unanimously approved a management information circular dated May 18, 2016 which included a proposed slate of directors comprised of the appellant, Mr. Tan, Hans Chang, Elliott Jacobson, Grant Sawiak and Mark Korol. In these reasons, I will refer to Messrs. Jacobson, Sawiak and Korol as the “Canadian Directors”. [ 7 ] At the AGM, the slate of directors proposed in the management information circular was elected, including the Canadian Directors.

For reasons that are not revealed by the record, the appellant opposed this election. [ 8 ] Subsequently, meetings of the Board of Directors of ECL were held on July 5, 2016, July 29, 2016, and August 29, 2016. [ 9 ] By letter dated August 22, 2016, from the appellant’s legal counsel, the appellant demanded that the Canadian Directors resign, failing which he would requisition another shareholders’ meeting to remove them. The letter also contained a draft requisition.

When the Canadian Directors failed to resign, the appellant formally submitted a requisition on August 30, 2016 seeking a shareholders’ meeting, pursuant to s. 105(1) of the OBCA . The requisition proposed that a meeting be convened to consider two resolutions - a resolution to remove the Canadian Directors and, if approved, a further resolution to elect three new directors identified in the requisition. [ 10 ] After a meeting on September 8, 2016, and continued on September 19, 2016, the ECL Board advised the appellant, by letter dated September 20, 2016, that it was declining the requisition.

The Board’s stated basis for its decision was that the appellant’s requisition was for the primary purpose of redressing a personal grievance against the corporation or its directors and, as such, it was exercising its authority under s. 105(3) (

c) of the OBCA . The position of the ECL Board was supported by the Canadian Directors and Mr. Tan, with the appellant opposing and the remaining director being absent. [ 11 ] In the rejection letter, the ECL Board listed fifteen factors that it says it considered relevant in coming to its decision. Before the application judge, both parties effectively agreed that those factors could be distilled into five main complaints that the ECL Board contends are “personal grievances” of the appellant. The five main complaints were that the appellant: (

i) wanted to be the chairman of ECL and ECTW; (ii) wanted to be ECL’s negotiator in respect of a potential ECL acquisition of an unrelated company referred to as “M&M”; (iii) wanted to arrange financing for ECL, including but not limited to funding the M&M transaction if it proceeded; (iv) asked ECL’s investor relations firm to promote illegal trading of ECL’s shares – this complaint disappeared once the appellant was told that the actions would be illegal; and (

v) insisted on reimbursement of expenses that he alleges were related to ECL. Statutory Provisions [ 12 ] Section 105(1) of the OBCA provides that a certain number of shareholders may requisition the Board of Directors to call a meeting of the shareholders of a corporation. Specifically, the

section reads: The holders of not less than 5 per cent of the issued shares of a corporation that carry the right to vote at a meeting sought to be held may requisition the directors to call a meeting of shareholders for the purposes stated in the requisition. Subject to three exceptions, if such a requisition is delivered, the Board of Directors must call the meeting: s. 105(3) . One of those exceptions, and the one of interest here, is where “the business of the meeting as stated in the requisition includes matters described in clauses 99 (5)(

b) to (d)”. [ 13 ]

Section 99 of the OBCA deals with the circumstances under which a shareholder is entitled to make a proposal to be discussed at a shareholders’ meeting. Normally, a corporation must forward such a proposal to the shareholders and permit it to be discussed at a shareholders’ meeting. There are, however, some exceptions to that requirement that are set out in s. 99(5). The exception that is important to this appeal is contained in s. 99(5)(

b) that reads: it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal grievance against the corporation or its directors, officers or security holders; The reasons below [ 14 ] The issue before the application judge was whether the appellant’s requisition for the shareholders’ meeting was intended to “enforce a personal claim or redress a personal grievance”. The application judge concluded that it was and, thus, dismissed the appellant’s application to validate or force the calling of the meeting.

The appellant submits that the application judge erred in so concluding. [ 15 ] The application judge made certain findings, or set out certain propositions, with which I agree. Specifically, the application judge held that: (

a) that the requirement in s. 99(5)(

b) that it be “clearly apparent” sets a very high threshold for the application of the exception;

(

b) in deciding on the application of the exception, a Board of Directors is not making a business decision and, accordingly, thebusiness judgment rule does not apply. The necessary standard to be met in applying the exception, both for a Board of Directors, andfor this Court on review, is correctness; (

c) it is necessary to look beyond the language of the proposed resolutions to determine the “primary purpose” for which theyare put forward; (

d) the determination to be made for the purposes of s. 99(5)(

b) must be made on the basis of objective evidence; (

e) the onus of proof, that the circumstances in any particular case fall within the exception in s. 99(5)(b), rests on the Board; (

f) the right of dissident shareholders to requisition a meeting of shareholders is a “fundamental right” in respect of corporategovernance afforded by the OBCA: Paulson & Co. v. Algoma Steel Inc. (2006), (ON SC), 79 O.R. (3d) 191 (S.C.J.). [16] The application judge observed that there was no case law directly on point regarding the

interpretation or determination ofwhat constitutes a “personal grievance”. On this point, the application judge concluded, at para. 29: I consider that a personal grievance involves a dispute that does not entail an issue of corporate policy or operations but rather involves anissue primarily pertaining to the personal interest of the complainant. [17] The application judge then went on to provide some factors that he viewed as being relevant to the determination of whether arequisition related primarily to the personal interest of the shareholder advancing the requisition.

The application judge said, at para. 30: I further conclude that, in assessing whether any particular dispute does not involve a personal grievance, relevant considerations couldinclude not only the nature of the dispute at issue but also: (1) the extent to which such dispute is properly the subject of a shareholdersmeeting or lies within the domain of directors; and (2) the extent to which the complainant acted alone or with the support of other like-minded individuals.

I do not suggest, however, that these considerations are necessarily determinative in any given situation. [18] The appellant takes specific issue with the latter consideration, that is, whether the requisitioning shareholder is acting aloneor with the support of others. The appellant says that this consideration was “created” by the application judge and has no relevance tothe question to be answered. [19] I do not agree. The application judge did not impose this consideration as a determining one, as his reasons make clear. It ismerely one consideration in the overall analysis.

It does seem to me to be difficult to suggest, as the appellant does, that, in determiningwhether or not a personal grievance is being advanced through the requisition and proposal, it is irrelevant whether other shareholdersare in support of the proposal. To the degree that other shareholders are of the same view on an issue, as the shareholder making therequisition, it would make it more difficult, it would seem, to characterize the issue as “personal”. Fresh evidence [20] This is an appropriate juncture to deal with the appellant’s fresh evidence application.

The appellant seeks to put before thiscourt two particular pieces of evidence. One is that shareholders holding 49.3% of the outstanding shares of ECL had voted in favour ofthe appellant’s resolutions that were to be discussed at the shareholders’ meeting, that never happened. Since the appellant holds42.25% of the shares of ECL, this would suggest that some other shareholders supported his position.

The other is that, after theappellant’s application was dismissed, the ECL Board issued stock options equal to 6% of the issues and outstanding shares of ECL tothree persons allied with the Canadian Directors and, thus, has diluted the appellant’s voting support and increased the voting support ofthe Canadian Directors. [21] The test for fresh evidence was established in R. v. Palmer, (SCC), [1980] 1 S.C.R. 759. Four factors are to beconsidered: (

i) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases; (ii) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (iii) The evidence must be credible in the sense that it is reasonably capable of belief, and; (iv) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [22] The Court of Appeal, in Sengmueller v.

Sengmueller (1994), (ON CA), 17 O.R. (3d) 208 (C.A.), reducedthose four factors to three. McKinlay J.A. said, at para. 9: The normal basis on which an appeal court in this jurisdiction will exercise its discretion in favour of admitting fresh evidence is clearand well-established.

It will do so when (1) the tendered evidence is credible, (2) it could not have been obtained, by the exercise ofreasonable diligence, prior to trial, and (3) the evidence, if admitted, will likely be conclusive of an issue in the appeal: [citation omitted] [23] While the language used differs between the two tests, it remains the fact that, in order to be admitted, the fresh evidence mustbe seen as being likely, or reasonably, determinative of an issue in the appeal. [24] While I can see circumstances where the actions of a Board of Directors, after the fact, might cast some light on themotivations of the Board in reaching the decision that it did, I have difficulty in concluding that such evidence would ordinarily bedeterminative of the central issue raised in this appeal.

I certainly do not view the fresh evidence as doing so in this case. As I earliernoted, the application of the exception has to be determined based on objective evidence. The subjective motivations of the parties

would seem, therefore, to be irrelevant to that determination. While I acknowledge that this evidence might be relevant to a remedy, ifthe appeal succeeds, that is a very different matter. [25] I also do not see how the votes that were registered are likely or reasonably to be determinative of the issue. While I haveagreed with the application judge that the support (or lack thereof) of other shareholders is a relevant consideration, it is not by itselfdeterminative of the issue, whether at first instance or on appeal.

It is also not clear to me why the appellant could not have placedevidence of the support of other shareholders, if he had such support, before the application judge. In other words, it would seem by duediligence the appellant could have adduced such evidence before now. [26] Consequently, I would not admit the fresh evidence.

The central issue [27] I return to the central issue and that is whether the application judge was correct in concluding that the respondent hadsatisfied its onus to show that the requisition for the shareholders’ meeting was being made to “enforce a personal claim or redress apersonal grievance”. [28] In answering that question, I return to the requirement that it must be “clearly apparent” that that is the primary purpose of therequisition. It is not, in my view, sufficient to show simply that the shareholder requisitioning the meeting has an element of personalinterest in the matter.

That would cast the scope of the personal grievance exception too broadly. This is particularly so where theshareholder requisitioning the meeting has a significant stake in the corporation. In those circumstances, it will be difficult to separatethe personal interests of the shareholder from his/her business interests. [29] On that latter point, as I have set out above, in defining what was the meaning of a personal grievance, the application judgeemployed two elements.

One was that the matter “does not entail an issue of corporate policy or operations” and the other was that thematter was “primarily pertaining to the personal interest of the complainant”. I must say that I consider the application judge’senunciation of these two elements to be problematic because neither of them mirror the language of the statute. The OBCA refers to the“business and affairs” of the corporation as being the responsibility of the Directors, not corporate policy or operations. Section 99(5)(b)refers to a “personal claim” or a “personal grievance”. It does not refer to a personal interest.

In considering the issues raised in thisappeal, and the proper

interpretation of the statutory exception, it is important to use the words of the statute. In that regard, I wouldrepeat the observation from R. v. Phillips, 2012 ONCA 54 , [2012] O.J. No. 652 (C.A.) where the court said, at para. 7: In passing, we note that it is generally preferable when a court is applying a statutory test to use the language in the legislation.

Insertingwhat are considered to be synonymous words or phrases into an analysis often tends to confuse rather than clarify. [30] In this case, the application judge placed significant emphasis on the fact that the appellant wanted to remain on the Board ofDirectors, and wanted to be actively involved in negotiating a significant commercial matter that the respondent was contemplating (thefirst three complaints that I set out at paragraph 11 above). The application judge found that these motivations were personal and notbusiness related.

Indeed, having reached that conclusion, the application judge went on to find that the reasons that the appellantadvanced for why he viewed these matters as important to the operations of ECL “were never credible” (para. 40). I have difficultyseeing how the application judge came to that conclusion on the record that was before him. [31] The appellant clearly had a difference of opinion as to the proper direction that ECL should be taking. He also had a concernthat the proposed course of action, that the other directors were advancing, could negatively affect the management of ECTW.

At thesame time, it is also clear that the appellant had a habit of personalizing his complaints with the actions of the other directors or, at least,expressing his concerns in personal terms. For example, the appellant had a tendency to characterize his concerns as demonstrating alack of respect for him and, thus, make the dispute seem more a matter of personalities than business affairs. [32] However, on a fair reading of the record, it is apparent that the appellant had what, at least he believed, were significantdifferences of opinion on business steps being taken.

The appellant objected to the fact that the respondent was contemplating enteringinto a significant transaction with a person who would not deal with the appellant. The appellant raised concerns about the wisdom ofthe respondent doing business with a person who would not meet, or otherwise deal, with the single largest shareholder of therespondent. This would seem to be a legitimate concern to raise, both in terms of the ongoing successful implementation of anytransaction as well as the possible need to obtain shareholder approval of the transaction.

Directors who push ahead with a transaction,with full knowledge that significant shareholders do not approve of the transaction, risk wasting the time and money of the respondent inpursuit of a deal that is doomed to failure. [33] The appellant also expressed concerns that steps taken by the other directors to reorganize the Board of Directors of ECTWwould negatively impact the management of ECTW including causing the management to resign. The application judge dismissed thatconcern on the basis that, after the reorganization of the Board, no resignations occurred.

With respect, the fact that no members ofmanagement had resigned as of the hearing, does not render the concern expressed an invalid one. It could be a concern that has not, asyet, materialized, especially given the actions being taken by the appellant to challenge the decision, or it may be a reality that has had animpact on the management of the company, short of persons quitting. I note that in dismissing the appellant’s concern, in this regard, theapplication judge relied on the fact that Mr.

Tan, who the application judge found was the most knowledgeable person regarding bothECL and the appellant, disagreed with the appellant. With respect, that fact only shows that there was a serious disagreement among thedirectors. It does not render the appellant’s concern invalid or “never credible”, and it also does not render the appellant’s concern apersonal matter and not one related to the business and affairs of the respondent. [34] It is somewhat noteworthy, on that latter point, that the appellant did not seek to remove Mr. Tan as a director of ECL, as hesought to do with the Canadian Directors.

Contrary to the application judge’s conclusion, that fact would seem to demonstrate that the

appellant’s motivation was not a personal vendetta against persons who disagreed with him but, rather, had to do with what he thoughtshould be the direction of the company. [35] In the end result, the application judge concluded, at para. 47: In a larger sense, the acrimony between the applicant and the Canadian Directors reflects a conflict between the applicant’s sense of hisentitlement as the largest shareholder of ECL and the Canadian Directors’ position that these matters are properly addressed by theBoard and that, as a director, the applicant should act in the best interests of ECL.

The important point is that the evidence describedabove regarding the five matters in dispute demonstrates that the applicant’s position reflected his own personal interests rather than anylarger sense of the best interests of ECL. In other words, the dispute does not reflect a significant difference between the partiesregarding corporate policy or corporate operations. [36] I have two significant concerns regarding that conclusion. First, is that I do not see how the recitation of the five matters indispute demonstrates that personal interests, as opposed to business interests, are solely involved.

Admittedly, the fifth complaint wouldappear to be personal but that was not the genesis for this dispute. It was clearly the first three complaints that were giving rise to theimpasse. Further, the application judge’s conclusion highlights the concern regarding the application judge’s use of the term “personalinterest” rather than “personal grievance”. A personal interest does not trigger the exception in s. 99(5)(b). Only a personal grievancedoes.

It also highlights the point I made earlier, that is, that it seems difficult to separate out personal interests from business interestswhen one is dealing with an individual who owns almost 50% of the corporation that is involved. It would seem self-evident thatadvancing the interests of the corporation would undoubtedly advance the personal interests of the appellant and vice versa.

In addition,given the nature of the disputes, especially who should be in a leadership role in the company; who should negotiate a major transaction;and how financing for the corporation should be arranged; it is difficult to see how the conclusion, that these were primarily personalissues, and not differences regarding the business and affairs of the respondent, was arrived at. [37] It seems to me that one of the indicators of a person grievance is that the subject matter of that grievance bears no real ordirect relationship, nor is it otherwise integral, to the business and affairs of the company, or, for that matter, to the griever’s role as ashareholder.

In other words, while the grievance may bear some connection to the business and affairs of the company, that is not at theheart of the grievance. Some examples from the case law may assist. For example, in Watkin v. Open Window Bakery Ltd., (ON SC), [1996] O.J. No. 894 (Gen. Div.), it was held that questions related to a wrongful dismissal action (even though itinvolved the Managing Director of the company) were in the nature of personal grievances. In Cappuccitti v. Bank of Montreal, [1989]O.J.

No. 2153 (H.C.J.), it was held that questions designed to provide leverage in separate litigation involving the company were in thenature of personal grievances. The same conclusion was reached in National Bank of Canada v. Weir, [2006] Q.J. No. 415 (Sup. Ct.). [38] On the other hand, the mere fact of an element of personal interest does not satisfy the exception. For example, in Eckberg v.MTW Solutions Online Inc., [2000] O.J.

No. 3183 (S.C.J.), the fact that the shareholders wanted to replace the directors so that adividend would be declared did not constitute a personal grievance, even though the shareholders had a personal interest in receiving thedividend. It is also not a personal grievance for shareholders holding a majority of the shares to seek to elect a Board of Directors thatrepresented their views: Jameson Investment Corp. v. Jameson Bank, [2009] O.J. No. 5291 (S.C.J.). [39] These latter two cases demonstrate the demarcation that I am attempting to explain.

They both involved issues that weredirectly related to the business and affairs of the company and directly affected the grievers’ position as shareholders. The issues in theother three cases, while linked to the business and affairs of the company, were not at the root of those complaints. Admittedly, thedistinction between the two is not an easy one to capture in words. [40] In this case, the three main complaints are directly related to the business and affairs of the respondent. They also directlyaffected the appellant’s position as a shareholder.

The complaints involve who should be directors, who should occupy corporatepositions, and whether a significant transaction should be entered into. [41] Second, and perhaps more importantly, it appears that the application judge, in the course of his reasons, reversed the onus.

Rather than focussing on how the respondent had overcome the high threshold that rested on it to establish that the personal grievanceexception applied, it seems that the application judge started from the premise that the appellant’s concerns were related to “theapplicant’s sense of his entitlement as the largest shareholder of ECL” and then looked to the appellant to disprove that conclusion. Indeed, on more than one occasion in the course of his reasons, the application judge refers to the fact that the appellant chose not totender any evidence on the application.

However, it was not the appellant’s task to establish that he was not pursuing a personalgrievance. It was the respondent’s task to show that he was. In other words, having set out the proper framework for the determinationof the issue, it does not appear that the application judge actually applied that framework in reaching his conclusion. [42] In that regard, I contrast the approach taken by the application judge here with the approach taken by Dunphy J. inSaskatchewan WTF Taekwondo Assn. Inc. v. Taekwondo Canada, [2015] O.J. No. 2296 (S.C.J.).

In doing so, I recognize that there arefactual differences between the two cases, but the general principles to be applied are the same. In resolving the same legal issue in thatcase, Dunphy J. concentrated on the actions of the directors of the company that were being challenged. He noted, for example, thatwhere an effort is made to remove a significant number of directors, and those directors determine that a meeting should not be held forthat purpose, relying on the statutory exception, the motivations of those directors should be examined.

Dunphy J. said, at para. 15: Where the meeting is called for the purpose, inter alia, of removing a significant number of the members of the board of directorsassessing the matter, the court will be quite naturally attentive to see whether the members of the board have possibly allowed theirpersonal views or their interest in maintaining their incumbency influence their reaction to the requisition. [43] While the application judge spent considerable effort in his reasons to examine the personal motivations of the appellant, it isnot evident that he subjected the possible motivations of the Canadian Directors to that same level of scrutiny.

By way of example, atone point, the application judge found (at para. 33): I note that there is no evidence before the Court that the Board had functioned in a dysfunctional manner nor that any directors hadengaged in clandestine activity.

In fact, the cross-examination of one of the directors had established that there was evident dysfunction among the directors and, further, that the Canadian Directors had engaged in activity that could be fairly described as clandestine, including purposely not telling the appellant of their intention to remove him as Chairman, and as a director, of ECTW. [ 44 ] The other point from Saskatchewan is the recognition that shareholders have a right to requisition a meeting.

As Dunphy J. said, at para. 20: The right to call a special meeting is a substantive one and is not lightly to be interfered with. [ 45 ] That point, coupled with the high threshold that must be met for the exception to apply, and that the onus rests on the Board of Directors to satisfy the court that the exception applies, all suggest quite strongly that any doubt regarding the application of the exception should be resolved in favour of the meeting being held.

On that point, it must be remembered that all that is being determined, through this application, is whether a meeting of the shareholders should be held. No determination as to the proper outcome of the dispute is being made. That is a matter for the shareholders to decide, if a meeting is held. [ 46 ] I believe that that point bears repeating for the purpose of emphasis.

In concluding that the meeting ought to have been held, this court is not saying that the issues raised by the appellant are legitimate ones, nor are we making any determination as to how those issues ought to be decided by the shareholders. [ 47 ] I would also make it clear that the fact that the appellant is a significant shareholder in the respondent does not mean that any issue he chooses to raise must, as a consequence, be an issue involving the business and affairs of the company.

By way of example only, any issue that the appellant had regarding reimbursement of expenses would not escape the label of a personal grievance just because the appellant is a significant shareholder. Each situation will turn on its own facts.

That said, the fact remains that the threshold for such a finding is a high one and the right to requisition a meeting is not one to be overruled easily. [ 48 ] In my view, the respondent has failed to establish that it “clearly appears” that the “primary purpose” of the appellant’s requisition was to enforce a personal claim or redress a personal grievance against the corporation or its directors, officers or security holders.

On a fair review of the record, it appears that the appellant and the Canadian Directors have a significant difference of opinion as to the course that the company should take, and how it should be managed. It seems to me that the shareholders ought to be permitted to decide those issues. [ 49 ] The appeal is allowed. The order of the application judge is set aside. The respondent shall proceed to call a shareholders meeting, at the earliest convenient date, to consider the two proposals put forward in the appellant’s requisition. The record date for the meeting shall be October 24, 2016.

I assume that counsel can work out any other details that are required for the holding of the meeting but, if any difficulties arise in that respect, counsel can address those issues before a judge of the Commercial List. [ 50 ] Before concluding, I should address a concern about the record date. The respondent pointed out that some months have now passed since the original meeting was to be held. The respondent raised a concern about possible changes in the ownership of shares of the respondent since that time and that, if the record date was October 24, 2016, subsequent purchasers of shares might be prejudiced.

In response to that concern, I will say three things. First, it is integral to a decision to order a meeting to be held, that was improperly not held, that the meeting ought to be held with the shareholders as they existed at that time. To conclude otherwise would seem to defeat the rationale for ordering the meeting. Second, the court is given broad powers in ordering a meeting under s. 106 of the OBCA . Third, we were advised that the application judge’s decision was publicized through a press release, as was the appellant’s stated intention to appeal the decision.

Consequently, any person, who may have subsequently purchased shares in the respondent, did so with disclosure of the controversy. [ 51 ] The appellant is entitled to his costs of this appeal fixed in the agreed amount of $17,000 inclusive of disbursements and HST payable by the respondent. NORDHEIMER J. I agree SPIES J. I agree MATHESON J.

Date of Release: May 18, 2017 CITATION : Koh v. Ellipsiz Communications Ltd., 2017 ONSC 3083 DIVISIONAL COURT FILE NO.: 610/16 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT NORDHEIMER, SPIES & MATHESON JJ. BETWEEN: TAT LEE (MICHAEL) KOH Applicant(Appellant) – and – ELLIPSIZ COMMUNICATIONS LTD. Respondent REASONS FOR JUDGMENT NORDHEIMER J. Date of Release: