



COURT OF APPEAL FOR ONTARIO

CITATION: Growthworks Commercialization Fund Ltd., v.
    Growthworks WV Management Ltd., 2018 ONCA 233

DATE: 20180309

DOCKET: C64357 & C64358

Epstein, van Rensburg and Brown JJ.A.

BETWEEN

Growthworks Commercialization Fund Ltd.

Applicant/Respondent by counter-application (Respondent)

and

Growthworks WV Management Ltd.

Respondent/Applicant
    by counter-application (Appellant)

Melvyn Solmon and Cameron Wetmore, for the appellant

Geoff R. Hall and Emily M. MacKinnon, for the respondent

Heard and released orally: March 7, 2018

On appeal from the judgment of Justice Ruth E. Mesbur of
    the Superior Court of Justice, dated August 23, 2017, with reasons reported at 2017
    ONSC 5009.

REASONS FOR DECISON

[1]

This case involves the
    interpretation of the appellants management agreement for the respondents investment
    fund and that part of the funds restated articles of incorporation concerning
    the rights attached to the Class C shares.

[2]

Both parties agree that the applicable standard of review is the
    deferential standard set out in
Sattva Capital Corp. v. Creston Moly Corp
., 2014 SCC 53, [2014] 2 S.C.R. 633
.
This court will not interfere with the application judges decision absent a
    palpable and overriding error or extricable error in law.

[3]

We are of the view that the
    application judge made no such errors in concluding that the payment the
    appellant made to itself was an undeclared performance dividend that was
    unauthorized and illegitimate. The application judges interpretation that
    nothing in the funds articles converts the performance dividend into debt is a
    reasonable one. In addition, we are not persuaded that the application judge
    failed to read the provisions regarding the Class C shares as a whole, or that
    she failed to give effect to any term in s. 4.7, the operable provision.

[4]

The appeal is therefore dismissed.
    Costs are awarded to the respondent on a partial indemnity basis fixed in the
    amount of $20,000 all-inclusive.

Gloria Epstein J.A.

K. van Rensburg J.A.

David Brown J.A.


