



COURT OF APPEAL FOR ONTARIO

CITATION: Antunes v. Limen Structures Ltd.,
    2016 ONCA 509

DATE: 20160624

DOCKET: C60563

MacPherson, Sharpe and Miller JJ.A.

BETWEEN

John Antunes

Plaintiff (Respondent)

and

Limen Structures Ltd.

Defendant (Appellant)

Arnold Schwisberg, for the appellant

J. Van Wiechen, for the respondent

Heard: June 21, 2016

On appeal from the judgment of Justice Carole J. Brown of
    the Superior Court of Justice, dated June 2, 2015.

ENDORSEMENT

[1]

The appellant Limen Structures Ltd. appeals the judgment of C. Brown J.
    of the Superior Court of Justice dated June 2, 2015. In the judgment, the trial
    judge awarded the respondent $105,228.54 in damages for wrongful dismissal and
    $500,000 in damages for the non-delivery of shares in the appellant pursuant to
    the employment contract. The appellant appeals the second component of this
    judgment.

[2]

The appellant contends that the $500,000 in damages was both a palpable
    and overriding error of fact and an error of law. Central to both submissions
    is the assertion that, at trial, there was no evidence of the liquidity of the
    shares of the appellant that could possibly ground the $500,000 amount.

[3]

We do not accept the appellants submissions. There are two major
    defects in them.

[4]

First, the issue as to the liquidity of the shares is a new issue not
    raised in the evidence or argument at trial.

[5]

Second, the appellant called no evidence at trial.

[6]

The Employment Contract explicitly dealt with the shares issue:

3.       Company Share: John Antunes shall be issued       5%
    of the Company shares at the start of the      employment contract.

[7]

The respondent testified that Antonio Lima, the appellants President
    and the signatory of the Employment Contract, told him that the appellant was
    worth $10,000,000. This would make the 5% share component of the Employment
    Contract worth $500,000.

[8]

At trial, the appellant called no evidence on this or any other issue.
    The trial judge reasoned:

[70]    No one was called from the defendant company to
    testify. Critically, Mr. Lima, with whom Mr. Antunes had negotiated his
    employment and the employment contract, and who would have direct knowledge of
    the negotiations and discussions, was not called. Further, while undertakings
    were requested at examinations for discovery as regards Mr. Limas knowledge
    concerning the negotiations and specific aspects thereof in issue in this
    action, no answers were given to those undertakings/advisements. Nor was there
    any documentary evidence as regards negotiations concerning the terms of his
    employment, or to refute the evidence of the plaintiff. Mr. Lima would have
    been a key material witness in this case, given his involvement in the negotiation
    of the employment agreement. The evidence indicates that he was the only person
    from the defendant corporation who negotiated the employment contract with the plaintiff
    or spoke to him prior to his hiring. The only reason given to the Court for his
    not being called was that he was president of the company. I do not accept this
    as a reason for his not being called as a witness. Only the transcript of the
    examination of Mr. Micciola, Controller-Finance & Operations, was in
    evidence.

[71]    I draw an adverse inference against the defendant
    corporation regarding the failure to produce Mr. Lima as a witness. He was a
    material witness with direct and relevant knowledge of the negotiations
    regarding the employment agreement.



[72]    In all of the circumstances, and based on the evidence
    before me, I accept the evidence of Mr. Antunes as regards the representations
    made to him. I further accept his evidence that he relied on these
    representations in accepting the offer of employment. While the defendant
    argues that such reliance is not reasonable, as the plaintiff did not request
    supporting documentation as to the financial circumstances of the company and
    knew or should have known that the company was not in such good financial
    circumstances, I do not find the plaintiffs reliance to be unreasonable. Mr.
    Antunes testified that he knew or believed, given his familial relationship
    with Mr. Lima, that Mr. Lima was a successful businessman with a successful
    company. Further, and for the same reason, he trusted Mr. Limas
    representations.

[9]

We agree with this reasoning.

[10]

The
    appeal is dismissed. The respondent is entitled to his costs of the appeal and
    motion fixed at $11,000, inclusive of disbursements and HST.

J.C.
    MacPherson J.A.

Robert
    J. Sharpe J.A.

B.W.
    Miller J.A.


