



COURT OF APPEAL FOR ONTARIO

CITATION:

Hawley v. Pennington, 2012
    ONCA 595

DATE: 20120911

DOCKET: C55314

Cronk, Epstein and Hoy JJ.A.

BETWEEN

James B. Hawley and The Aged Gingko Trust

Plaintiffs (Appellants)

and

John K.
    Pennington and The John
    K. Pennington Family Trust No. 1

Defendants (Respondents)

Ronald S. Sleightholm, for the appellants

Craig R. Colraine, for the respondents

Heard and released orally:  September 5, 2012

On appeal from the judgment of Justice C. William
    Hourigan of the Superior Court of Justice, dated March 12, 2012.

ENDORSEMENT

[1]

The appellants appeal from the judgment of Hourigan J. of the Superior
    Court of Justice dated March 12, 2012, granting summary judgment in favour of
    the respondents concerning the appellants oppression claim regarding the
    respondents alleged conduct in relation to and management of Kananaskis Alpine
    Resort Inc. (KARI).

[2]

The background facts are detailed in the motion judges reasons and
    need not be repeated here.

[3]

The motion judge held that this was an appropriate case for summary
    judgment as the record afforded him the requisite full appreciation of the
    evidence and issues required to make dispositive findings by way of summary
    judgment, without the necessity of a trial, in accordance with this courts
    recent decision in
Combined Air Mechanical Services v. Flesch
, 2011
    ONCA 764, 108 O.R. (3d) 1.  In our view, the record fully supports this
    conclusion.

[4]

As the motion judge held, the appellants essential complaint in this
    case is that the respondent Pennington declined to appoint the appellant Hawley
    as a co-director of KARI when Hawley sought to exercise his option to
    re-acquire his former shareholdings in KARI.  After reviewing the statutory
    provisions applicable to KARI, an Alberta corporation, and the evidence pertaining
    to the parties dealings concerning their option agreements, the motion judge
    concluded that Hawley was not entitled to the requested directorship by reason
    of statutory, contract or tort law.

[5]

We see no error in this conclusion.  Indeed, we understood the
    appellants counsel to candidly acknowledge as much during his submissions
    before this court.  The record reveals no basis for Hawleys complaint that he
    was wrongly denied a directorship in KARI.  Accordingly, Penningtons refusal
    to appoint Hawley as a director of KARI cannot support the oppression claim
    sought to be advanced in this action.

[6]

In his factum, Hawley further submits that his exclusion from a
    directorship of KARI while his guarantee of KARIs indebtedness was sought by
    KARIs primary lender/mortgagee and Penningtons negotiations with that
    mortgagee, allegedly to the appellants detriment, ground an oppression claim.

[7]

We disagree.  Hawley ultimately did not provide the requested
    guarantee.  As the motion judge held, the appellants advance only bald
    allegations of oppressive conduct by the respondents.  Hawley was not legally
    entitled to insist on his appointment as a director of KARI.  Absent that
    entitlement and any wrongful denial of the appointment, nothing in the respondents
    dealings with KARIs lender/mortgagee, to the extent identified by the
    appellants, anchors an oppression claim.

[8]

We therefore agree with the motion judge that the oppression claim
    advanced by the appellants is devoid of merit.  The appeal is dismissed with
    costs to the respondents in the amount of $8,500, inclusive of disbursements
    and all applicable taxes.

E.A. Cronk J.A.

G.J. Epstein J.A.

Alexandra Hoy J.A.


