



COURT OF APPEAL FOR ONTARIO

CITATION: D'Addario v. EnGlobe Corp., 2014 ONCA 376

DATE: 20140512

DOCKET: C55442

Laskin, Rouleau and Lauwers JJ.A.

BETWEEN

Frank DAddario, 1301965 Ontario Inc., and
    DAddario Family Trust

Appellants (Plaintiffs)

and

EnGlobe Corp., Tony Busseri and Roberto Sansone

Respondents (Defendants)

Peter R. Jervis, for the appellants

Peter F.C. Howard and Samaneh Hosseini, for EnGlobe
    Corp.

Alistair Crawley and Kate McGrann, for Tony Busseri

Heard and released orally: April 29, 2014

On appeal from the judgment of Justice David M. Brown of
    the Superior Court of Justice, dated March 30, 2012, with reasons reported at
    2012 ONSC 1918.

ENDORSEMENT

[1]

The appellants argue that the trial judge erred: in failing to find that
    the respondents acted oppressively against them as minority shareholders of
    EnGlobe; in his legal analysis of cause of action estoppel; in his conclusion
    that the oppression remedy was statute-barred; and in holding that the
    appellants could not proceed with a claim in conspiracy.

[2]

Mr. Sansone sued the appellants. In that lawsuit, Mr. Sansone obtained
    an injunction preventing the appellants from dealing freely with their shares
    from 2005 to 2009. The appellants argue that this freezing of their shares gave
    rise to damages because they could neither vote nor sell their shares during
    this period.

[3]

Central to the appellants argument is the allegation that the
    respondents promoted and supported Mr. Sansones lawsuit, including supplying
    the appellants share ownership and trading information to Mr. Sansone in
    contravention of s. 21 of the
Canada Business Corporations Act
, R.S.C. 1985, c. C.44
(
CBCA
).
    This conduct, the appellants say, is unlawful and constitutes oppression as
    defined in the
CBCA
and conspiracy at common law. We do not give
    effect to these submissions.

[4]

The trial judge found that the respondents conduct, while it may have
    been inappropriate in certain regards, did not, taking all of the circumstances
    into account, meet the test for oppressive conduct. He correctly instructed
    himself on the law and his findings of fact made in support of his conclusion
    are well founded in the record. We see no basis to interfere.

[5]

With respect to the conspiracy claim, the trial judge found as a fact
    that the respondents did not intend to cause injury to the appellants; as a
    result, the claim was simply not made out. Again, we see no basis to interfere.

[6]

In any event, the trial judge found that the appellants did not prove
    that they suffered any damages as a result of the respondents actions. The
    trial judge considered the share ownership and trading information given by the
    respondents to Mr. Sansone, and that doing so appeared to breach s. 21 of the
CBCA
.
    He found that the breach was innocent and the information could, in any event,
    have been otherwise obtained.

[7]

More importantly, the trial judge found that the release of the share
    information to Mr. Sansone did not cause any damages to the appellants. This is
    because the appellants consented to the injunction order freezing their dealing
    with the shares in the course of their litigation with Mr. Sansone.

[8]

In reaching the conclusion that no damages were suffered, the trial
    judge rejected the appellants submission that, because of the respondents
    conduct, they had no choice but to consent to that injunction. The trial judge
    found that the injunction was the product of negotiations between counsel for
    the appellants and Mr. Sansone and of the informed consent of the appellants.
    He found that it did not therefore result from any conduct of the respondents.
    We agree.

[9]

In light of these conclusions, we need not deal with the other issues
    raised by the appellants, other than their appeal of costs. The appellants
    argue that the respondents misconduct should have led the trial judge to
    refuse an award of costs to the respondents. The trial judge carefully
    considered the appellants submissions and determined that costs should follow
    the result. He awarded partial indemnity costs but he significantly reduced the
    award from the amount claimed by the respondents. We see no basis to interfere.
    Costs awards are entitled to considerable deference and the award in this case
    was appropriate.

[10]

For
    these reasons the appeal is dismissed.

[11]

Each
    of the respondents was separately represented on the appeal although only
    EnGlobe filed a factum. EnGlobe seeks approximately $37,000 in costs and Mr.
    Busseri seeks approximately $11,500. The appellants submit that, because of
    their conduct the respondents should be denied costs. In our view, the
    respondents were successful and are entitled to costs. However, we consider the
    amount sought by EnGlobe to be too high in the circumstances. In addition, we
    do not consider that any award of costs should be made to Mr. Busseri. His
    interests were virtually the same as those of EnGlobe and he did not file a factum.
    As a result, we award costs of the appeal to EnGlobe fixed at $17,500 inclusive
    of taxes and disbursements.

John
    Laskin J.A.

Paul
    Rouleau J.A.

P.
    Lauwers J.A.


