



COURT OF APPEAL FOR ONTARIO

CITATION: Global Fund Holdings, Corp. v. Hines, 2019 ONCA 621

DATE: 20190722

DOCKET: C66116

Hoy A.C.J.O., Trotter
    and Jamal JJ.A.

BETWEEN

Global Fund Holdings, Corp.

Plaintiff

(Respondent)

and

Kenneth Hines

Defendant

(Appellant)

Evan Moore, for the appellant

Lisa Corne, for the respondent

Heard: July 17, 2019

On appeal from the order of Justice Peter J. Cavanagh of
    the Superior Court of Justice, dated October 1, 2018.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, we dismissed the appeal with reasons
    to follow. These are our reasons.

[2]

This appeal arises from an order enforcing a Settlement Agreement in the
    amount of USD $200,000.

[3]

In the underlying action, Global Fund Holdings, Corp. (Global) sued Kenneth
    Hines (Hines), alleging that, on the basis of Hines fraud and false
    pretences, Global advanced USD $500,000 to him in order to purchase shares in a
    Panamanian company. It was an alleged sham.

[4]

After the parties commenced settlement negotiations, Hines learned that
    Global had caused criminal charges to be brought against him in Panama. The
    prosecutor in Panama sent a detention order (equivalent to an arrest warrant in
    Canada) to the National Police of Panama and the National Migration Service of
    Panama. As a result of these charges, the following condition was included in
    the Settlement Agreement that was ultimately entered into:

10.     Upon receipt of a
written confirmation from the prosecutor
    in Panama, which confirms that the desist of the pretension of the punitive
    claim has been duly filed at the Panama Penalty Court of Law and that all
    charges

against Hines
, LS2027, or the Board of Directors of LS2027
    for any matters arising from the dealings with, or complaints made by, Global,
    Inspirata, Trade Finance Solutions, or Michael Weingarten, and any of their
    related companies, subsidiaries, employees, officers, directors, assigns, or
    representatives, as the case may be,
are dismissed or withdrawn
, Hines
    hereby irrevocably instructs PDC to pay the sum of USD $200,000 to Global.
    [Emphasis added.]

PDC is the acronym for the Ontario law firm of
    Prouse, Dash & Crouch, LLP.

[5]

Counsel for Global provided documentation to Hines counsel from the Panama
    Court to prove that the criminal action against Hines was declared as
    extinguished. Relying on the precise wording of paragraph 10, Hines insisted
    on written confirmation from the prosecutor in Panama. On July 30, 2018,
    counsel for Global sent an email to Hines counsel attaching written
    confirmation from the Prosecutor of Panama that no criminal charges were being proceeded
    with against Hines. Global demanded payment of the USD $200,000.

[6]

Hines resisted again, this time because of the existence of the
    outstanding detention order/arrest warrant. According to evidence filed on the
    motion, the declaration of the Panama Court had not been sent to the National
    Police of Panama or the National Migration Service of Panama. Consequently,
    Hines was at risk of arrest if he entered Panama. On this basis, he claimed
    that the condition in paragraph 10 of the Settlement Agreement had not been
    satisfied.

[7]

The motion judge approached the interpretation of paragraph 10 of the
    Settlement Agreement with the goal of discerning the objective intentions of
    the parties: see
Sattva Capital Corp. v. Creston Moly Corp.
, 2014 SCC
    53, [2014] 2 S.C.R. 633, at paras. 50-55. He concluded that the condition was
    satisfied when the prosecutor in Panama provided written confirmation that the
    charges against Hines were at an end. The motion judge said, in part:

There is no language in paragraph 10 that provides for an
    additional condition that Global must take steps to ensure that the Panama Courts
    withdrawal of charges is communicated by it to Panamas National Police or
    National Immigration Service.

When I consider the surrounding circumstances that existed at
    the time of the execution of the Settlement Agreement, I am unable to conclude
    that there is any evidence of such circumstances that should cause me to
    deviate from the text of paragraph 10 of the Settlement Agreement and introduce
    an additional condition that would require Global to take steps to ensure that
    any arrest warrant that was issued in relation to the charges had been
    withdrawn.

[8]

Based on this interpretation, the motion judge made an order enforcing
    the Settlement Agreement. Moreover, he declined to exercise any residual
    discretion not to enforce the Settlement Agreement because of the outstanding detention
    order/arrest warrant.

[9]

The appellant submits that the motion judge misapprehended the evidence
    thereby giving rise to a palpable and overriding error in his interpretation of
    the Settlement Agreement. It is his position that based on his evidence filed
    on the motion, he always contemplated, and it was important to him that, in
    addition to the charges being discontinued against him, there be no detention
    order/arrest warrant outstanding. He asserted that he would never have signed
    the Settlement Agreement had he been aware that this was not the case.

[10]

When
    Hines entered into the Settlement Agreement, he was represented by counsel,
    both in Canada and Panama. The existence of the detention order/arrest warrant
    was known at the time. He asserts that it was common ground between the parties
    that the criminal charges encompassed the detention order/arrest warrant. The
    motion judge rejected this interpretation, noting that there is no reference to
    this document in the Settlement Agreement. It may have been open to Hines to
    insist on a version of paragraph 10 that addressed the detention order/arrest
    warrant. He did not. Moreover, Hines grievance stems from what appears to be
    an administrative glitch in terms of one Panamanian agency communicating
    information to other agencies. In all of the circumstances, we are of the view
    that the motion judge committed no error in interpreting the Settlement
    Agreement in the manner that he did. His decision is entitled to deference on
    appeal:
Sattva
, at para. 52.

[11]

This
    ground of appeal is dismissed.

[12]

The
    appellant brings a motion to adduce fresh evidence. Some of this evidence was
    available at the time that the motion judge made his decision. It could have
    been obtained with due diligence. For this reason, it is inadmissible: see
Palmer
    v. The Queen
, [1980] 1 S.C.R. 759, at p. 775 and
Sengmueller v.
    Sengmueller
(1994), 17 O.R. (3d) 208 (C.A.), at pp. 210-211.



[13]

The
    rest of the purported fresh evidence consists of letters from the Panama Court
    to the National Police of Panama or the National Migration Service of Panama informing
    those agencies of the termination of the proceedings against Hines that were
    sent after the motion judge made his decision. In this sense, the evidence
    might be considered fresh because it did not exist at the time of the motion.
    However, this aspect of the fresh evidence application must fail because the
    evidence does not bear upon a decisive or potentially decisive issue on the
    motion and cannot, when taken with the other evidence adduced [on the motion],
    be expected to have affected the result:
Palmer
, at p. 775. In short,
    whether the agencies had already been informed that the prosecution of Hines
    was at an end was irrelevant to the motion judges interpretation of the
    Settlement Agreement.

[14]

The
    application to adduce fresh evidence is dismissed.

[15]

The
    appeal is dismissed. The respondent is entitled to its costs in the amount of $13,000,
    inclusive of taxes and disbursements.

Alexandra Hoy A.C.J.O.

G.T.
    Trotter J.A.

M.
    Jamal J.A.


