



COURT OF APPEAL FOR ONTARIO

CITATION: Winter v. Royal Trust Company, 2014 ONCA 473

DATE: 20140616

DOCKET: C57430

Laskin, Rouleau and Epstein JJ.A.

BETWEEN

Kerry J.D. Winter,
    Jeffrey A. Barkin, Paul T. Barkin and Julia Winter, personal representative of
    Dana C. Winter, deceased

Plaintiffs (Appellants)

and

The Royal Trust Company and Royal Trust
    Corporation of Canada

Defendants (Respondents)

Gregory M. Sidlofsky, for the appellant Jeffrey Barkin

Justin R. Fogarty and Pavle Masic, for the appellants
    Kerry J.D. Winter, Paul T. Barkin and Julia Winter

Laura K. Fric and Gillian S.G. Scott, for the respondents

Heard: June 6, 2014

On appeal from the order of Justice Paul M. Perell of the
    Superior Court of Justice, dated June 26, 2013.

ENDORSEMENT

[1]

The appellants argue three grounds of appeal:

(1)

the motion judge erred in his
    interpretation of the option agreement;

(2)

the motion judge erred in holding
    that Royal Trust could not be liable for breach of fiduciary duty or negligence
    on the grounds that; and

(a)

Royal Trust failed to draft or negotiate a better option agreement, and

(b)

by its delay in producing the documents pertaining to the option
    agreement, Royal Trust prevented the appellants from proving their claims.

(3)

it was neither fair nor just to
    decide this case without a trial.

[2]

We did not call on the respondents. We do not agree with any of the
    three grounds of appeal advanced by the appellants. The motion judge gave thorough
    reasons for granting summary judgment dismissing the appellants claims. We
    agree with his reasons and his disposition of the motion.

[3]

On the first ground of appeal, the appellants contend that the
    definition of purchased business is broad enough to encompass Apotex. We do
    not accept that contention. As the motion judge found, the definition of
    purchased business in the asset sale agreement  a definition that is
    incorporated into the option agreement  is unambiguous. It does not apply to
    Apotex, a company Sherman started two years after he sold all of Empires
    business to ICN. The motion judge correctly found that after that sale to ICN,
    the option agreement, by its terms, was null and void.

[4]

On the second ground of appeal, the appellants accept that Royal Trust
    acted prudently in the sale of the assets of the estate, and indeed sold the
    assets to the highest bidder, who was Sherman. They submit, however, that Royal
    Trust was negligent or in breach of its fiduciary duties in not obtaining
    better option terms for the children. That submission is at odds with the
    evidence that the motion judge accepted, as he was entitled to do, that Sherman
    would not agree to different terms. The key findings of the motion judge, at
    paras. 123-24 of his reasons, are supported by the evidence and not tainted by
    palpable and overriding error.

[5]

Further, nothing in the record before us supports the suggestion that
    the appellants were prejudiced by the delay in producing the documents pertaining
    to the option agreement. The evidence before the motion judge established that
    Royal Trust acted prudently in the sale of the assets to Sherman. The option
    agreement entered into as part of the sale is unambiguous and the conditions
    for its performance had lapsed upon the sale to ICN in 1972. There is simply no
    evidence to support the submission that Royal Trusts delay in producing the
    documents somehow prevented the appellants from pursuing their claims or that
    the delay otherwise prejudiced them.

[6]

On the third ground of appeal, this was an entirely appropriate case for
    summary judgment. As the Supreme Court of Canada said in
Hryniak v. Mauldin
,
    2014 SCC 7, at para. 60, even if some of the claims against some of the
    parties will proceed to trial, in appropriate circumstances the resolution of
    an important claim against a key party could significantly advance access to
    justice, and be the most proportionate, timely and cost effective approach.
    That is the case with the claims at issue here.

[7]

We agree with Royal Trust that the resolution of the royalty claims,
    which the motion judge left for trial, will not lead to inconsistent results. The
    resolution of those claims does not depend on the definition of purchased
    business or on the interpretation of the option agreement.

[8]

The appeal is dismissed with costs fixed in the amount of $20,000
    inclusive of disbursements and applicable taxes.

John Laskin J.A.

Paul Rouleau J.A.

Gloria Epstein J.A.


