



COURT OF APPEAL FOR ONTARIO

CITATION: Ustymenko v. Sadochok Centre Inc. (Sadochok
    Preschool Centre), 2020 ONCA 123

DATE: 20200212

DOCKET: C67046

Simmons, Pepall and Trotter JJ.A.

BETWEEN

Dr. Stanislav Ustymenko and Anna Zelenova

Applicants (Appellants)

and

Sadochok Centre Inc. o/a Sadochok Preschool
    Centre

Respondent (Respondent)

John W. Bruggeman, for the appellants

Derrick M. Fulton and Taras Kulish, for the respondent

Heard and released orally: February 5, 2020

On appeal from the judgment of Justice Jane Ferguson of
    the Superior Court of Justice, dated May 7, 2019.

REASONS FOR DECISION

[1]

The respondent Sadochok Centre Inc., operating as Sadochok Preschool
    Centre, is a small, non-profit Ukrainian daycare centre. K.K. was hired in 1979
    as an administrator and bookkeeper and in 1989 also became a director. She
    resigned from the latter in 2016 and the former in 2017. The appellants became
    directors in January 2016. By the date of the hearing of the application, the
    appellants were no longer directors and had no other role at the Centre. The
    appellants appeal from the May 7, 2019 order of Ferguson J. dismissing their
    request for leave to commence a derivative action based on allegations that
    K.K. had misappropriated money in her capacity as director and derived personal
    benefit from the Centre.

[2]

Before the application judge, the parties agreed that a derivative
    action could be brought pursuant to equitable principles. Assuming without
    deciding that they were correct in that regard, we see no reason to interfere
    with the application judges decision. The evidence did not disclose that K.K.
    was paid as a director but as an administrator and bookkeeper. The Board of
    Directors investigated the allegations as did the Public Guardian and Trustee
    who decided to take no further material action.

[3]

Moreover, the application judge determined that the action was bound to
    fail. We agree.

[4]

Lastly, as for the application judges costs award, this is not a case
    that warrants the granting of leave to appeal.

[5]

For these reasons, the appeal is dismissed and leave to appeal costs is
    also dismissed. Costs of the appeal are to the respondent on a partial
    indemnity scale fixed in the amount of $15,000, inclusive of disbursements and
    HST.

Janet Simmons J.A.

S.E. Pepall J.A.

Gary Trotter J.A.


