



COURT OF APPEAL FOR ONTARIO

CITATION: Holmes v. Schonfeld Inc., 2016 ONCA 148

DATE: 20160224

DOCKET: C60734/C60744

Weiler, LaForme and Huscroft JJ.A.

BETWEEN

Scott Holmes and Jennifer Flynn

Plaintiffs (Appellants)

and

Schonfeld Inc.
and
    Bossy Nagy Geoffrey (BNG), previously known as the Michael Bossy Group

Defendant (
Respondent
)

AND BETWEEN

Scott Holmes and Jennifer Flynn

Plaintiffs

and

Schonfeld Inc.
and
Bossy Nagy Geoffrey (BNG), previously known as the Michael
    Bossy Group

Defendants (
Respondent
/
Appellant
)

Marc Munro, for the appellants Scott Holmes and Jennifer
    Flynn

Frank Bowman and Deepshikha Dutt, for the appellant
    Bossy Nagy Geoffrey (BNG), previously known as the Michael Bossy Group

Aubrey Kauffman and Dylan Chochla for the respondent
    Schonfeld Inc.

Heard: January 13, 2016

On appeal from the orders of Justice Thomas J. McEwen of
    the Superior Court of Justice, dated June 18, 2015, with reasons reported at
    2015 ONSC 3038.

Weiler J.A.:

A.

Overview

[1]

Schonfeld was appointed Monitor and Receiver over the assets,
    undertaking and properties of Holmes and Flynn and their companies. After
    Schonfeld was discharged, Holmes and Flynn were told by the Canada Revenue
    Agency (CRA) that, following a reassessment, they owed over one million dollars
    in unpaid taxes. Holmes and Flynn brought an action against Schonfeld, claiming
    that Schonfeld did not exercise reasonable care in managing Holmes and Flynns
    assets and that Schonfeld was obliged to engage in reasonable tax planning.

[2]

Holmes and Flynn also sued Bossy Nagy Geoffrey (BNG), their accountants
    and tax advisers before and during the receivership. BNG sought to bring a
    crossclaim (or, alternatively, third party claim) against Schonfeld.

[3]

Schonfeld successfully brought a motion to dismiss all claims against
    it. The appellants appeal.

B.

Issues on Appeal

[4]

The appellants Holmes and Flynn raise the following issues:

1.

Did the motions judge err in law in concluding that leave was required?

2.

Did the motions judge misapprehend the evidence and/or fail to consider
    relevant evidence?

3.

Did the motions judge apply the wrong test for granting leave?

4.

Did the motions judge err in concluding that the appellants Holmes and
    Flynn had not met the test for leave?

[5]

The appellant BNG raises the following issues:

1.

Did the motions judge err in concluding that the strong
prima facie
case standard should be applied to BNG?

2.

Did the motions judge err in failing to take into account the totality
    of evidence in concluding that BNGs claim against Schonfeld was without
    foundation and was frivolous and vexatious?

3.

Did the motions judge exceed its jurisdiction on a leave motion when he
    concluded that Schonfelds conduct did not meet the test for gross negligence?

C.

Facts

[6]

The appellants Scott Holmes and Jennifer Flynn are involved in
    longstanding and fractious litigation with Canadian National Railway (CN). On
    August 8, 2008, CN obtained a Mareva Order and an Anton Pillar Order against
    Holmes, Flynn, and the companies controlled by them (the Monitored Parties). On
    August 26, 2008, Schonfeld was appointed as Monitor to manage the assets and
    pay the legal fees and disbursements of the Monitored Parties. On December 4,
    2008, Schonfeld was also appointed Receiver of the Monitored Parties. Schonfeld
    was discharged on September 26, 2011. According to Holmes and Flynn, most of
    their assets were disbursed during the course of the receivership.

[7]

In early 2012, the CRA wrote several letters to Holmes and Flynn
    notifying them of outstanding tax liability for the years 2006-2009. This
    liability arose because Holmes and Flynn failed to repay loans made to them by
    their corporations; when not repaid within one year, these shareholder loans were
    considered income and taxed as such. This reassessment by the CRA resulted in
    Holmes and Flynn owing approximately $1 million in income tax.

[8]

On February 5, 2014, Holmes and Flynn brought an action against Schonfeld,
    claiming that Schonfeld failed to exercise a reasonable duty of care,
    supervision, and control over the management of their affairs during the course
    of the receivership. They argued that Schonfeld was obliged to engage in
    reasonable tax planning while managing their assets and should accordingly be
    liable for their post-discharge tax liability. Holmes and Flynn also brought an
    action against their accountants and tax advisors BNG, claiming that they also
    failed to fulfill their professional obligations. BNG brought a motion seeking
    leave to commence a crossclaim, or, alternatively, a third party claim, against
    Schonfeld.

[9]

Paragraph 7 of the Monitor Order stated that no proceeding shall be
    commenced against the Monitor without the Monitors consent or leave of the
    court. Paragraph 26 of the Receiver Order provided that nothing in that order
    shall derogate from the powers and protections described in the Monitor Order
    and that all provisions of the Monitor Order shall continue to apply to the
    activities of the Receiver. Both the Monitor Order and the Receiver Order limited
    Schonfelds liability to gross negligence or wilful misconduct. The Discharge
    Order contained a release of liability, again excepting gross negligence and
    wilful misconduct.

[10]

Because
    Holmes and Flynns action was commenced without the consent of Schonfeld and
    without leave of the court, Schonfeld brought a motion seeking an order
    dismissing the action and dismissing BNGs crossclaim. Holmes and Flynn denied
    that leave was required, but, in the alternative, asked for an order granting
    them leave
nunc pro tunc
.

D.

Decision Below

[11]

The
    motions came before McEwen J. He concluded that, on a plain reading of the
    Monitor, Receiver, and Discharge orders together, Holmes and Flynn required
    leave of the court to commence their action against Schonfeld. McEwen J.
    further held that, while Schonfeld would not suffer any prejudice or
    substantial injustice if leave were granted
nunc pro tunc
, leave
    should nevertheless be denied because it would not have been granted if sought
    at the appropriate time. He reasoned that, by virtue of the various orders,
    Holmes and Flynn would have to have a cause of action either in gross
    negligence or wilful misconduct, and that on either the regular standard for
    granting leave (where leave will be granted unless there is no foundation for
    the claim or the action is frivolous or vexatious) or the stricter standard
    (where leave will be granted if the plaintiffs can demonstrate a strong
prima
    facie
case), Holmes and Flynn could not succeed.

[12]

McEwen
    J. concluded that there was no foundation for the claim that Schonfelds
    conduct constituted a very marked departure from the standards by which a
    reasonable and competent receiver in the same circumstances would have
    conducted itself, nor was there a foundation for the claim that Schonfeld
    conducted itself with reckless indifference or in a manner that it knew was
    wrong.

[13]

Finally,
    McEwen J. concluded that BNG could not be in a better position to commence an
    action than Holmes and Flynn, and accordingly dismissed BNGs motion for leave.

E.

Analysis

(1)

Holmes and Flynns Appeal (C60734)

[14]

Whether
    or not leave is required for Holmes and Flynn to commence their action is a
    question of law and the standard of review is correctness. Assuming leave was required,
    the motions judges refusal to grant leave is a discretionary decision. This
    court should only interfere if the motions judge misdirected himself, came to
    a decision that is so clearly wrong that it amounts to an injustice, or if the
    motions judge gave no or insufficient weight to relevant considerations:
Penner
    v. Niagara Regional Police Services Board
, 2013 SCC 19, [2013] 2 S.C.R.
    125, at para. 27.

(a)

Did the motions judge err in law in concluding that leave was required?

[15]

Holmes
    and Flynn submit that they did not require leave to commence their action. A
    plain reading of the various orders shows that leave is required by the Monitor
    order and not by the Receiver order, and they sought to bring an action against
    Schonfeld in its capacity as Receiver. Although the appellants acknowledge that
    paragraph 26 of the Receiver Order incorporates the provisions of the Monitor
    Order, they submit that the powers and protections of the Monitor Order did not
    cover the activities of the Receiver. The appellants further argue the separate
    limitation of liability clause in paragraph 25 of the Receiver Order would be
    superfluous if paragraph 26 of the Receiver Order incorporated every protection
    afforded in the Monitor Order.

[16]

The
    trial judge did not err. The Receiver Order is supplemental to the Monitor
    Order. Properly interpreted, Schonfeld as Receiver is entitled to the
    protections of paragraph 7 of the Monitor Order, and leave is therefore
    required. The separate limitation of liability clauses do not detract from this
    interpretation. Furthermore, the Discharge Order expressly provides that
    Schonfeld will continue to have the full protections provided for in the
    Monitor and Receiver orders. I would reject this submission.

[17]

The
    next question is whether leave would have been granted, had it been sought at
    the appropriate time. In this regard the appellant makes several submissions.

(b)

Did the motions judge misapprehend the evidence and/or fail to consider
    relevant evidence?

[18]

The
    motions judge based his conclusion that Schonfelds conduct did not constitute
    gross negligence or wilful misconduct on five findings of fact. They are: a)
    the alleged tax liabilities began prior to Schonfeld becoming involved in the
    matter; b) Homes and Flynn were fully aware of the shareholder loans that had
    taken place; c) throughout the relevant time BNG provided accounting services
    and tax advice to Holmes and Flynn; d) Schonfelds mandate as Monitor/Receiver
    did not include providing the type of services to Holmes and Flynn that they now
    complain they did not receive; and, e) Homes and Flynn either consented to or
    did not oppose the order that limited Schonfelds liability and led to its
    discharge.

[19]

Holmes
    and Flynn attack these factual findings and argue that they lack any
    evidentiary foundation (or are immaterial) and should be set aside. They submit
    that while the tax liability began prior to the appointment of Schonfeld,
    Schonfelds mismanagement increased their tax liability over the course of the
    receivership, and that the potential tax debt could have been eliminated by
    simply moving funds from their personal accounts into the corporate accounts.
    They further submit that their personal knowledge of the existence of the
    shareholder loans is immaterial to whether Schonfeld fulfilled its duty of care
    as Receiver. Neither Schonfeld nor BNG consulted with the appellants regarding
    the management of their affairs.

[20]

The
    appellants main argument is that, contrary to the conclusion of the motions
    judge, the type of services involved  income tax advice  was very much
    within the mandate contemplated by the Receiver Order. Schonfeld was obligated
    to preserve, protect and maintain control of the property and had access to all
    of the financial statements and records showing the indebtedness. It also had
    the power to settle any debts and was obligated to try to realize on the assets
    of the related companies by collecting the shareholder loans. In addition to
    the terms of the Receiver Order, Schonfeld also had a common law duty to manage
    the property as a prudent business person would.

[21]

Holmes
    and Flynn further submit that the fact they did not oppose any of the orders
    that led to the termination of the receivership is immaterial because the tax
    liability only became apparent following the discharge of the receiver.

[22]

I
    would not give effect to these submissions. First, there is ample evidence to
    support the motions judges finding of fact that the tax liabilities began
    prior to Schonfeld becoming involved in the matter. Holmes admits that the
    re-assessment for the 2006 taxation year involved the advance of a loan and the
    failure to repay that loan with respect to taxation years that pre-dated the
    appointment of Schonfeld as Monitor or Receiver.

[23]

Second,
    the powers and authorizations given to Schonfeld as Receiver and Monitor were
    detailed and precise. The orders directed Schonfeld to liquidate particular
    assets, in a particular order and to use the proceeds to pay particular
    expenses. For example, in an email dated February 20, 2009, from Schonfeld to
    BNG, Schonfeld indicated that, The Order specifically indicates that funds
    from 2035113 are to be used to pay the legal fees which are covered in the
    Mareva. Had Schonfeld moved funds as the appellants submit it ought to have
    done, it would not have been in compliance with the orders.

[24]

In
    relation to Flynn, loans made to her and upon which she was reassessed were
    made by a numbered company which was not a Monitored Party under the Monitor
    Order or the Receiver Order and for which Schonfeld did not receive financial
    statements.

[25]

Third,
    in the same February 20, 2009 email, Schonfeld candidly told BNG that it did
    not know how certain payments were to be accounted for from a tax perspective,
    implying that it was up to BNG. BNG admits that it was, at all material times,
    the tax accountants of Holmes and Flynn and their companies. This role was
    disclosed to the Court in the first report of the Monitor dated November 14,
    2008. It stated that the Monitored Parties utilized the services of an
    independent accounting firm to prepare financial statements, statutory filings,
    and income tax returns, both personal and corporate. It also stated that the
    Monitor attended at the office of the accounting firm on a regular basis for
    the purpose of delivering accounting documents, tax forms and retrieving
    completed financial statements and tax returns. This evidence supports the
    trial judges finding that Schonfelds mandate as Monitor and Receiver did not
    include providing the type of services to Holmes and Flynn that they now
    complain they did not receive.

[26]

Finally,
    the motions judge was entitled to consider that Holmes and Flynn had actual
    knowledge of their shareholder loans. Schonfeld did not. For example, the
    Preliminary Summary of Assets and Liabilities As Identified by Scott Holmes indicates
    an amount of money due, as at June 30, 2008, to Monterey Consulting &
    Construction Ltd. Holmes is not a Shareholder of this company. Monterey is
    owned by 2035113 Ontario Ltd., and Holmes is the sole shareholder of that
    company. It appears that Holmes was reassessed by the CRA as a person
    connected with a shareholder pursuant to s. 15(2) of the
Income Tax Act
,
R.S.C. 1985, c. 1 (5th Supp.).

[27]

The
    motions judge was also entitled to take into consideration that Holmes and
    Flynns objection to the conduct of Schonfeld concerning the preservation and
    protection of their assets was not made in a timely fashion at the discharge
    hearing.

[28]

The
    motions judge did not misapprehend the evidence. The fact that the motions
    judge did not advert to some of the evidence upon which the appellants rely
    does not mean that he failed to consider it: see
Housen v. Nikolaisen
,
    2002 SCC 33, [2002] 2 S.C.R. 235, at para. 46;
Canadian Broadcasting Corp.
    Pension Plan v. BF Realty Holdings Ltd.
(2002), 160 O.A.C. 72 (C.A.), at
    para. 64.

(c)

Did the motions judge apply the wrong test for granting leave?

[29]

Both
    parties agree that the threshold for leave in this context is not a high one.
    It is designed to protect the receiver against frivolous or vexatious actions
    or actions without basis in fact. The party seeking leave must only show a
    reasonable cause of action with some evidentiary basis, or in other words, the
    evidence must disclose a
prima facie
case: see
GMAC Commercial
    Credit Corp. - Canada v. TCT Logistics Inc.
, 2006 SCC 35, [2006] 2 S.C.R.
    123, at para. 59.

[30]

The
    appellant submits that the motions judge effectively determined the question of
    whether Schonfeld was grossly negligent  a factual issue for trial rather
    than asking whether a
prima facie
case of possible negligent conduct
    was established.

[31]

The
    liability of the Monitor and Receiver in this case was limited by the various
    orders to gross negligence or wilful misconduct. Accordingly, the analysis as
    to whether there is a factual foundation for a claim does not relate to mere
    negligence. In such circumstances, the test is whether the Receiver
    demonstrated a very marked departure from the standards by which responsible
    and competent people in such circumstances would have acted or conducted
    themselves, or in a manner such that it knew what it was doing was wrong or was
    recklessly indifferent in its conduct:
Alberta Treasury Branches v.
    Elaborate Homes Ltd.
, 2014 ABQB 350, 590 A.R. 156, at para. 39. The motions
    judge applied this test, and I agree that this is the proper test.

(d)

Did the motions judge err in concluding that the appellants Holmes and
    Flynn had not met the test for leave?

[32]

The
    appellants submit that even if the motions judge applied the correct test, he
    erred in concluding that the evidence did not establish conduct that
    constitutes gross negligence or wilful misconduct. They submit that Schonfelds
    admission that it was uninterested in the tax consequences of its conduct is
    evidence that meets the test.

[33]

Based
    on the motions judges findings of fact, which I have upheld, he did not err in
    concluding that there was no foundation for a claim in gross negligence or
    wilful misconduct.

[34]

The
    appellants further submit that the motions judge was wrong to rely only on the
    Receiver Order to determine Schonfelds mandate. Schonfeld, they submit, had an
    overarching duty of care in the management of the Monitored Parties assets.

[35]

In
    relation to this latter submission, I note that the Discharge Order contains a release
    of any and all liability relating to matters raised or which could have been
    raised within the proceedings; any liability not amounting to gross negligence
    or wilful misconduct falls within the scope of this release, even if the nature
    of the claim was not known at the time of discharge. The motions judge
    correctly noted that a more stringent standard for the granting of leave  a
strong

prima facie
case  may be appropriate in
    cases where the issues raised in the action could have been raised in the
    discharge proceedings: see
Bank of America Canada v. Willann Investments
    Ltd.
(1993), 23 C.B.R. (3d) 98 (Ont. Gen. Div.), at para 9;
Gallo v.
    Beber
(1998), 116 O.A.C. 340 (C.A.), at para. 7.

[36]

The
    motions judge noted, at para. 23 of his reasons, that the tax planning issues
    raised by Holmes and Flynn could have been raised in the discharge proceedings.
    I agree. Schonfelds conduct was approved of by the court and Schonfeld was
    ultimately discharged, all pursuant to motions served upon Holmes and Flynn. Nevertheless,
    I would agree with the motions judges conclusion that regardless of whether
    the regular standard described in
GMAC
or the stricter standard
    described in
Gallo
is applied, Holmes and Flynn have failed to
    establish a
prima facie
case of gross negligence or wilful misconduct.
    Accordingly, the motions judge did not err in concluding that Holmes and Flynn
    should not be granted leave to commence their action against Schonfeld.

(2)

BNGs Appeal (C60744)

[37]

As
    in Holmes and Flynns appeal, the motions judges refusal to grant BNG leave to
    bring a crossclaim or third party claim against Schonfeld is a discretionary
    decision, and this court will only intervene where there is misdirection, the
    decision is so clearly wrong that an injustice is occasioned, or where no or
    insufficient weight is given to relevant considerations.

[38]

BNG
    sought leave to commence a crossclaim and counterclaim or a third party claim
    against Schonfeld for contribution and indemnity. Its position was that the
    appellants Holmes and Flynn had not suffered any damages. In the alternative,
    if they had, BNG pleaded that: the damages were premature, excessive, remote
    and unrecoverable in law, and Holmes and Flynn had not mitigated their losses.
    BNG further pleaded that any damages were caused either by the negligence of
    Holmes and Flynn themselves, or by the actions, inactions and gross negligence
    of Schonfeld, given that Schonfeld knew of the outstanding shareholder loans
    and failed to require Holmes and Flynn to arrange repayment and/or to ensure
    that sufficient funds were set aside for such tax liability arising from the
    consequences of failing to repay such shareholder loans. Further, BNG alleged
    that Schonfeld failed to take reasonable steps to pursue appropriate strategies
    to eliminate or minimize potential tax liability and to manage the assets and
    undertakings of Holmes and Flynn in a manner that would eliminate or minimize
    tax liability.

[39]

The
    motions judge dismissed BNGs application for leave, at para. 33 of his
    reasons, by simply saying, In law, BNG cannot be in a better position than
    Holmes and Flynn to pursue its action against Schonfeld. Thus, for the reasons
    set out above, BNGs motion requesting leave to file a crossclaim or in the
    alternative a third party claim is similarly dismissed.

[40]

BNG
    raises several grounds of appeal, including that the motions judge erred by
    applying the strong
prima facie
case standard to BNG. At the outset, I
    note that the motions judge did not explicitly state that the strong
prima
    facie
case standard should be applied to BNG. He stated that he was
    dismissing BNGs application for leave for the reasons he had stated above. In
    my view, the same reasons apply to Holmes and Flynns proposed claim and BNGs
    proposed crossclaim because there is only one negligence claim, not two, as I will
    explain below.

[41]

As
    I have noted, the motions judge observed that the strong
prima facie
case standard may be appropriate where the issues raised in the action could
    have been raised in the discharge proceedings, and concluded that the reasonableness
    of Schonfelds conduct from a tax planning perspective and the potential tax
    liability of Holmes and Flynn were issues that could have been raised in the
    discharge proceedings.

[42]

On
    appeal, BNG points out that it was not a party to the Discharge Motion and had
    no notice of it, and as such had no legal standing or basis to raise its
    concerns at the Discharge Motion.

[43]

BNG
    further submits it seeks leave to sue Schonfeld on different grounds than
    Holmes and Flynn. The essence of BNGs claim is not that Schonfeld should have
    provided tax planning advice to the Monitored Parties. BNG submits that Schonfeld
    failed to make any effort to collect the shareholder loans which were an asset
    of the Monitored Parties. As a result, the loans were deemed to be income of
    Holmes and Flynn pursuant to s. 15 of the
Income Tax Act
. Thus, BNG
    argues, the conduct at issue was not the same as on the Discharge Motion. The
    motions judge failed to consider case law before him that highlights a
    receivers duty to take steps to pay tax as it becomes due and to minimize tax
    liability. Here, Schonfeld allowed the estates tax liability to surpass its
    remaining assets. The motions judge ignored the $1,700,000 in fees and
    disbursements billed by Schonfeld and removed from the estate.

[44]

Schonfelds
    position is that while BNG was not served with the motion records seeking
    approval of Schonfelds conduct, the same principle should apply. Both the Receiver
    Order appointing Schonfeld as well as the Discharge Order provide that Schonfeld
    can only be sued for gross negligence or wilful misconduct. Court approval
    would have little value if it only offered protection from claims brought by
    served parties. It submits that the conduct at issue was before the court even
    if BNG was not. BNGs pleadings rely on the pleadings made by Holmes and Flynn.
    Schonfeld is an officer of the court. As such, the protections given to
    Schonfeld by the court apply to anyone seeking to sue Schonfeld.

[45]

It
    is important to clarify the nature of BNGs involvement in the action.

[46]

BNG
    is a third party to the receivership and was not present at the discharge
    hearing. Nonetheless, in my view, it is barred from instituting proceedings in
    negligence by the release clause of the discharge order. The release clause
    allows the court to protect the discharged receiver, a former court officer,
    from claims arising out of the exercise of its role:
Ed Mirvish Enterprises
    Ltd. v. Stinson Hospitality Inc.
, 2009 CanLII 55113 (Ont. S.C.), at para.
    14,
per
Pepall J.

[47]

The
    release clause also allows the receiver to distribute funds upon discharge
    without the need to hold back funds in case of potential liability: see
Ogopogo
    Beach Resort Ltd. v. Happy Valley Resort Ltd.
, 2010 BCSC 996 (CanLII), at
    para. 37. The wording of the release clause in the present case, using the
    language of the Superior Courts model order, was broad enough to insulate
    against third party claims, as it was in the similar order in
Ogopogo Beach
    Resort
, at para. 40. The former receiver is not insulated against claims
    for gross negligence and wilful misconduct, but these can only be brought with
    leave of the court: see
Ed Mirvish Enterprises
, at para. 14. This
    rationale applies equally to would-be claimants who are parties and also to third
    parties.

[48]

BNG,
    however, did not actually plead a free-standing negligence or gross negligence
    claim against Schonfeld. It did not plead that Schonfeld owed it a duty of care
    in tort. BNGs pleadings only seek contribution and indemnity from its
    co-defendant Schonfeld, in the event that BNG is found to be liable to Holmes
    and Flynn. The closest BNG comes to suggesting that Schonfeld was negligent in
    its conduct towards BNG is when it points out, in its factum at para. 43, that
    Schonfeld did not consult BNG before making any financial decisions about the
    Monitored Parties. Absent a pleading by BNG that Schonfeld, as Receiver, owed
    BNG a legal duty to consult it, however, the evidence of a lack of consultation
    cannot establish a cause of action in negligence, let alone gross negligence.

[49]

Ultimately,
    BNGs arguments on this appeal benefit Holmes and Flynn by raising additional
    allegations of negligent conduct on the part of Schonfeld in its capacity as
    Monitor and Receiver. Unfortunately for BNG, while the allegedly negligent
    conduct it raises may be different than the allegations of negligence pleaded
    by Holmes and Flynn, all of this conduct could have, and should have, been
    raised by Holmes and Flynn during the course of the discharge proceedings.

[50]

The
    motions judges conclusion that, BNG cannot be in a better position than
    Holmes and Flynn to pursue its action against Schonfeld simply captured the
    reality that, given that BNG did not assert a free-standing negligence claim
    against Schonfeld but instead a crossclaim seeking contribution and indemnity, BNGs
    ability to claim against Schonfeld is dependent on Holmes and Flynns ability
    to claim against Schonfeld. Put another way, BNG cannot do indirectly  hold
    Schonfeld responsible for Holmes and Flynns losses  what Holmes and Flynn
    cannot do directly. Given the motion judges conclusion that Holmes and Flynn had
    not made out a
prima facie
case, and so accordingly should not be
    granted leave
nunc pro tunc
, this was sufficient to also dispose of
    BNGs claim. I agree with that conclusion, and would dismiss BNGs appeal.

F.

Disposition

[51]

For
    the reasons above, I would dismiss both appeals.

[52]

As
    the successful party, Schonfeld is entitled to its costs of the appeal. I would
    award Schonfeld $30,000, inclusive of disbursements and taxes, on a partial indemnity
    basis, and make Holmes, Flynn and BNG jointly and severally liable for this
    amount.

Released: HSL February 24, 2016

Karen M. Weiler
    J.A.

I agree H.S. LaForme
    J.A.

I agree Grant
    Huscroft J.A.


