





CITATION: Segway Enterprises Inc. v. Lacroix, 2011 ONCA
      214

DATE:  20110318


DOCKET: C52337


COURT OF APPEAL FOR ONTARIO


Rosenberg, Moldaver and Feldman JJ.A.


BETWEEN:


Segway Enterprises Inc., Maria Lucy Vandenhurk and
          Luigi Di Diodato personally and in their capacity as trustees of the Di
          Diodato Family Trust, and Wilma Smith, Mary Dibacco and Anna Sonser in their
          capacity as trustees of the Di Diodato Family Trust


Applicants (Respondents in Appeal)


and


Luc
          Lacroix personally and in his capacity as trustee of the Fiducie Familiale
          Lacroix, Andre Garceau personally and his capacity as trustee of the Fiducie
          Familiale Garceau, Societe De Gestion GLG Inc
., Banyan Work Health
          Solutions Inc.,

and Banyan Quebec Inc.


Respondents (
Appellants in Appeal)


Robert B. Cohen, for the appellants


Scott Kugler and Brent J. Arnold, for the respondents


Heard and endorsed: March 17, 2011


On appeal from the order of Justice Donald Cameron of the
          Superior Court of Justice dated May 28, 2010.


APPEAL BOOK ENDORSEMENT

[1]

We are satisfied that looked at as a whole, the order was fair and did
    not unfairly disadvantage the appellants. As the respondents point out, the
    parties agreed on a Valuation Date that crystallized the rights of the
    appellants and the respondents. This fundamental concept is properly reflected
    in the various terms of the order and, so far as could be done, protects
    vendors and purchasers. In particular, because as of the Valuation Date the
    appellants Locroix and Garceau no longer had any control of the companies, they
    were no longer to share in the actual profits and losses. All parties concede
    that in valuing the shares, expected profits would have to be taken into account
    by the valuators. If the different values are outside a reasonable rate (in
    this case fixed at 20%), the parties can return to the Commercial Court to have
    the matter adjudicated. Additionally, the parties can return to the Commercial
    Court to deal with issues such as interest that may have arisen because of the
    unexpected delay. However, this delay is not a reason to unwind the fundamental
    terms and structure of the order.
[2]

Accordingly, the appeal is dismissed.
[3]

As to the cross-appeal respecting costs of the application, while it is
    unfortunate that apparently the application judge did not entertain submissions
    or give reasons, having heard submissions respecting costs of the application,
    we are not persuaded that the application judge erred in the result in awarding
    no costs.
[4]

Accordingly, the cross-appeal is dismissed.
[5]

The respondents are entitled to their costs fixed at $15,000 inclusive
    of disbursements and HST.