



COURT OF APPEAL FOR ONTARIO

CITATION: Elsley v. IP Trust, 2017 ONCA 341

DATE: 20170427

DOCKET: C61008

Feldman, Sharpe and Roberts JJ.A.

BETWEEN

Sandra Elsley

Plaintiff (Appellant)

and

Mildred Orescanin, Trustee for IP Trust and Shirley Bordynuik Trustee for
    Corp 1683091 and Shirley Bordynuik, Trustee for John Bordynuik Inc. and John
    Popovacki and Brian Seburn and Frank Coy A and John Bordynuik and John Doe and
    others

Defendants (Respondents)

Frederick Hawa, for the appellant

Mark Abradjian and Renata Kis, for the respondent

Heard and released orally: March 30, 2017

On appeal from the judgment of Justice Theresa Maddalena
    of the Superior Court of Justice, dated August 11, 2015.

ENDORSEMENT

[1]

The essential issue on this appeal is whether the motion judge erred in
    her conclusion that the appellant is not the sole or majority shareholder of
    John Bordynuik Inc. of Delaware (the Delaware Company) and therefore is not
    entitled to bring claims on behalf of, nor as an assignee of the Delaware
    Company against the respondents.

[2]

In our view, the record before the motion judge supports her conclusions
    that the respondent John Bordynuik was not obliged to, and did not give up his
    shares in the Delaware Company when he purchased his majority interest in JBI
    Inc. of Nevada (the Nevada Company). The email of June 24, 2009 from John
    Bordynuik to the Delaware shareholders as well as the Delaware Company share
    ledger from June 30, 2009, are two pieces of documentary evidence that the
    motion judge was entitled to accept, together with the affidavit evidence of
    John Bordynuik. The appellant relies on an acknowledgment in another document 
    the Settlement Agreement, apparently signed on June 25, 2009, for an
    acknowledgment by John Bordynuik that she says supports her interpretation of
    his obligations. However, the motion judge did not accept this interpretation
    which was inconsistent with the email and the other evidence.

[3]

We accept the motion judges interpretation. We therefore see no basis
    to set aside the findings or the decisions of the motion judge to grant summary
    judgment dismissing the appellants claims and making the declarations as set
    out in her order under appeal dated August 11, 2015. Costs to the respondents
    are fixed at the agreed amount of $25,000 inclusive of disbursements and
    applicable taxes.

K. Feldman
    J.A.

Robert J. Sharpe
    J.A.

L.B. Roberts
    J.A.


