case, the impact of the misconduct on Charter-protected rights
was minimal and against the further fact that exclusion of the
evidence would put an end to the prosecution of a very serious
 Apart from the conclusory statements set out in para. 38,
above, the trial judge failed to engage in any meaningful balancing of the three Grant lines of inquiry. Once again, I am unable
to say that in the absence of this error, the trial judge’s decision
on the s. 24(2) analysis would necessarily have been the same.
 Based on the foregoing reasons, I would allow the appeal,
set aside the respondent’s acquittal and order a new trial before
a different judge of the Superior Court.
Zeubear Investments Ltd. et al. v.
Magi Seal Corporation et al.
Buttonwood Holdings Inc. et al. v.
Zeubear Investments Ltd. et al.
[Indexed as: Zeubear Investments Ltd. v. Magi Seal Corp.]
2010 ONCA 825
Court of Appeal for Ontario, O’Connor A.C.J.O., Simmons and Juriansz JJ.A.
December 7, 2010
Corporations — Shareholder agreements — Buy-sell provisions of
shareholders’ agreements setting out “minimum terms” of offer and
providing that “Notwithstanding any other provision hereof . . . the
Terms shall be deemed to provide” that at least 50 per cent of purchase
price was to be paid on closing — Application judge erring in interpreting those provisions as stipulating only minimum terms that shareholder had to include in offer in order to trigger buy-sell process rather
than as setting out actual terms that formed part of offer.
Group A and Group B were parties to two identical shareholders’ agreements.
The agreements contained a shotgun buy-sell clause. Section 4.12(2) of the
clause, headed “Minimum terms”, stated: “Notwithstanding any other provision
hereof . . . the Terms shall be deemed to provide” that at least 50 per cent of the
purchase price was to be paid in cash or by certified cheque or bank draft on closing. Group A triggered the buy-sell provisions, and Group B purported to accept
the offers to purchase Group A’s shares. Group A took the position that the purported acceptances were not made in accordance with the offers in its notices as
both the offer to purchase and the offer to sell in the notices provided that 100
per cent of the purchase price was to be paid on closing, whereas Group B’s