(3) The claim for reapportionment of the share percentage
holdings in Triumph
 The plaintiffs sought to amend para. 2(k) of the statement of claim from claiming a 50/50 interest in Triumph to
reversing the shareholdings so that Schembrico would hold
55 per cent and Wayco 45 per cent. The motion judge held
that there was no factual basis for this claim as pleaded. At the
request of the defendants, the entire paragraph was struck
from the pleading with leave to amend.
 The plaintiffs rely on s. 248(3) of Ontario’s Business Corporations Act, R.S.O. 1990, c. B.16 (“OBCA”), which sets out the
available remedies for oppression. Section 248(3)(d) includes as
a potential remedy “an order directing an issue or exchange of
securities”. The defendants submit that the case law only allows
this type of remedy to be ordered where the circumstances call
for it and that there is no suggestion that a readjustment of the
share split in the joint venture corporation was ever contemplated as a remedy for any breach.
 They say that, at a minimum, the plaintiffs would have to
plead that Schembri Financial had a reasonable expectation
that it might secure a majority position in the event of a dispute
with Kingsley Financial, that a reapportionment of shares would
address the oppression and that there is no less intrusive way to
 In my view, the pleaded amendment should be allowed
under Rule 26. The facts pleaded that are alleged to constitute
the oppression, if proved, will give the court the authority to
order the appropriate oppression remedy provided under the
OBCA. It will be for the trial judge to determine what is appropriate based on the evidence and the submissions at the time.
There is no merit in attempting to fetter the discretion of the
trial judge at the pleading stage, subject to any particular circumstances not present in this case.
Additional Issue: Costs
 In their supplementary notice of appeal, the plaintiffs
objected to part of the costs order made by the trial judge “in the
cause”. There was no reference to this ground of appeal in their
factum. Some mention was made of the issue in oral argument. I
would not grant leave to appeal on this issue, which is a matter
of discretion for the motion judge.
 I would allow the appeal, set aside the order of the motion
judge and allow the motions to amend the pleading as follows: