Having found that the claims against P for conspiracy to injure and inducing
breach of contract were adequately pleaded, the motion judge erred in holding
that the proposed amendments did not disclose a reasonable cause of action
against P in her personal capacity as the allegations were mere claims against
the corporations of which P was a directing mind. Corporate actors can be separately liable if they have engaged in tortious conduct, even in the course of their
duty. There was a clear pleading of fraudulent conduct against P, which brought
the case squarely within the type of conduct where a claim against a directing
mind is not barred.
The motion judge erred in refusing to add the Way family trust on the basis
that there was no evidence that the trust had received any of the diverted funds.
Where a party wishes to amend a claim or add a new party within the limitation
period, the facts pleaded are taken to be true and provable (subject to unprovable
assumptive or speculative conclusions) and the court is to assess the tenability of
the claim on that basis. Once the motion judge determined that the proposed
pleadings adequately disclosed and pled the asserted causes of action, the fact
that the plaintiffs did not produce evidence to support the allegations was not a
reason to refuse the amendment.
The motion judge erred in refusing to allow the plaintiffs to change the relief
sought in the statement of claim from a claim for a 50/50 interest in Triumph to a
reversal of the shareholdings so that Schembrico would hold 55 per cent and Wayco
45 per cent. Section 248(3)(d) of the Business Corporations Act, R.S.O. 1990, c. B.16
(“OBCA”) lists as a potential remedy “an order directing an issue or exchange of
securities”. The facts pleaded that were alleged to constitute the oppression, if
proved, would give the court the authority to order the appropriate oppression
remedy provided under the OBCA. It would be for the trial judge to determine what
was appropriate based on the evidence and the submissions at that time.
Andersen Consulting Ltd. v. Canada (Attorney General),  O.J. No. 3576,
150 O.A.C. 177, 13 C.P.C. (5th) 251, 107 A.C. W.S. (3d) 759 (C.A.), apld
Other cases referred to
ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 101,
 O.J. No. 27, 168 D.L.R. (4th) 351, 117 O.A.C. 39, 41 B.L.R. (2d) 157,
39 C.C.E.L. (2d) 163, 44 C.C.L.T. (2d) 174, 85 A.C.W.S. (3d) 320 (C.A.); Hilltop
Group Ltd. v. Katana,  O.J. No. 1564, 104 A.C.W.S. (3d) 845 (S.C.J.);
Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 37 O.R. (3d)
97,  O.J. No. 391, 155 D.L.R. (4th) 627, 113 O.A.C. 375, 41 C.C.L. T. (2d)
282, 17 C.P.C. (4th) 170, 77 A.C. W.S. (3d) 518 (C.A.); Schembri v. Way,  O.J.
No. 4873, 2010 ONSC 5176, 76 B.L.R. (4th) 147 (S.C.J.); ScotiaMcLeod Inc. v.
Peoples Jewellers Ltd. (1995), 26 O.R. (3d) 481,  O.J. No. 3556, 129 D.L.R.
(4th) 711, 87 O.A.C. 129, 23 B.L.R. (2d) 165, 9 C.C.L.S. 97, 59 A.C. W.S. (3d) 213
Statutes referred to
Business Corporations Act, R.S.O. 1990, c. B.16, s. 248(3), (d)
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 5.03(4), 5.04(2), 26, 26.01
APPEAL from the order of Turnbull J.,  O.J. No. 3070,
2011 ONSC 8021 (S.C.J.) and  O.J. No. 4002, 2011 ONSC