The respondent’s success at trial was dependent on the
jury’s having accepted that Mr. Imeson had been sexually abused
by Tony “Doe” and that the abuse caused him harm. Dr. Smith’s
evidence ought not to have been admitted on those issues; however,
the jury was specifically instructed to consider his evidence
together with all of the other evidence in determining whether
the sexual assaults occurred. The only proper disposition, in my
view, is to allow the appeal and to direct a new trial.
 For these reasons, I would allow the appeal and direct a
new trial involving only the parties to this appeal.
 I would order the respondent to pay costs of the appeal in
the sum of $50,000, inclusive of disbursements and applicable
taxes, the amount agreed between the parties. I would reserve the
costs in the court below to the judge hearing the re-trial.
Aquam Corporation v. Coffey et al.
[Indexed as: Aquam Corp. v. Coffey]
2018 ONSC 6582
Superior Court of Justice, Gans J. November 2, 2018
Corporations — Shares — Valuation of shares of dissenting shareholders — Respondents dissenting from proposed amendments to company’s
articles to create convertible Class A and B preferred shares — Company
applying to fix fair market value of dissenting shareholders’ common
shares — Company valued on ongoing concern basis despite its straightened financial circumstances on Valuation Day — Discounted cash flow
method of evaluation used — Time delay of three months in commencement of projected cash flows being appropriate.
The respondents dissented from proposed amendments to the applicant company’s
articles to create convertible Class A and Class B preferred shares on the basis that the
transaction was dilutive of and prejudicial to the company’s common shareholders. The
company applied pursuant to s. 185(18) of the Ontario Business Corporations Act,
R.S.O. 1990, c. B.16 to fix the fair market value of the respondents’ common shares.
Held, the application should be allowed.
The company’s position that the liquidated approach to valuation should obtain
because the company was in straightened financial circumstances on valuation day
was not accepted. Rather, the company should be valued as an ongoing concern,
using the discounted cash flow (“DCF”) method of evaluation. The application of
the DCF to the company without any form of time delay in the commencement of
the projected cash flows would not be appropriate. A time delay of three months
was appropriate in the circumstances.