Citation: Milburn v. Growthworks Canadian Fund Ltd., 2013 NSSC 69
Date: 20130220
Docket: Syd No. 296202
Registry: Halifax
Between:
Douglas Milburn, Ian Campbell, John Campbell, Norm
Carmichael, Marilyn Gillis, Gerry Haberer, Michael
Milburn, Thomas Murphy, John Ritter, Armin Schabel,
Frances Smith, Herman Koza, Roy MacNeil, Allan
MacMillan, Michelle Milburn, Milburn Family Trust, A.
Riberio Holdings, Karin Allen, Pat Archer, Mortimer
Brown, Elizabeth Carmichael, Dan Chobotiuk, Sion
Jennings, Elizabeth Lynk, Eleanor Mack, Christopher
Milburn, Colin Noble, Malcolm Noble, Alex Riberio,
Kevin Schabel, Tom Schneider, Hanna Shaheen, Maja-Lisa
Thomson, Jon Woeller, Kausar Mian, Donald Archer and
Norton Campbell
Plaintiffs
v.
GrowthWorks Canadian Fund Ltd., Englefield House No.
4 Inc., Walsingham Fund, Richard Black, Alisha Hirsch,
Scott Pelton, Tom Saunders, John Gardner and Vince
Mifsud
Defendants
Revised Decision: The text of the original decision has been corrected according to the erratum dated March 7, 2013. The text of the erratum is appended to this decision. This decision replaces the previously released decision
Judge: The Honourable Justice Michael J. Wood
Heard: February 14, 2013 (in Chambers), in Halifax, Nova Scotia
Decision: February 20, 2013 (Orally)
Written Release
of Decision: February 27, 2013
Counsel: Colin Pendrith and Theodore Frankel, for the Plaintiffs
John A. Keith and Richard Norman, for the Defendants,
GrowthWorks Canadian Fund Ltd. and Scott Pelton
Andrew Fraser and Chad Horton, for the Defendants,
Englefield House No. 4 Inc., Walsingham Fund, Richard
Black, Alisha Hirsch, John Gardner and Vince Mifsud
Sean Foreman (Watching Brief), for Advanced Glazing Technologies Limited, Advanced Glazing Limited and Protocase Incorporated
By the Court: (Orally)
[1] In May, 2008, thirty-seven individuals commenced legal proceedings alleging that their interests as shareholders of Advanced Glazing Technologies Limited were being oppressed. They sought relief pursuant to s. 5 of the Third Schedule of the Companies Act. That proceeding was commenced as an application inter partes and was supported by the affidavit of Dr. Douglas Milburn. In that affidavit, he said that the company was created in May, 2005 as a holding company for Advanced Glazings Limited. That latter company was founded by Dr. Milburn in 1995 for the development of technology to be used in the greenhouse industry. It subsequently developed an architectural glass product designed to make more efficient use of natural daylight.
[2] The respondents to the initial proceeding included GrowthWorks Canadian Fund Ltd. and Englefield House No. 4 Inc., which provided venture capital to Advanced Glazing Technologies Limited. The thirty-seven applicants were described as owning common shares in that company.
[3] In March, 2012, the proceeding was converted from an application to an action by an order of Justice Murray. I will refer to this as the Sydney action since that proceeding was initiated out of and continues to be administered by the Sydney Prothonotary’s office.
[4] In December, 2009, Englefield House No. 4 Inc. commenced an action in Halifax, which named Dr. Milburn, Advanced Glazing Technologies Limited and others as defendants. This included seven of the individuals who were plaintiffs in the Sydney action. I will refer to this proceeding as the Halifax action.
[5] In the Halifax action, Englefield House alleged that the defendants had engaged in oppressive conduct, and sought relief pursuant to s. 5 of the Third Schedule of the Companies Act. The seven individual defendants who were also plaintiffs in the Sydney action filed a counter-claim and issued a third party claim. The allegations in those two claims were essentially the same as those being made by the plaintiffs in the Sydney action.
[6] Issues have now arisen in both proceedings with respect to disclosure of documents and discovery examinations of the individual shareholders, and whether Dr. Milburn should be appointed to act as a representative party on their behalf.
[7] On February 14, 2013, I heard the following motions:
(1) A request by the defendants’ GrowthWorks Canadian Fund Ltd. and Scott Pelton for an order requiring that all of the individual plaintiffs in the Sydney action provide affidavits disclosing documents and seeking directions for location of the discovery examinations of those individuals.
(2) A request by Englefield House No. 4 Inc. for an order that the thirty-seven plaintiffs in the Sydney action provide affidavits disclosing documents and the seven individual defendants in the Halifax action do the same.
(3) A request by the thirty-seven plaintiffs in the Sydney action and the plaintiffs by counterclaim in the Halifax action for appointment of Dr. Milburn to act as their representative for purposes of those proceedings. Alternatively, they seek an order relieving them of the obligation to provide individual affidavits disclosing documents.
[8] During the hearing, counsel reached agreement on several issues which resolved some aspects of the motions. The seven individual shareholders who were plaintiffs by counterclaim in the Halifax proceeding agreed that Dr. Milburn should not be appointed to act in a representative capacity in that proceeding. They also acknowledged that they were obliged to provide individual affidavits disclosing documents and would be subject to discovery examination. The parties agreed that if there were to be discovery examinations of the individual plaintiffs in the Sydney action, those who reside in Cape Breton would be examined in Sydney, those who reside in Ontario would be discovered in Toronto, and those who reside in mainland Nova Scotia would be discovered in Halifax.
[9] At the hearing, counsel for both GrowthWorks and Englefield House made a motion to strike portions of the affidavit of Colin Pendrith, deposed to on February 1, 2013, filed in support of the request for appointment of Dr. Milburn as a representative party, and seeking relief from the obligation to provide individual affidavits disclosing documents.
[10] Mr. Pendrith is counsel for the individual shareholders and the challenges to his affidavit were that it contained inadmissible hearsay, opinion and allegations in the nature of argument rather than evidence. At the hearing, I granted the relief in part and struck out some of the paragraphs in Mr. Pendrith’s affidavit.
[11] As a result of the agreements reached by counsel during the hearing, there remained two unresolved issues for my determination, and these are:
(1) Whether Dr. Milburn should be appointed as representative of the other plaintiffs in the Sydney action, pursuant to Civil Procedure Rule 68.08.
(2) Alternatively, whether the plaintiffs in the Sydney action should be relieved from filing individual affidavits disclosing documents.
APPOINTMENT OF DR. MILBURN AS A REPRESENTATIVE PARTY
[12] The original notice of motion filed on behalf of the Sydney plaintiffs requested appointment of Dr. Milburn alternatively under Rule 68.08 or 36.01(f). At the hearing, counsel did not pursue any argument for appointment pursuant to Rule 36.01(f) and indicated they were no longer relying on that provision. Any entitlement to appoint Dr. Milburn as representative would have to be found in Rule 68.08, which provides as follows:
Simple representative proceeding
68.08 (1) A judge who is satisfied on all of the following may appoint a member of an organization to start a proceeding as plaintiff or applicant on behalf of all members of the organization:
(a) the organization is not incorporated and cannot otherwise assert a right in court;
(b) the members of the organization are identified;
(c) all members agree with the appointment, or the appointment is in the interest of the members as a whole;
(d) members have been given sufficient notice of the application for the appointment;
(e) the claim to be made is not appropriate to the expense or complexity of procedures under the Class Proceedings Act;
(f) it would not be in the interests of justice to require members to proceed individually.
(2) A party, an interested person who is not a party, the prothonotary, or a judge on the judge’s own motion, may make a motion to appoint a representative in an action or application that meets the criteria in Rule 68.08(1) but was started without an appointment.
(3) An order made in a representative proceeding binds all members who are given notice of the application, or of the motion, for the appointment of a representative.
[13] By way of background, I would note that the Sydney action was commenced as an application in 2008. All thirty-seven of the plaintiffs were initial applicants. The application was converted to an action by order of Justice Murray in March, 2012 as a result of a motion made by the respondents. In December, 2012, the Court issued an order that the Sydney and Halifax actions be heard together, but not consolidated.
[14] During the fall of 2012, discovery disclosure was taking place. For example, Dr. Milburn’s affidavit disclosing documents was provided in late November. By early January, 2013, a dispute had arisen as to whether the individual plaintiffs should be required to produce affidavits disclosing documents. The position advanced on behalf of the Sydney plaintiffs was that Dr. Milburn’s affidavit represented comprehensive disclosure, which encompassed all relevant documents in their collective possession. Individual affidavits were said to be unnecessary and burdensome to the plaintiffs.
[15] Mr. Keith, on behalf of GrowthWorks, raised the issue with the Honourable Justice McDougall who was assigned as the case management judge for the two proceedings. In response to Mr. Keith’s position that the individual plaintiffs should provide affidavits disclosing documents, Mr. Pendrith, on behalf of the individual plaintiffs, wrote to Justice McDougall on January 11, 2013. In that correspondence, he proposed that the Court give directions pursuant to Rule 15.07 dispensing with the requirement for individual affidavits. After setting out his position with respect to why individual affidavits should not be required, Mr. Pendrith stated as follows:
The reasonable solution in the circumstances is to dispense with the requirement that each common shareholder provide a redundant affidavit disclosing documents. In the alternative, we will be required to bring a motion for a representative action, which could cause further delay.
[16] That appears to be the first reference to the possibility of having the Sydney matter proceed as a representative action. Having read all of the materials submitted and listened to the submissions of counsel at the hearing, it is obvious to me that the primary reason for the request to appoint Dr. Milburn as a representative of the individual shareholders is to avoid any requirement to provide individual affidavits disclosing documents, as well as to foreclose any automatic right for these people to be discovered as parties.
[17] One of the primary requirements for appointment of a representative pursuant to Rule 68.08 is the existence of an “organization” with readily identifiable members who have given consent or for whom appointment is in their interest. It is also necessary that members be given notice of the application for the appointment.
[18] In this case, the Sydney plaintiffs represent some, but not all, of the common shareholders of Advanced Glazing Technologies Limited. Counsel for the plaintiffs at the hearing suggested that this subset of the common shareholders should be considered “the organization” contemplated by Rule 68.08 even though he acknowledged that all common shareholders would be affected in the same way by the relief being sought.
[19] With respect to the requirement that members of the organization be notified of the application for appointment and consent (or have the court conclude that the appointment would be in their interests), there is no evidence before me that notice has been provided or consent given. In Mr. Pendrith’s affidavit of February 1, 2013, para. 18 had provided, in part:
18. I am advised by Milburn and do verily believe that 34 of the Common Shareholders have expressly agreed with the appointment of Douglas Milburn to represent their interests, while the remaining 3 have not objected. ...
[20] On the motion of the defendants, I struck out that paragraph on the basis that this evidence was hearsay and therefore inadmissible. Even if I had not done so, I do not think that the requirement for notice and possible consent is satisfied by the representative party stating that he has spoken to the members of the proposed group and obtained their blessing.
[21] Another feature of a representative proceeding is that it allows a claim to proceed on behalf of a group when individual claims are unlikely to be practical. Typically, this would be where litigation costs might outweigh the benefits to any one individual. In this case, the thirty-seven plaintiffs chose to start the proceeding naming each of them as a plaintiff. The matter continued in that fashion through several court appearances over a period of almost five years. This would certainly suggest that these plaintiffs were prepared to proceed with their oppression claims as individuals, rather than in a representative proceeding.
[22] As noted above, the request for appointment of a representative was triggered by concerns with respect to the burden of producing individual affidavits disclosing documents. There was nothing in the evidentiary record quantifying this burden, although, in argument, counsel for the plaintiffs acknowledged that it was simply a matter of drafting individual affidavits and arranging to have them signed, which might involve retaining local counsel in the areas where the plaintiffs reside.
[23] The defendants argued that the evidentiary record was not sufficient to justify appointment of a representative primarily to avoid disclosure obligations. They also argue that Dr. Milburn was not in the same position as the other plaintiff shareholders, and so would not be a proper representative in any event. They note that as founder of the company and a former officer and director, he has different interests and expectations in the operation of the company. Since this is an oppression case, it will be necessary to ascertain the expectations of the plaintiffs at the time they became shareholders, and assess whether those expectations were reasonable and violated by the conduct of the defendants.
[24] Counsel for the plaintiffs argue that all of the shareholders must be held to have the same expectations because of the requirement that these be objectively reasonable. I do not agree. The question of expectations will be determined based upon information provided to the shareholder and promises given prior to their investment. There is nothing before me indicating the circumstances under which each of the individual plaintiffs became shareholders and, therefore, I cannot conclude that they all had the same expectations. Although the requirement that the expectations be reasonable could have the effect of narrowing the scope of potential shareholder expectations, it does not mean that they must be identical.
[25] Although not in the evidentiary record, counsel for the plaintiffs indicated in their submissions that Dr. Milburn was, in fact, the person who negotiated with the individual shareholders with respect to their investment in the company. If so, it will be his advice and representations which define their expectations. Whether this places him in a position of conflict which should disqualify him from being their representative is unknown, and I am not prepared to speculate on that issue. I raise this point simply to illustrate that with the limited factual information in the record, I cannot determine the extent to which Dr. Milburn and the other plaintiffs share a common expectation and interest in the management of the affairs of the company.
[26] As the opening sentence of Rule 68.08 indicates, the appointment of a representative is discretionary, and I am not prepared to exercise that discretion and appoint Dr. Milburn to represent the plaintiffs in the Sydney action based upon the circumstances presented to me. Included in the factors which I have considered in coming to this conclusion are the following:
(1) The proceeding was initiated by thirty-seven individual plaintiffs and continued in that fashion for several years.
(2) The motion to appoint a representative is primarily motivated to avoid disclosure and discovery obligations.
(3) I am not satisfied that the thirty-seven plaintiffs are an appropriate group to be represented since they do not include all of the common shareholders of the company.
(4) There is no evidence that sufficient notice has been provided to all members of the potential group.
(5) I do not have sufficient evidence to determine that appointment of the representative is in the interest of the members as a whole where the only potential benefit appears to be avoidance of disclosure.
(6) I am not satisfied that Dr. Milburn necessarily has the same community of interest as the other members and may, therefore, not be an appropriate representative.
(7) The assessment of reasonable expectations to support an oppression remedy requires an individual assessment of each shareholder’s circumstances which may differ within the proposed group.
(8) The Small Shareholders’ Agreement relied upon by the plaintiffs as setting out their rights and duties as shareholders, and the management and operation of the company is signed by seven individuals who are not named as plaintiffs. In addition, four of the plaintiffs do not appear to have signed the Small Shareholders’ Agreement. While there may be explanations for these discrepancies, they are not before me. This further confirms that there is some uncertainty with respect to the community of interest of the named plaintiffs.
[27] For all of these reasons, I will dismiss the plaintiffs’ motion for appointment of Dr. Milburn as a representative pursuant to Rule 68.08.
REQUEST FOR AFFIDAVITS DISCLOSING DOCUMENTS AND DIRECTIONS FOR DISCLOSURE
[28] As named parties, the plaintiffs in the Sydney action are required to provide disclosure and, in particular, affidavits disclosing documents in accordance with the provisions of Rules 14 and 15. Unless they can convince the Court that this obligation should be limited in some fashion, they must do so. The plaintiffs rely on Civil Procedure Rule 15.07, which provides as follows:
Directions for disclosure
15.07 (1) A judge may give directions for disclosure of documents, and the directions prevail over this Rule 15.
(2) A judge may not give directions limiting disclosure or production of a relevant document, unless the presumption in Rule 14.08, or Rule 14 - Disclosure and Discovery in General, is rebutted.
[29] They also acknowledge that they must rebut the presumption for full disclosure found in Rule 14.08 which provides:
Presumption for full disclosure
14.08 (1) Making full disclosure of relevant documents, electronic information, and other things is presumed to be necessary for justice in a proceeding.
(2) Making full disclosure of documents or electronic information includes taking all reasonable steps to become knowledgeable of what relevant documents or electronic information exist and are in the control of the party, and to preserve the documents and electronic information.
(3) A party who proposes that a judge modify an obligation to make disclosure must rebut the presumption for disclosure by establishing that the modification is necessary to make cost, burden, and delay proportionate to both of the following:
(a) the likely probative value of evidence that may be found or acquired if the obligation is not limited;
(b) the importance of the issues in the proceeding to the parties.
(4) The party who seeks to rebut the presumption must fully disclose the party’s knowledge of what evidence is likely to be found or acquired if the disclosure obligation is not limited.
(5) The presumption for disclosure applies, unless it is rebutted, on a motion under Rule 14.12, Rule 15.07 of Rule 15 - Disclosure of Documents, Rules 16.03 or 16.14 of Rule 16 - Disclosure of Electronic Information, Rule 17.05 of Rule 17 Disclosure of Other Things, or Rule 18.18 of Rule 18 - Discovery.
(6) In an application, a judge who determines whether the presumption has been rebutted must consider the nature of the application, whether it is chosen as a flexible alternative to an action, and its potential for a speedier determination of the issues in dispute, when assessing cost, burden, and delay.
[30] The position of the plaintiffs is summarized in the brief which they filed on the motion where they state:
7. The Common Shareholders repeat and rely on the law and argument as stated in the motion brief filed by the Common Shareholders in support of the Representation Motion. As stated there, there is no probative value in requiring each of the 37 Common Shareholders to swear duplicative affidavits disclosing documents. All of the Common Shareholders have been canvassed several times by Milburn and by counsel to ensure that all relevant documents be produced. As a result, all of the documents in the possession and control of the Common Shareholders have been produced. Any further affidavits disclosing documents will not contain any additional or incremental documents. Rather, these affidavits would be duplicative “mirror-image” affidavits.
8. Further, and as submitted in the Common Shareholders’ brief in the Representation Motion, there is a disproportionate cost, burden, and delay associated with producing these duplicative “mirror-image” affidavits. In the circumstances, it is fair and just to modify the disclosure obligations to dispense with the strict requirements under the Rules.
[31] As previously noted, there is no evidence before me to quantify the additional cost, burden or delay which might arise out of requiring individual affidavits.
[32] The position of the defendants is that it is relevant and important to know what documents each individual investor had (or did not have) at the time of their investment in order to determine their expectations and whether they were reasonable. They say that this is particularly so in light of the relief being claimed, which includes Twenty-Five Million Dollars in damages and Two Million Dollars in punitive damages. The outcome of this litigation will determine the future of Advanced Glazing Technologies Limited, which is very important to all of the stakeholders. A combined disclosure, as proposed by the plaintiffs, does not allow the defendants to know anything about the individual circumstances of each investor.
[33] It is important to note that the plaintiffs are not seeking relief from any obligation to disclose documents. They agree that they are required to do so and claim that, in fact, this has been done and incorporated in Dr. Milburn’s affidavit disclosing documents. Mr. Pendrith’s affidavit states as follows:
23. As noted above, I am advised by Milburn and do verily believe that he had already made several inquiries with the other Common Shareholders to determine whether they had any additional or incremental documents. In addition, I made further inquiries with the Common Shareholders to ensure that no documents had inadvertently been missed. In particular, inquiries were made with respect to correspondence, including emails, that might be relevant. With the exception of two of the Common Shareholders, namely Maja-Lia Thomson and Armin Schabel, none of the Common Shareholders advised me that they have any additional or incremental documents in their power or possession, including communications, such as emails.
[34] Although not expressly stated in the affidavit, one can presume that each of the individual plaintiffs has been advised of their obligation to search for relevant documents and have done so. They should also have reported to counsel the results of those searches. Counsel indicates that they have disclosed those documents, albeit in Dr. Milburn’s affidavit. All that remains for the individual plaintiffs to complete their affidavits disclosing documents is for counsel to prepare these and have them signed. There is no doubt that this will require some administrative work and might necessitate retaining local counsel to meet with the plaintiffs and have the affidavits sworn. Although there was no quantification of these expenses, they seem relatively insignificant compared with the nature and extent of the allegations in the two proceedings. I cannot help but think that if the plaintiffs had devoted the same resources to preparing affidavits disclosing documents as they did to these motions, that process would have been completed by now.
[35] During the hearing, counsel for the defendants confirmed that they do not require duplicate copies of documents which have already been produced in Dr. Milburn’s affidavit. This is a reasonable solution to any concerns with respect to duplication raised by the plaintiffs.
[36] I will, therefore, grant the defendants’ request and order that all of the plaintiffs produce affidavits disclosing documents as required by Civil Procedure Rule 15. I will, however, direct that these affidavits need not attach copies of any documents unless these have not otherwise been disclosed in Dr. Milburn’s affidavit disclosing documents. In the event that any of the defendants wish to examine original copies of any of the documents referred to in these affidavits, they will be entitled to do so.
[37] At the hearing there was some discussion concerning discovery examination of the plaintiffs and whether it was necessary to examine each and every one. These submissions were made primarily in the context of whether there ought to be a representative proceeding. The only specific motion before me dealing with discovery examinations was on behalf of the defendant, GrowthWorks, seeking directions with respect to the location of the examinations. As I previously indicated, this was resolved by consent, with the Cape Breton witnesses to be examined in Sydney, the Ontario plaintiffs in Toronto and the mainland Nova Scotia plaintiffs in Halifax. Any issues with respect to the timing of those examinations will be left to agreement of counsel, failing which Justice McDougall, as case management judge, can issue appropriate directions.
COSTS
[38] At the conclusion of the hearing, I requested that counsel provide me with their positions on costs in writing in advance of the issuance of my decision. I asked them to make their submissions in the event that they should be successful or if they were not. Counsel have done so and, based upon those submissions, I would award costs as follows.
[39] I adopt the principle that the successful parties should receive their costs and that these should be payable forthwith. All of these motions were procedural in nature and the issues raised were dealt with by agreement and my decision. There is no reason to defer payment or leave the issue of liability for payment to the trial judge.
[40] There were extensive briefs filed and argument took most of a day. A full day motion attracts costs of $1000 - $2000 under Tariff C. Since there were multiple motions, I do not think an overall cap of $2000 for costs is reasonable nor should the assessment for each motion be done in isolation. My approach is to balance the complexity and overall time spent with the general range set by the Tariff. There was also some mixed success between the parties and, where applicable, competing costs awards should be set off to arrive at a net figure.
[41] In the Halifax action the plaintiffs by counterclaim made a motion for appointment of Dr. Milburn as their representative but withdrew this during the hearing. The plaintiff, Englefield House, moved for an order requiring the plaintiffs by counterclaim to produce affidavits disclosing documents and at the hearing counsel for those parties agreed to this. As a result, both motions were resolved in favour of Englefield House. The representative appointment motion was resolved in favour of GrowthWorks as well. I award costs of $500 to each party payable forthwith on both of these motions. The motion to strike portions of the Pendrith affidavit was primarily successful and I award $250 each to GrowthWorks and Englefield House. This required less effort and took less time than the other motions and so attracts lower costs.
[42] For Englefield house, this means they will get $1250 ($500 x 2 plus $250) and for GrowthWorks, it will be $750 ($500 plus $250) in the Halifax action.
[43] In the Sydney action, there was the motion by GrowthWorks for directions with respect to location of discoveries which was resolved by agreement when Growthworks accepted the position of the plaintiffs with respect to the Cape Breton parties. In my view, this represents success on the part of the plaintiffs and they should get their costs which I fix at $500.
[44] The primary motion issues in the Sydney action were the representative proceeding and limits on disclosure addressed in this decision. The plaintiffs were unsuccessful on both of these issues. There was significant effort made by all parties in preparing for and participating in these motions. I think a reasonable cost award would be $1000 for each of the responding groups.
[45] The net result of the awards in the Sydney action is that the plaintiffs will pay $1000 to Englefield House and $500 ($1000 less $500) to GrowthWorks. Both of these amounts are payable forthwith.
________________________
Wood, J.
SUPREME COURT OF NOVA SCOTIA
Citation: Milburn v. Growthworks Canadian Fund Ltd., 2013 NSSC 69
Date: 20130220
Docket: Syd No. 296202
Registry: Halifax
Between:
Douglas Milburn, Ian Campbell, John Campbell, Norm
Carmichael, Marilyn Gillis, Gerry Haberer, Michael
Milburn, Thomas Murphy, John Ritter, Armin Schabel,
Frances Smith, Herman Koza, Roy MacNeil, Allan
MacMillan, Michelle Milburn, Milburn Family Trust, A.
Riberio Holdings, Karin Allen, Pat Archer, Mortimer
Brown, Elizabeth Carmichael, Dan Chobotiuk, Sion
Jennings, Elizabeth Lynk, Eleanor Mack, Christopher
Milburn, Colin Noble, Malcolm Noble, Alex Riberio,
Kevin Schabel, Tom Schneider, Hanna Shaheen, Maja-Lisa
Thomson, Jon Woeller, Kausar Mian, Donald Archer and
Norton Campbell
Plaintiffs
v.
GrowthWorks Canadian Fund Ltd., Englefield House No.
4 Inc., Walsingham Fund, Richard Black, Alisha Hirsch,
Scott Pelton, Tom Saunders, John Gardner and Vince
Mifsud
Defendants
Revised Decision: The text of the original decision has been corrected according to the erratum below dated March 7, 2013
Judge: The Honourable Justice Michael J. Wood
Heard: February 14, 2013 (in Chambers), in Halifax, Nova Scotia
Decision: February 20, 2013 (Orally)
Written Release
of Decision: February 27, 2013
Counsel: Colin Pendrith and Theodore Frankel, for the Plaintiffs
John A. Keith and Richard Norman, for the Defendants,
GrowthWorks Canadian Fund Ltd. and Scott Pelton
Andrew Fraser and Chad Horton, for the Defendants,
Englefield House No. 4 Inc., Walsingham Fund, Richard
Black, Alisha Hirsch, John Gardner and Vince Mifsud
Sean Foreman (Watching Brief), for Advanced Glazing Technologies Limited, Advanced Glazing Limited and Protocase Incorporated
Erratum:
Page 2 reads: Sean Foreman (Watching Brief), for Tom Saunders
Page 2 should read: Sean Foreman (Watching Brief), for Advanced Glazing Technologies Limited, Advanced Glazing Limited and Protocase Incorporated