2446339 Nova Scotia Ltd. v. AMJ Campbell Inc.

2446339 Nova Scotia Ltd. v. AMJ Campbell Inc. Court Court of Appeal Date 2008-01-29 Citation 2008 NSCA 9 Docket CA 277854 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Fichaud, Joel E. (Honourable Justice) (CA); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - 2446339 Nova Scotia Ltd. v. AMJ Campbell Inc. - 2008 NSCA 9 - 2008-01-29 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: 2446339 Nova Scotia Ltd. v. AMJ Campbell Inc., 2008 NSCA 9 Date: 20080129 Docket: CA 277854 Registry: Halifax Between: 2446339 Nova Scotia Limited, Michael Savoy and Darryl Amirault Appellants v. AMJ Campbell Inc. and Bruce Bowser Respondents Judges: Cromwell, Saunders and Fichaud, JJ.A. Appeal Heard: November 28, 2007, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Fichaud, J.A.; Cromwell and Saunders, JJ.A. concurring. Counsel: Gavin Giles, Q.C. and Robert G. Belliveau, Q.C., for the appellants Scott C. Norton, Q.C., James L. Chipman and Melissa Grant, for the respondents Reasons for judgment: [1] Mr. Savoy was dismissed from his employment with a partnership. Mr. Amirault’s functions with that partnership were terminated. These measures were taken on the initiative of one of the corporate partners, because Messrs. Savoy and Amirault had tried to oust the internal management of that partner. The main issue is whether, given the contractual provisions at play, these measures were justified. 1. Background [2] The respondent AMJ Campbell Inc. (“AMJ”) is a Canadian company with a head office in Mississauga, Ontario. One of its predecessor names was CamVec Corporation (“CamVec”). AMJ is in the business of commercial and household moving, and has branches, partnership and franchise offices throughout Canada. Some operations are independent franchises, as in Halifax-Dartmouth. Others are partnerships between AMJ and a partner, as in Montreal. [3] Mr. Tim Moore bought AMJ in 1977. Under his management AMJ grew from two to forty-two offices across Canada. In 1988 Mr. Moore sold his shares but retained his position as president and CEO. In September 1999 he reduced his direct AMJ activities to become Advisory Chairman. In December 2002 AMJ terminated his position as Advisory Chairman. [4] In 1984, AMJ began a working alliance with Atlas Van Lines (“Atlas”), and AMJ now occupies about 60% of Atlas’ business. Atlas sells the moving services to the public and coordinates routes, invoicing and customer relations. Atlas uses AMJ as the service provider. [5] The appellant Michael Savoy has been involved in the trucking industry since the mid-1970's, beginning as a driver. He worked elsewhere in Canada. Then, in 1992, he moved to Halifax and, with Tim Moore and another individual, purchased the Halifax-Dartmouth franchise of AMJ (“AMJ - Halifax”). The franchisee was 2161238 Nova Scotia Limited (“1238 NS”), owned principally by Messrs. Savoy and Moore or their holding companies. AMJ-Halifax is independent of AMJ. The relations between AMJ and 1238 NS respecting AMJ-Halifax are governed by a franchise agreement between those parties. The franchise agreement’s territory is defined by a radius around the neighbouring cities of Dartmouth and Halifax. [6] The appellant, 2446339 Nova Scotia Limited (“6339 NS") is 85% owned by 2447407 Nova Scotia Limited which, in turn, is owned by two holding companies — MS Holdco and TM Holdco — that are owned respectively by Michael Savoy and Tim Moore. [7] In 1994, Messrs. Savoy and Moore, using 6339 NS as the ownership vehicle, took a 50% interest in AMJ-Montreal’s operation. The other 50% was owned by CamVec, now AMJ. The Montreal operation has been described in this litigation either as the “Montreal Partnership” or “AMJ Montreal”. I will use “AMJ-Montreal”. The ownership and operation of AMJ-Montreal was governed by a partnership agreement between AMJ and 6339 NS, dated April 1, 1994 (“Partnership Agreement”). By a signed addendum in January 2002, the “CamVec” name was changed to AMJ. For clarity, I will replace “CamVec” with “AMJ” when I quote the Partnership Agreement. [8] The Partnership Agreement’s focal provision in this litigation is Article 2.01. Article 2.01(a) appointed Mr. Savoy as Manager of AMJ Montreal and said that Mr. Savoy “shall ... adhere to the business ... standards, procedures and policies established by AMJ and communicated to the Manager from time to time”. Article 2.01(b)(ii) said that “AMJ on behalf of the partnership shall be entitled to terminate the appointment” of Mr. Savoy for any action by Mr. Savoy “which would, if an employer-employee partnership existed between the partnership and the Manager, justify the termination for cause at law ...”. Articles 7.02 and 7.03 said that, upon Mr. Savoy’s termination for cause, the AMJ-Montreal Partnership was dissolved and AMJ was entitled to buy the dissolved partnership assets at depreciated net book value. Later I will elaborate on the relevant provisions of the Partnership Agreement. [9] The respondent Bruce Bowser joined AMJ in 1992, became manager, then executive vice-president and chief operating officer. In 1997 he became president, and later CEO, positions he held during the relevant time in 2002 and 2003. [10] The appellant Darryl Amirault has been involved in the moving industry since the early 1980's. In 1994 he became general manager of AMJ-Halifax, a position he held until 2005. [11] Under Mr. Amirault’s management, AMJ-Halifax was successful. The trial judge found: [20] ... It appears that [Mr. Amirault] was well respected in the industry and had built up many good relationships with other AMJ operators across Canada. The Halifax operation was successful. [12] AMJ-Montreal, however, encountered difficulty. In early 2002, Messrs. Savoy, Moore and Amirault discussed their concerns about management deficiencies at AMJ-Montreal. They decided to change managers. The trial judge said: [21] ... The upshot of these discussions was the offer by Amirault to go to Montreal with the view of reorganizing the office and put it on a more businesslike basis. It was agreed that Amirault would spend a couple of weeks a month as Manager of Montreal while maintaining his position as Managing Partner of the Halifax operation. It was also agreed that Savoy and Moore would assist in the Montreal operation and each of them would “spell” Amirault for a week each month. ... The trial judge found that the notice of Mr. Amirault’s appointment as manager of AMJ-Montreal was circulated to Mr. Bowser of AMJ, and that Mr. Bowser responded by saying “Looks great to me”. Mr. Amirault began his duties as Montreal manager in July 2002. [13] The trial judge found that Mr. Amirault made positive efforts to rehabilitate AMJ Montreal: [26] Apparently Amirault was making some progress in getting AMJ Montreal on a sounder business footing. He said that he had to dismiss a number of employees including the Operations Manager, Gamble. Gamble by all accounts was a rather irascible fellow given to loud talk and profanity. He was a rather divisive influence. Amirault appeared to be achieving a better relationship with the Montreal staff as evidenced by a number of letters which he sent ‑ Ex.2 Tab 112. [14] Nonetheless, by the autumn of 2002, the relationship between Messrs. Moore, Savoy and Amirault, on the one hand, and the AMJ management had deteriorated. Later I will discuss, in more detail, the nature of this deterioration. The trial judge said: [27] Some deterioration in the relationship among the parties at this time is evidenced by a letter written by Moore, in his capacity as advisory Chairman. Moore explained the letter writing by starting the letter with the comment “ I know that you have a distaste for my writing you letters but it seems that it’s the only way that I can formalize my thoughts and have them listened to without disagreement or confrontation.” The letter goes on to complain of “Atlas bashing”, threats to Moore’s brother, dictatorial management style, undemocratic and demeaning management style and finally threats to terminate Moore’s position as Advisory Chairman. Through Bowser the letter was brought to the attention of Wayne McLeod, Chairman of the board of AMJ. It prompted a response from McLeod who wrote to Moore on 16 October which stated in part - Your letter to Bruce is surprising and disappointing. Your role is to provide constructive advice to the President, not to be a disruptive influence. If you have serious particular, supportable issues to raise concerning the senior management, then I would welcome your evidence so that the Board may conduct any required investigation. Bruce, as you are no doubt aware, refutes vigorously your allegations. If you are having direct discussions with franchisees or with Atlas regarding the Company and Bruce, in particular, please cease immediately and respect the role that you are being paid to carry out on behalf of AMJ Campbell Inc. [28] The Moore letter is somewhat similar in tone and content to the Amirault letter of 17 December (Ex. 1 Tab 19) which will be the subject of later comment. ... The “Amirault letter of 17 December” is discussed below (¶ 18). [15] In October AMJ constituted a Standards and Ethics Committee (“SEC”) to address the restive environment within the AMJ organization. The SEC was to work with AMJ’s management to prepare national policy standards and afford a dispute resolution process. Mr. Amirault had promoted the formation of such a committee and accepted the chairmanship of the SEC. [16] The trial judge made the following findings concerning the conduct of Messrs. Amirault and Savoy from October 2002 onward: [30] From this point onward the conduct of Amirault and Savoy is marked with duplicity and deceit. Also, the fine hand of Tim Moore can be sensed in the background. It seems that Amirault, rather than pursue his responsibilities as Chairman of the SEC embarked upon a program to discredit and eventually dislodge Bowser as President and CEO of AMJ. He contacted many Franchisees, including members of the SEC to enlist their support for a "purge" at head office. In this endeavor he was careful not to contact any franchisee or SEC members who were known to be friendly to Bowser. [17] In October 2002 AMJ was a public company whose shares were traded on the stock exchange. In late October 2002, a company named Geosam, controlled by Halifax entrepreneur George Armoyan, made a hostile takeover bid for the outstanding shares of AMJ. The trial judge noted evidence that Messrs. Moore and Savoy had contacts with Mr. Armoyan. The trial judge said: I am satisfied that their involvement with Armoyan provided some substantial information about AMJ which otherwise would not have been available to Armoyan. [18] The trial judge found that, in late autumn of 2002, “Amirault was soliciting support from some of the more disgruntled franchisees to mount a challenge against Bowser and his management style.” The trial judge continued: [32] ... These solicitations culminated with the signing, by some 20 of the AMJ franchisees and partners, of basically identical letters (Ex.1 Tab 19) requesting a meeting with the AMJ Board of Directors “to discuss the present state of our franchise organization”. Amirault said that the letter was basically composed by him and that he vetted it through Moore and Savoy merely to “proof-read”. I cannot accept that rather facile explanation . I am more inclined to the view that Moore and Savoy had substantial input into the preparation and contents of this letter, and those to follow. These letters were all dated December 17, 2002 and were addressed to Wayne McLeod, Chairman of the Board. Clearly this group of letters was a frontal attack by the dissidents against Bowser and his management style. One might say figuratively that some 20 swords were drawn and aimed squarely at Bowser’s back. At this juncture I am reminded of the fact that Amirault is the same person who accepted the Chairmanship of the Standards and Ethics Committee which was charged with the task of trying to internally resolve those contentious matters which were causing concern to the franchisees and partners. One might again suggest that Amirault’s conduct was a real exercise in duplicity. The December 17 letters listed a number of AMJ management practices with which the signators disagreed and referred to the “questionable focus and direction of the present management group of AMJ Campbell Inc.” [19] Mr. Amirault wrote a letter dated December 18, 2002, to the Chairman of the AMJ Board. His letter said: I represent a group in excess of 20 offices, over 50 partners as well as geographically, representing approximately 75% of our national AMJ family. Mr. Amirault’s letter said the group “would not endorse current management in a management takeover bid”, and requested a meeting between his group and the AMJ Board by early January 2003. [20] Meanwhile, AMJ’s management had answered the Geosam takeover bid by arranging an internal share buyout by management supported by franchisees, partners and a financial institution. The AMJ Board of Directors approved this package and rejected the Geosam bid, all disclosed in a press release on December 23, 2002. The internal bid was successful and, by mid-January, 2003, this group effectively had taken AMJ private by purchasing the outstanding shares. [21] After AMJ’s press release, giving notice of the internal bid, Mr. Amirault wrote to the chairman of the AMJ Board to withdraw Mr. Amirault’s December 18 request for a meeting. Mr. Amirault’s letter of December 24, 2002, said: Given the fact that our main concerns revolved around the present management team and that they now represent complete control of AMJ Campbell Inc., our efforts would be futile at best. [22] The trial judge recited what he described as the “ugly” circumstances of the next six weeks: [40] The conspiratorial nature of the conduct of Amirault, as detailed above, prompted Bowser to direct that Amirault not return in any capacity to the Montreal AMJ offices. Bowser made this clear to Savoy who was the Managing Partner at the time. Bowser was acting for "AMJ on behalf of the Partnership". By letter of 6 January 2003 Savoy acknowledged Bowser's stand respecting Amirault and said " You seemed to be adamant that he (Amirault) does not return to the Montreal office, which I disagree with." Later in this letter Savoy stated "The only issue you seemed to bring up is that you feel he does not have faith in the leadership of AMJ Campbell Inc, which you referenced by raising the subject of a letter he signed addressed to Mr. Wayne MacLeod on the issue". When questioned about this comment at trial Bowser responded "This is essentially correct." [41] What follows for the next month are a series of letters and other communications between Savoy and Bowser respecting the status of Amirault. These letters or notes of conversations are set out in Ex.1 ‑ Tabs 24 through 53. The gist of all of this is that Bowser kept insisting that Amirault not return to the Montreal office ‑ and Savoy stating all sorts of reasons why he cannot comply with these requests. My impression of all of this is that Savoy was obfuscating the principal issues and at times being rather "cute" in his responses to Bowser. To use the vernacular, Savoy seemed to be "sandbagging" Bowser. Some examples of this may be illustrative: 1. Tab 25 ‑ Savoy writes ‑ "If you think you have a sound business reason and a legal right to require Darryl to be replaced...". Bowser had been unequivocal in his reasons for demanding Amirault's removal from Montreal and Savoy was aware of this. 2. Tab 29 ‑ Savoy writes ‑"I mentioned (in phone conversation) I saw a problem in releasing anyone without cause". Bowser merely wanted Amirault removed from Montreal and presumably since the latter was an employee of the Halifax franchise he could just return there and carry on his Manager's duties there. Bowser stated ( Tab 40) "I have never requested that you terminate Amirault's employment outright. Whether you continue to employ him in Halifax is up to you. Our concern is his presence in Montreal" It is difficult to envisage any sustainable legal action arising out of that. 3. Tab 50 ‑ A very confrontational letter from Savoy to Bowser denying any knowledge of the reasons for Bowser's insistence in keeping Amirault out of Montreal. I am satisfied that Savoy was clearly aware of these reasons and merely chose to skirt around the substantive and clear issue. 4. Tab 39 ‑ In a letter to Bowser dated 28 January 2003 Savoy said, in part, "Your proposed solution that all I have to do is bring Darryl back to Halifax, rather than terminate him, is not realistic. If he is mismanaging things in Montreal as you allege, why would I want him in Halifax." Another example of Savoy trying to cloud the real issue. Bowser said, and I accept, that he never alleged mismanagement. [42] From this point on the respective positions merely hardened terminating with the debacle at the Montreal office on the weekend of 7 February 2003 (a Friday). On 5 February Bowser, along with the Vice President Frappier arrived at the Montreal office. Bowser circulated a letter to the staff (Ex. 1 Tab 47) in which he stated that Amirault would not be returning to Montreal and that pending resolution of the controversy Jean Martel would assist with the day to day operations of the branch. Martel is the Vice President of InterMove, a company associated with AMJ. Bowser spoke with all of the staff at that time. On 7 February 2003 Amirault arrived at the office in the company of 2 Montreal bailiffs. The Montreal police were called to the scene but departed when they realized that this was a civil matter. On the instructions of Bowser, Martel had the locks changed on all of the building doors. The following morning Martel found that the locks had been changed again and he could not gain access to the offices. On further instructions Martel had the lock re‑keyed for the third time. There was some suggestion of security guards being at the location as well as someone with a camera ‑ although these matters were not firmly established at trial. And even if they had been it would have made little difference in this action. The second lock changing, noted in ¶ 42, was done at Mr. Savoy’s request. [23] AMJ’s counsel delivered a letter dated February 8, 2003, to Mr. Savoy. The letter said that AMJ had grounds to terminate Savoy’s appointment as manager for cause under s. 2.01(b)(ii) of the Partnership Agreement. AMJ demanded that Mr. Savoy instruct Mr. Amirault to vacate the premises of the Montreal partnership immediately, failing which AMJ would terminate Mr. Savoy’s appointment as manager. [24] Mr. Savoy responded with a letter of February 10, 2003 to Mr. Bowser. The letter reiterated that Mr. Amirault would remain as Montreal manager. [25] AMJ’s counsel responded with a letter dated February 10, 2003, to Mr. Savoy. The letter gave notice that AMJ terminated Mr. Savoy’s appointment as manager pursuant to s. 2.01(b)(ii) of the Partnership Agreement and would exercise its right to purchase the fixed assets of the Montreal partnership for the depreciated net book value pursuant to s. 7.03(b) of the Partnership Agreement (quoted below ¶95). AMJ’s position was that Mr. Savoy’s termination for cause dissolved AMJ-Montreal under Article 7.02 of the Partnership Agreement (quoted below ¶96). [26] Mr. Savoy and 6339 NS then sued AMJ and Mr. Bowser, claiming that AMJ had wrongfully terminated Mr. Savoy as manager of AMJ-Montreal and, as a result, wrongfully dissolved the Partnership Agreement, and that Mr. Bowser or AMJ had induced breach of AMJ-Montreal’s employment contract with Mr. Savoy. AMJ counterclaimed against 6339 NS and Savoy for a declaration that AMJ was entitled to purchase the fixed assets of the Montreal partnership for their depreciated net book value as provided in Article 7.03(b) of the Partnership Agreement. Mr. Amirault sued AMJ and Bowser, claiming that Mr. Amirault was wrongfully terminated from his employment with AMJ-Montreal and that Mr. Bowser or AMJ had induced breach of that contract. [27] These actions were tried together in the Nova Scotia Supreme Court, before Justice Peter Richard. The trial occurred over 16 days in November and December of 2006. [28] The trial judge issued a decision dated January 12, 2007 (2007 NSSC 12). The decision dismissed all claims of 6339 NS, Messrs. Savoy and Amirault, and, on the counterclaim, gave AMJ a declaration that AMJ was entitled to purchase the fixed assets of the Montreal partnership for $198,289.00, further to Article 7.03(b) of the Partnership Agreement. The trial judge ordered costs paid separately to AMJ and to Mr. Bowser. [29] The trial judge concluded that the challenge by Messrs. Savoy and Amirault to the management of AMJ, one of the partners in AMJ-Montreal, justified their removal from AMJ-Montreal. Later I will elaborate on the trial judge’s reasons. [30] 6339 NS and Messrs. Savoy and Amirault have appealed to the Court of Appeal. 2. Issues [31] The notice of appeal and statement of issues in the appellants’ factum list 14 grounds of appeal, and two of these contain 8 sub-grounds. There is some overlap. My analysis will consolidate these into the following issues. [32] The appellants’ principal argument is that the trial judge erred in fact and law and misinterpreted the relationships between Amirault and Savoy and Moore, AMJ-Montreal, AMJ-Halifax and AMJ/ Bowser. According to the appellants, had the trial judge properly characterized those relationships, and not erred, the trial judge would have applied different principles, there would be no just cause for the appellants’ dismissals, and the appellants’ lawsuits would have succeeded against AMJ and Bowser. [33] The appellants say that the trial judge gave insufficient reasons for dismissing their actions and for the asset valuation. [34] The appellants dispute Mr. Bowser’s separate award of costs. [35] In argument the appellants raise an issue not identified as a ground in the notice of appeal. They submit that the trial judge acted inappropriately during the trial, giving an appearance of bias. 3. Standard of Review [36] This Court reviews the trial judge’s reasons for correctness respecting extractable issues of law, and for palpable and overriding error respecting both purely factual issues and mixed issues with no extractable legal error: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paras. 8, 10, 19-25, 31-36. A palpable and overriding error of fact is a finding that is clearly wrong and is shown to have affected the result: H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, at paras. 65 and 69. 4. First Issue - Did the Trial Judge err in his findings and analysis of the relationships and just cause? [37] I summarize the appellants’ principal argument as follows. (a) The appellants say that the trial judge characterized Mr. Savoy and Mr. Amirault as employees of AMJ, and therefore subject to direction and sanction by Mr. Bowser on behalf of AMJ. This characterization, say the appellants, underpinned the trial judge’s conclusion that Messrs. Savoy and Amirault, with their challenge to Mr. Bowser’s management, gave AMJ/Bowser just cause to terminate Messrs. Savoy and Amirault. The appellants submit that this underlying characterization was erroneous. Neither Messrs. Savoy nor Amirault was an employee of AMJ. Rather, they were employed by AMJ-Montreal, or AMJ-Halifax, different entities than AMJ. So their responsibilities were to the Montreal Partnership (AMJ-Montreal), not to AMJ. Messrs. Savoy and Amirault, through their efforts and acumen, increased the profitability of AMJ-Montreal. Their challenge to Mr. Bowser’s management of AMJ, for which they were terminated, was done for the purpose of further increasing the profits of AMJ-Montreal. Therefore, under the appellants’ argument, Messrs. Savoy and Amirault did nothing to justify their dismissal by AMJ-Montreal. (b) Messrs. Savoy and Amirault acknowledge their differences with Mr. Bowser’s management of AMJ. They submit that their conduct towards Mr. Bowser and AMJ management should be assessed only by the standards that derive from the Franchise Agreement between AMJ-Halifax and AMJ. They say that, under that Franchise Agreement, a franchisee such as AMJ-Halifax (i.e., 1238 NS) is entitled to challenge inappropriate management practices by the franchisor (AMJ). (c) The appellants dispute the trial judge’s findings on several matters, particularly respecting the connections of Messrs. Savoy and Amirault to Tim Moore and Geosam and the trial judge’s characterization of their conduct with dissenting franchisees in October-December, 2002. (d) Therefore, according to the argument, the trial judge erred by considering the conduct of Messrs. Savoy and Amirault directed at AMJ management/Bowser as just cause for their terminations from AMJ-Montreal. Absent the just cause, the terminations were wrongful. Without just cause to terminate Mr. Savoy, AMJ was not entitled to dissolve AMJ-Montreal under Article 7.02 of the Partnership Agreement. [38] To address this submission, I will review the provisions of the Partnership Agreement for AMJ-Montreal and the trial judge’s findings and conclusions respecting the relationships among the parties and just cause. As I will discuss, given the proper characterizations of the relationships, in my view the trial judge made no appealable error in his conclusions that the claims of 6339 NS, Mr. Savoy and Mr. Amirault should be dismissed. Partnership Agreement [39] The Partnership Agreement was executed as of April 1, 1994. The agreement defines CamVec and 6339 NS as “the ... partners”. As noted earlier, the “CamVec” designation was changed to AMJ-Campbell Inc. by a subsequent agreement. So I will interstitiate “AMJ” for “CamVec” when quoting the Partnership Agreement. The Partnership Agreement uses “Savoy” to designate 6339 NS in the body of that agreement. [40] Article 1.01 says that “the parties agree to operate a partnership”. Article 1.03 states the purpose of the partnership as “operating a household moving business”, defined as the “Business”, and then says in Article 1.03(c): The Business ... shall be carried on in accordance with the standards and business procedures and policies established by CamVec [i.e., AMJ] acting reasonably, from time to time. [41] Article 2.01 states: (a) The manager ("Manager") of the Partnership shall be Mike Savoy. The Manager shall be responsible for the management of the day‑to‑day operation of the Business (in addition to any other duties as the Partners may decide) and shall: ... (ii) adhere to the "Atlas" agency agreements and the standards, business procedures and policies established by CamVec [AMJ] and communicated to the Manager from time to time; . . . [42] Article 2.01(b) defines how Mr. Savoy’s appointment may be terminated: CamVec [AMJ] on behalf of the Partnership shall be entitled to immediately terminate the appointment of Manager, provided that any termination shall be subject to receipt of notice as required by Section 7.01 upon: (i) the failure of the Manager to perform any of the obligations set out in Section 2.01(a) above; (ii) any action by the Manager which would, if an employer-employee relationship existed between the partnership and the Manager, justify the termination for cause at law by the employer of the employee; . . . [43] Article 7.02(f) says: The Partnership shall be immediately dissolved in the event ... (f) of the termination of Mike Savoy’s appointment as Manager pursuant to (i) section 2.01(b)(i) or (ii) hereof; [44] Article 7.03 provides for the buyout procedure following a dissolution of the partnership because of Mr. Savoy’s termination for cause. I will discuss this provision later (¶95 - 97), respecting the trial judge’s conclusions on the valuation of AMJ-Montreal. [45] Article 12.09 states that the law of Ontario governs the rights and liabilities under the Partnership Agreement. Savoy and 6339 NS Action [46] Mr. Savoy acknowledges that he was employed by AMJ-Montreal. Yet he has not sued AMJ-Montreal. So his claim for breach of his employment contract does not join his employer and is not properly framed. Mr. Savoy’s tort claim that Mr. Bowser or AMJ induced AMJ-Montreal to breach his employment contract names the proper defendants. Similarly 6339 NS’ claim that Mr. Savoy was dismissed without cause, and therefore AMJ-Montreal was not properly dissolved under the Partnership Agreement, is properly constituted against AMJ. It is in the context of these two latter causes of action that the issue of just cause for Mr. Savoy’s dismissal arises. [47] For Mr. Savoy, the trial judge referred to the Partnership Agreement and said: [49] The agreement clearly establishes an employer-employee relationship by virtue of Art. 11 - 2..01 (b) (ii) justifying “the termination for cause at law by the employer of the employee...”. I find that Savoy, in consort [sic “concert”] with Amirault and others, engaged in an ill-fated attempt to undermine the management of AMJ. For reasons stated, this attempt failed. In addition Savoy blatantly defied the direct orders of senior management of AMJ in failing to remove Amirault from the Montreal operation. He further played a major role attempting to frustrate the efforts of senior management to restore order to the Montreal operation. In my view, any one of these facts were sufficient to terminate Savoy’s employment for cause. [48] The appellants say that the trial judge treated Mr. Savoy as if he were an employee of AMJ. With respect, I disagree. [49] The trial judge referred to the “employer - employee relationship” under Article 2.01(b)(ii) of the Partnership Agreement. The trial judge did not say that the “employer” was AMJ. Article 2.01(b)(ii) says that “Camvec” (i.e., “AMJ”) was entitled to terminate Savoy’s appointment as manager upon “any action by [Savoy] which would, if an employer-employee relationship existed between the partnership and [Savoy], justify the termination for cause at law by the employer of an employee.” Article 2.01(b)(ii) required the trial judge to assume that Mr. Savoy was employed by AMJ-Montreal (i.e., the Montreal Partnership) and, on that assumption, determine whether Mr. Savoy had acted in a manner that would be just cause to terminate that employment. If the answer was yes, then the provision entitled AMJ “on behalf of the ... partnership” to terminate Mr. Savoy’s appointment. AMJ’s conduct under Article 2.01(b)(ii), and the trial judge’s reference to employment, did not, as the appellants suggest, arrogate to AMJ the status of Mr. Savoy’s “employer”. Neither was the trial judge’s reference to the employment relationship, assumed by Article 2.01(b)(ii), “specious” as submitted in the appellants’ factum. [50] The trial judge did not misunderstand the relationships, or mistakenly assume that AMJ was Mr. Savoy’s employer. It is true that the just cause cited by the trial judge involved conduct by Mr. Amirault directed at AMJ and that AMJ told Mr. Savoy he would be dismissed if Mr. Savoy did not remove Mr. Amirault. That does not mean the trial judge treated AMJ as their employer. AMJ was a 50% partner in AMJ-Montreal. Clearly the conduct of Messrs. Amirault and Savoy, principals of the other partner in AMJ-Montreal, toward AMJ was material to the interests of the Montreal Partnership. The issue is whether that conduct cited by the trial judge constitutes cause for termination under Article 2.01(b)(ii). [51] The trial judge’s three bases for just cause are interrelated. In October - December, 2002, “Savoy, in [concert] with Amirault and others, engaged in an ill-fated attempt to undermine the management of AMJ.” Mr. Savoy then rebuffed AMJ’s attempt to remove Mr. Amirault, as the spearhead of this attack. This led to operational deadlock, featuring alternating lock-changing by AMJ and Mr. Savoy of the Montreal offices, to exclude or include Mr. Amirault’s access. The trial judge’s three bases for Mr. Savoy’s dismissal were rooted in Mr. Savoy’s initial and ongoing support for Mr. Amirault’s conduct. The trial judge described the effect of Mr. Amirault’s conduct: [47] ... I could think of no conduct more destructive to the employer/employer [sic] relationship than that of Amirault in this case. He mounted a direct assault on the management of AMJ and did so in a most duplicitous manner. The events leading up to the letter of 18 December completely destroyed the relationship and provided the defendants, and the Montreal Partnership with solid grounds for dismissal for cause. [52] The appellants challenge the trial judge’s findings, of “duplicity” and the “destructive” effect on the relationship, that Mr. Savoy acted in concert with Amirault “and others” such as Tim Moore, and that the appellants assisted Geosam. The appellants say their challenge to AMJ management, addressed to AMJ’s Board, was open and not duplicitous. They say that an AMJ managerial change would have improved the business operation of AMJ-Montreal, and so was not “destructive”. They say they did not act in concert with Tim Moore or assist Geosam. These submissions challenge the trial judge’s findings or inferences of fact. Before considering whether the facts establish just cause, I will review the evidence to assess whether the trial judge’s findings or inferences resulted from palpable and overriding error. [53] Mr. Amirault testified that Mr. Moore had given him a copy of Mr. Moore’s correspondence to Mr. Bowser, for Mr. Amirault’s use in drafting the December 17 letter from dissenting franchisees to AMJ’s Board. Mr. Moore had written a similar letter to Mr. Bowser in October of 2002. As the trial judge noted (above ¶ 14), Mr. Amirault’s letter of December 17 “is somewhat similar in tone and content” to Mr. Moore’s earlier letter. Mr. Amirault testified that Messrs. Moore and Savoy “critiqued” Mr. Amirault’s letter of December 17. The trial judge found that “Moore and Savoy had substantial input into the preparation and contents” of the December 17 letter. [54] Mr. Amirault testified that he and Mr. Savoy initiated telephone calls and personal meetings with AMJ franchisees and representatives to seek their support for the letter of December 17. Several of these individuals, who were contacted by Messrs. Amirault or Savoy, testified about the tenor of those discussions. [55] Jean Martel was manager of AMJ’s international division. He testified that Messrs. Amirault and Savoy met with him in Montreal in early December, 2002. He said that Mr. Savoy asked Mr. Martel to sign the letter “mainly to have Bruce Bowser fired”, after which “Tim Moore could take over” AMJ. Mr. Martel said that, after the meeting, Mr. Amirault followed up later to ask Mr. Martel if he would sign. [56] Michael Warnick operated AMJ’s franchise in Kitchener-Waterloo. He signed the letter of December 17. He said that he spoke to Messrs. Tim Moore, Savoy and Amirault, and that Mr. Amirault asked him to sign the letter. He said that the letter was to effect a change in AMJ’s management. [57] Jose Lopes was a partner with AMJ in a Mississauga business which supplied AMJ. Mr. Lopes testified that Mr. Savoy telephoned him on December 10, 2002. Mr. Lopes wrote a memo of the conversation. According to Mr. Lopes, Mr. Savoy criticized Mr. Bowser’s spending practices, and wanted to remove Mr. Bowser from AMJ management. Mr. Lopes said that Mr. Savoy supported George Armoyan’s acquisition of AMJ. According to Mr. Lopes, Mr. Savoy suggested that Mr. Tim Moore would return to run the company. [58] John MacAdams was vice-president of sales with AMJ-Montreal. Mr. MacAdams said that, when Mr. Amirault asked him to sign the December 17 letter, Mr. Amirault said “it was going to be - it’s in our better interests to sign this letter, and things are going to change, some kind of mutiny.” Mr. MacAdams said that he was told by Mr. Amirault that the new management would involve Tim Moore. [59] AMJ-Montreal signed one of the December 17 letters to challenge AMJ’s management. Mr. Amirault signed for the Montreal Partnership, as did John MacAdams after Mr. MacAdams had consulted Mr. Savoy. [60] Mr. Moore testified that he disagreed with Mr. Bowser’s management style. He gave examples of this disagreement, similar to those which were recited by Messrs. Amirault and Savoy in their testimony. Mr. Moore said that Mr. Bowser had not sought nor heeded his advice, despite Mr. Moore’s role as advisory chairman. Mr. Moore expressed frustration in his testimony that the AMJ Board of Directors supported Mr. Bowser. Mr. Moore then testified that the Board’s chair, Wayne MacLeod, did not understand the moving business. [61] Mr. Moore testified that he had met George Armoyan in Mr. Armoyan’s office before the Geosam bid. Mr. Moore said that he conveyed to Mr. Armoyan Mr. Moore’s criticism of the incumbent AMJ management. Mr. Moore testified that he told Mr. Armoyan he would consider advisory chairmanship of AMJ, should Mr. Armoyan acquire AMJ. This was close to the time that Messrs. Savoy and Amirault were speaking to Messrs. Martel, Lopes and MacAdams, as noted earlier, about AMJ management change, Mr. Armoyan’s bid and Tim Moore managing AMJ. [62] In early December, AMJ management became aware of Mr. Moore’s connection with Mr. Armoyan. AMJ then terminated Mr. Moore’s position as advisory chairman, with a letter of December 9, 2002. Mr. Savoy confirmed, in cross-examination, that the timing of the December 17 letter from dissenting franchisees to the AMJ Board was connected to AMJ’s termination of Mr. Moore. [63] In late December, AMJ management successfully arranged to purchase the outstanding AMJ shares, which jettisoned the Geosam takeover bid. At that point, Mr. Amirault wrote to AMJ, withdrawing his request for a meeting, because “our efforts would be futile at best.” [64] In October, 2002, Mr. Amirault had accepted the chairmanship of the Standards and Ethics Committee. Mr. Amirault had promoted the establishment of this Committee. The SEC was to be the vehicle to resolve the franchisees’ disenchantment with AMJ. The Committee was mandated to “assist senior management in developing and governing policies and ethics within the organization”. The SEC was to afford a dispute resolution process, by binding arbitration, and establish national standards to govern the relationships. Nothing in the SEC mandate suggested hostile group action to oust existing AMJ management. To the contrary, the SEC was to ameliorate relationships by a process channelled through the existing AMJ management. Mr. Tom Finlay operated an AMJ franchise in 2002 and was a member of the SEC. He testified that the Committee was to be an “ombudsman to arbitrate and adjudicate disputes between each other and we were also given the mandate from senior management that our decisions would be binding on both parties ...”. [65] Immediately after accepting the chairmanship of the SEC, Mr. Amirault began his efforts to oust AMJ management. He contacted franchisees whom he thought would be supportive. He did not disclose his initiative to the SEC, or to individuals whom he felt would support existing management. Mr. Amirault testified that he did not consult Mr. Tom Finlay, an SEC member, respecting Mr. Amirault’s December 17 letter, because Mr. Finlay was close to AMJ management. Mr. Finlay testified that none of the bullet points of contention in the December 17 letter had been raised for discussion at SEC meetings. [66] The signed December 17 letters were not sent to AMJ. Mr. Amirault testified that “not one of us wanted to run head on to Bruce”. Rather, he intended to “hang onto the copies”, then leapfrog management and present the letters in person to AMJ’s Board of Directors at a face to face meeting. [67] In my view, there is ample evidence to support the trial judge’s findings that Mr. Amirault acted with duplicity, that he acted in concert with Mr. Savoy and Mr. Moore, and that their objective was a direct assault on existing AMJ management. There was ample evidence to support the trial judge’s finding that this conduct “completely destroyed the relationship”. I am speaking of the Montreal Partnership relationship between AMJ and 6339 NS, owned by Messrs. Savoy and Moore. [68] The trial judge made no palpable and overriding error of fact, either in his findings or his inferences, with respect to these matters. [69] Do these facts establish just cause for the termination of Mr. Savoy under Article 2.01(b)(ii) of the Partnership Agreement? [70] I agree with the appellants that Mr. Savoy did not owe a duty to AMJ as an employer, because AMJ was not his employer. A partner owes a fiduciary duty to the partnership and to his other partners. 6339 NS owed a duty of good faith to AMJ because AMJ was 6339 NS’ partner in AMJ-Montreal. 6339 NS also owed a duty of good faith to AMJ-Montreal as the partnership. Mr. Savoy was the directing mind of 6339 NS, and the named manager under the Partnership Agreement. So Mr. Savoy’s respect for the integrity of the Montreal Partnership clearly is germane to the standards of his conduct for which just cause for his termination is assessed under Article 2.01(b)(ii). [71] As to the rationale for the partner’s duty, the appellants’ factum adopts the following statement from the decision of Vice-Chancellor Bacon in Helmore v. Smith No. 1 (1887), 35 Ch. D. 436 (C.A.), at p. 444: If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners. Their mutual confidence is the life blood of the concern. It is because they trust one another that they are partners in the first instance; it is because they continue to trust one another that the business goes on. Lindley & Banks on Partnership, 18th ed. (London: Sweet & Maxwell, 2002), ¶ 16-03 quotes this passage as the foundation for the partner’s duty of good faith. [72] Mr. Amirault’s conduct, supported by Mr. Savoy, “completely destroyed the relationship” within AMJ-Montreal. AMJ and 6339 NS were equal partners. Their mutually supportive relationship was essential to the viability of the Montreal Partnership. Absent that trust, AMJ-Montreal witnessed the paralyzing debacle of alternating AMJ/Savoy lockouts in February 2003. As stated in Helmore, “it is because they continue to trust one another that the business goes on.” Clearly Mr. Savoy’s support for this destructive conduct is material to just cause for Mr. Savoy’s dismissal from AMJ-Montreal. [73] Article 2.01(a)(ii) of the Partnership Agreement said that Mr. Savoy, as manager, would “adhere” to the business procedures, policies and standards communicated to him by AMJ. Mr. Savoy in tandem with Mr. Amirault, spurred by their disaffection with AMJ’s business practices, attacked the AMJ management who would formulate and communicate business procedures, policies and standards. [74] Mr. Savoy argues that franchisees are entitled to challenge what they considered to be inappropriate management activity by their franchisor. He says that the challenge to AMJ did not violate AMJ-Halifax’s franchise agreement between 1238 NS and AMJ. The appellants’ factum states that the challenge to AMJ management is “extraneous to the provisions of the Partnership Agreement” for AMJ-Montreal, and should be assessed only under the franchise agreement for AMJ-Halifax. The appellants’ factum says that “all Savoy did at the material times was work to protect his own self interest” and that “franchisees are not expected (or required) to abandon their self-interest as would be the case if they were partners.” [75] The difficulty with this argument is that Mr. Savoy was not just employed by AMJ’s franchise in Halifax. He was also employed by the Montreal Partnership in which AMJ was a partner. Mr. Savoy’s status with the Halifax franchise did not annul his separate responsibility to the Montreal Partnership. [76] The trial judge made no palpable and overriding error of fact, and no error of law in his conclusions that there was just cause for the termination of Mr. Savoy under Article 2.01(b)(ii) of the Partnership Agreement. As there was just cause, (1) there was no breach of contract by AMJ-Montreal and no tort by Mr. Bowser or AMJ, and (2) the Montreal Partnership was properly dissolved under Article 7.02(f). Mr. Amirault’s Action [77] Mr. Amirault’s statement of claim pleaded that he was employed by AMJ-Montreal and that “it was an implied term of his employment that reasonable notice of termination of employment would be given to the Plaintiff.” [78] Before discussing the trial judge’s reasons, I note that Mr. Amirault acknowledges (in fact, he emphasizes) that he was not employed by AMJ or Mr. Bowser, the only defendants. Yet he did not sue AMJ-Montreal, who he says employed him. So Mr. Amirault’s claim for breach of his employment contract is not properly framed. Only his tort claim, that Mr. Bowser or AMJ induced breach of his alleged employment contract with AMJ-Montreal, is properly constituted against defendants named in his pleadings. [79] The trial judge dismissed Mr. Amirault’s action for each of three reasons. [80] First, the trial judge found that Mr. Amirault was not an employee of AMJ-Montreal: Darryl Amirault, as I earlier suggested, remained an employee of the Halifax AMJ operation, although he was working in Montreal with the consent and encouragement of Savoy. His position had none of the normal indicia of employment which could lead me to any other conclusion. Amirault was not in the employ of the plaintiff 2446339 nor of the Montreal franchise of AMJ. Therefore, Amirault cannot sustain an action for unjust dismissal or for breach of the Partnership Agreement as alleged in the Statement of Claim. ... [81] Earlier in his decision, the trial judge said the following about Mr. Amirault’s employment status with the AMJ-Montreal: Much evidence and argument centered around Amirault’s employment status during the short time he was at the Montreal office. Upon taking on this assignment his remuneration was increased by $25,000 per year. There is no employment record for Amirault either at the Montreal office or in Toronto where records were kept. Montreal was never billed for any portion of Amirault’s salary and he did not pay Quebec taxes or other levies which one would associate with employment status. What the records did show was that Amirault was employed by and paid by the Halifax AMJ franchise operation which, as earlier noted ,was owned and operated by Savoy and Moore. After reviewing all of the evidence on this point I feel that the most logical conclusion is that Amirault was in the employ of the Halifax franchise and was on indefinite and part-time loan to AMJ Montreal. ... [82] The evidence supports the trial judge’s findings that Mr. Amirault was not employed by AMJ-Montreal. Mr. Savoy testified that, after Mr. Amirault assumed his Montreal functions, Mr. Amirault retained his position as General Manager of AMJ-Halifax. Mr. Savoy’s direct and cross-examinations, Mr. Amirault’s cross-examination and the exhibits confirm the facts that the trial judge cited to support his conclusion. [83] The trial judge gave a further reason to dismiss Mr. Amirault’s claim: ... In the further alternative, if I had found that Amirault was entitled to damages for unjust dismissal, his brief time in Montreal would have limited his damages to less than two months’ salary. On his return to Halifax AMJ Amirault’s salary was not reduced for several months and then only by $25,000 per year. [84] Again, the evidence supports the trial judge’s finding. Mr. Amirault worked only a few months in Montreal. There is no error in the trial judge’s conclusion about the length of any notice period. Mr. Savoy testified that AMJ-Halifax continued to pay Mr. Amirault his augmented salary for almost three months after his work functions in Montreal were terminated. [85] The appellants have made no substantive and persuasive argument to challenge these bases for the trial judge’s dismissal of Mr. Amirault’s claim. I am satisfied that, with these two rulings, the trial judge made no palpable and overriding error of fact and no error of law. Mr. Amirault was not employed by AMJ-Montreal, but remained an employee of AMJ-Halifax while performing work functions at AMJ-Montreal. Even if he had been wrongfully dismissed, after the termination of his Montreal work functions he suffered no loss of income for the hypothetical period of his reasonable notice. Apart from my conclusions respecting just cause, that I will discuss next, I would dismiss Mr. Amirault’s appeal on these bases. [86] The trial judge’s third reason for dismissing Amirault’s claim is the following: ...Even if I had found that Amirault was an employee of Montreal AMJ and could sustain an action I would, in the alternative, dismiss the action on the grounds that Amirault was dismissed for just cause. I could think of no conduct more destructive to the employer/employer [sic] relationship than that of Amirault in this case. He mounted a direct assault on the management of AMJ and did so in a most duplicitous manner. The events leading up to the letter of 18 December completely destroyed the relationship and provided the defendants, and the Montreal Partnership with solid grounds for dismissal for cause. ... [87] The trial judge said Mr. Amirault’s conduct “completely destroyed the relationship” between the two partners of AMJ-Montreal. I have referred earlier to the evidence supporting that finding, for which the trial judge made no palpable and overriding error. There is no appealable error in his conclusion that this fact would be just cause, had Mr. Amirault been employed by AMJ-Montreal. 5. Second Issue - Sufficiency of Reasons [88] The appellants say that the trial judge’s reasons were insufficient. They cite R. v. Sheppard, [2002] 1 S.C.R. 869, which has been applied in the administrative law context: e.g., Provincial Dental Board of Nova Scotia v. Creager, 2005 NSCA 9, at paras. 101-107 and authorities there cited. Assuming that similar principles apply to reasons for judgment delivered following a civil trial, the trial judge’s reasons are sufficient in this case. [89] The appellants’ factum says “the Appellants concede that insufficiency in a trial judge’s reasoning is not in itself a ground of appeal unless the insufficiency goes to their ability to muster themselves to a meaningful appeal”. [90] Deficiencies in a trial judge’s reasons do not afford a free standing substantive right of appeal in the civil context, any more than in a criminal context. In R. v. Braich, [2002] 1 S.C.R. 903, Justice Binnie, for the Court, said: 31 The general principle affirmed in Sheppard is that “the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required. The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case” (para. 33). The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision. ... [91] As this Court noted in R. v. Abourached, 2007 NSCA 109, at para. 55: [55] It is essential to maintain this perspective ‑ are the reasons sufficient to allow the Court of Appeal meaningfully to consider [the appellant’s] grounds of appeal? The appeal court's reasons analysis should not swerve into a free standing substantive ground of appeal. ... [92] In Braich, Justice Binnie said: 39 ... The trial judge had to weigh those factors against the possibility that their evidence may have been tainted. The trial judge does not have to exhibit the novelist's touch for character delineation and motivation. The respondents launched a massive attack on the credibility of their accusers. The trial judge acknowledged the attack and, giving reasons, rejected it. The appellate court was not precluded by inadequate reasons from discharging its review function. ... 40 The respondents were entitled to a set of reasons that permitted meaningful appellate review of the correctness of the trial judge’s reasons and that is what they got. 41 This is not a case of boilerplate reasons or a generic “one size fits all” judicial disposition as was found in Sheppard, supra, released concurrently. The trial judge’s decision was perfectly intelligible to the respondents, even though they considered it to be erroneous. It was also clear to the British Columbia Court of Appeal. “Inadequate reasons” is not an all‑purpose ground of appeal that can serve to mask what is in fact a disagreement between the trial judge and a majority of members of the appeal court on an issue which the law allocates to the trial court for decision. [93] In this case, unlike Creager and Abourached, the trial judge’s reasons allowed meaningful appellate review. My analysis of the substantive grounds of appeal, discussed earlier, was not blocked by unbridgeable gaps in the trial judge’s reasoning path. Though the appellants remain unpersuaded, it is clear to me what the trial judge said, and why he said it. [94] The appellants submit that the trial judge gave insufficient reasons for his selection of the figure for the buyout of 6339 NS’s interest after the dissolution of the Montreal Partnership. The appellants’ factum positions this argument under “Sufficiency of Reasons”. There is no separate ground in the notice of appeal to challenge the valuation. [95] Article 7.03(b) of the Partnership Agreement says: Upon the occurrence of any event set forth in section 7.02(a)(b), (c) or (f)(i) hereof, the Partnership shall immediately commence to wind up its affairs and the partners or the remaining Partners shall proceed with reasonable promptness to liquidate the business of the Partnership. Immediately upon any such dissolution, Camvec shall be entitled, at its option within 10 days of becoming aware of such a dissolution, to purchase and if such option is exercised the Partnership shall sell the fixed assets of the Partnership for an amount equal to the depreciated net book value of fixed assets as shown by the most recent monthly financial statement of the Partnership. [96] Article 7.02(f)(i) says: The Partnership shall be immediately dissolved in the event ... (f) of the termination of Mike Savoy’s appointment as Manager pursuant to: (i) section 2.01(b)(i) or (ii) hereof; [97] Mr. Savoy’s appointment as manager was terminated for cause, pursuant to s. 2.01(b)(ii). So the trial judge was entitled to apply the formula in Article 7.03(b) - purchase of the fixed assets at “depreciated net book value of fixed assets as shown by the most recent monthly financial statement of the Partnership”. The trial judge used that figure from the financial statement. He did not use the higher number proposed by 6339 NS as the going concern value. [98] The trial judge’s reasons are sufficient to enable appellate review of the number that he selected under Article 7.03(b). 6. Costs to Mr. Bowser [99] The trial judge awarded costs to Mr. Bowser independently of the costs awarded to AMJ. The appellants have challenged Mr. Bowser’s independent award. The appellants’ factum said little to support this ground of appeal, but appellants’ counsel referred to it at the hearing. [100] The two actions brought by Messrs. Savoy and Amirault sued Mr. Bowser separately for a cause of action (inducing breach of contract) different from that pleaded against AMJ. The appellants characterized Mr. Bowser as the villain of the piece. The trial judge had the discretion to consider whether Mr. Bowser should be compensated in costs separately from AMJ. In my view, the trial judge made no error of principle, and none has been shown by the appellants. Neither was there an injustice resulting from his award. [101] I would dismiss this ground of appeal. 7. Bias [102] The appellants raise in argument an issue that was not listed as a ground of appeal. [103] They submit that the trial judge exhibited an appearance of partiality by his “intemperate”, “aggressive”, and “dismissive” comments to appellants’ counsel. Their factum says: The Appellants submit that the conduct of the Learned Trial Justice throughout the trial was such that His Lordship appears to have borne them animus. Angry interjections in the course of questioning, non responsiveness to arguments made over objections and very aggressive tones adopted during trial scheduling were not conducive to any sense by the Appellants that the Learned Trial Justice remained unbiased until all evidence and arguments had been heard. The Appellants submit that they were entitled not only to “justice” from the Learned Trial Judge but also to the “appearance” of that Justice. The Appellants do not allege overt bias against the Learned Trial Judge, His Lordship’s dealings with the Appellants’ counsel from time to time in the course of the trial was such that they were caused to question the objectivity of the assessment of their cases. [104] The appellants’ factum refers in particular to passages at pp. 1826-29, 3590-92, 3594 and 3668-73 of the Appeal Books. [105] Nothing in the record, including the passages highlighted by the appellants, remotely suggests bias or “animus” by the trial judge. The trial judge is supposed to control the trial and channel the parties’ conflict, move the trial efficiently and rule on contested evidence and motions. The exercise of these functions sometimes leads to a tense exchange. Momentary friction is not bias. 8. Conclusion [106] I would dismiss the appeal. [107] This has been a complex appeal with lengthy factums. The appellants’ argument was intensely factual, and necessitated the thorough review of the voluminous transcripts and exhibits. Having regard to these matters, and to the costs awarded by the trial judge, I would order that the appellants pay to the respondents $12,000.00 plus taxable disbursements as costs of the appeal. Fichaud, J.A. Concurred in: Cromwell, J.A. Saunders, J.A.