Norton McMullen Consulting Inc. v. Boreham

Norton McMullen Consulting Inc. v. Boreham

The Court dismissed the appeal because the motions judge correctly concluded the dispute was document-driven and fit for summary judgment, properly characterized the Consulting Agreement as a services/investment agreement (not a loan subject to s.347), correctly found no fiduciary duty or agency basis to invalidate the agreements, and correctly concluded Boreham was a party in his personal capacity; there was no basis to remit the matters to trial or to consolidate.

Citation
2016 ONCA 778
Parties
Plaintiff (respondent): Norton McMullen Consulting Inc.; Plaintiff (respondent): Paul Simpson; Defendant (appellant); Plaintiff (appellant) in Related Action: Paul Boreham; Defendant (appellant); Plaintiff (appellant) in Related Action: 401 Energy Ltd.; Defendant (appellant); Plaintiff (appellant) in Related Action: MFOP Wind Power Ltd.; Defendant (appellant): Last Chance Wind Power Corp.; Plaintiff (appellant) in Related Action: Gateway Wind Farms Development Inc.; Defendant (respondent): Norton McMullen & Co. LLP; Defendant (respondent): Rob Gilroy; Intervener: Attorney General of Ontario
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
24 October 2016
Procedural Posture
Civil Appeal / Appeal From Summary Judgment at Superior Court of Justice; Decision at Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Contract Enforceability, Fiduciary Duty, Agency, Usury (criminal Code S.347), Consolidation of Actions, Costs
Source Language
English
Civil Contract Equity and Trusts Procedural Law Summary Judgment Contract Enforceability Fiduciary Duty Agency +3 more

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Parties

Norton McMullen Consulting Inc.

Plaintiff (respondent)

Paul Simpson

Plaintiff (respondent)

Paul Boreham

Defendant (appellant); Plaintiff (appellant) in Related Action

401 Energy Ltd.

Defendant (appellant); Plaintiff (appellant) in Related Action

MFOP Wind Power Ltd.

Defendant (appellant); Plaintiff (appellant) in Related Action

Last Chance Wind Power Corp.

Defendant (appellant)

Gateway Wind Farms Development Inc.

Plaintiff (appellant) in Related Action

Norton McMullen & Co. LLP

Defendant (respondent)

Rob Gilroy

Defendant (respondent)

Attorney General of Ontario

Intervener

Procedural Posture

Civil Appeal / Appeal From Summary Judgment at Superior Court of Justice; Decision at Court of Appeal

Legal Issues

  1. 1 Whether summary judgment was appropriate
  2. 2 Whether the Consulting Agreement and Letter of Credit Agreement were in substance loan agreements contrary to s.347 of the Criminal Code
  3. 3 Whether Simpson owed a fiduciary duty or acted as an agent of Boreham

Ratio Decidendi

The Court dismissed the appeal because the motions judge correctly concluded the dispute was document-driven and fit for summary judgment, properly characterized the Consulting Agreement as a services/investment agreement (not a loan subject to s.347), correctly found no fiduciary duty or agency basis to invalidate the agreements, and correctly concluded Boreham was a party in his personal capacity; there was no basis to remit the matters to trial or to consolidate.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed
  • Summary judgment upheld and motion to consolidate dismissed