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O'Connor c. Giancristofaro-Malobabic

2018 QCCS 4099

 

 

 

SUPERIOR COURT

COMMERCIAL DIVISION

 

CANADA

PROVINCE OF QUEBEC DISTRICT OF MONTREAL

No:         500-11-029529-068

DATE:  September 21, 2018

PRESIDING:       THE HONOURABLE MICHEL A. PINSONNAULT, J.S.C.

 

 

 

DANIEL F. O’CONNOR

Plaintiff / Cross-Defendant

 

v.

 

BRANA   GIANCRISTOFARO-MALOBABIC

Defendant

and

9114-8965 QUEBEC INC.

and

MONROI INC.

Defendants / Cross-Plaintiffs

and

4278020 CANADA INC.

Mise en cause

 

 

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

JP1736


 

OVERVIEW

[1] Is Plaintiff Mtre Daniel F. O’Connor (“O’Connor1”) a “complainant” within the purview of section 238 of the Canadian Business Corporation Act (“CBCA”)? As a shareholder or a beneficial owner of shares of MonRoi Inc. (“MonRoi”), has O’Connor been oppressed by corporate Defendants acting at all relevant times through Madam Brana Giancristofaro-Malobabic (“Malobabic”), their sole director, officer and shareholder at the time, by denying him, inter alia, the MonRoi shares to which he claims to be entitled? In the affirmative, is O’Connor entitled to the remedies of section 241 of the CBCA and, if so, what remedies would be appropriate in the circumstances? Should the Court declare the actions or the acts of oppression of the Defendants towards O’Connor as fraudulent? Did the actions of the Defendants since the institution of the present proceedings constitute an abuse of procedure?

 

[2] From the Defendants’ point of view, has O’Connor, as a former lawyer for MonRoi2, breached his professional and ethical obligations towards Defendants estopping him, to all intents and purposes, from any claim to the shares of MonRoi and any of the remedies sought? Was O’Connor’s execution of his legal mandate for MonRoi fraught with gross malpractice and was his conduct as a professional totally inappropriate, thus justifying one of MonRoi’s cross-demands for a full refund of the legal fees paid in 2005-2006? Has O’Connor abused blatantly the judicial process with the present legal proceedings against Defendants to the extent that it gives rise to a declaration of abuse and to a condemnation of in excess of $10M in damages claimed by the corporate Defendants in their cross- demand?

 

[3] On December 18, 2006, Plaintiff O’Connor, together with three former corporate Plaintiffs 6384366 Canada Inc. (“InvestorCo”), Morisco Investments Ltd.(“Morisco”) and Placements BEC S.E.N.C. (“BEC”), instituted the present Motion in Oppression Remedy based on sections 241 and following of the CBCA against the corporate Defendants MonRoi and InnDe, as well as Defendant Malobabic, their sole director and officer at all relevant times and their sole shareholder at that time (the “Motion in Oppression Remedy”).

 

[4] In a nutshell, at the outset, Plaintiffs InvestorCo, Morisco, BEC and O’Connor claimed to have invested collectively in MonRoi over $1,5M4 in consideration of the latter issuing shares in their favour and as such they were beneficial owners of MonRoi shares pursuant to section 238 of the CBCA. As “complainants”, they alleged that they were oppressed by the Defendants acting through Malobabic who, inter alia, steadfastly

 

 

1 The use of last names in the judgment is meant to lighten the text.  It should not be construed as a lack of respect for the individuals concerned.

2 And indirectly as the former lawyer for Malobabic and her wholly-owned holding company, Defendant 9114-8965 Québec Inc. (“InnDe”).

3 Although the initial agreement was entered into between InnDe, MonRoi and Société de Gestion Morisco ltée (“Gestion Morisco”), it was agreed that the latter’s shares into MonRoi would be held by a holding company named 6383726 Canada Inc. (“6383726”) that became Morisco Investments Ltd. (“Morisco”).

4 In money and/or in kind (professional services).


 

refused to issue said shares for some 18 months before the institution of the present legal proceedings. They were therefore seeking certain remedies, the main one being that MonRoi and Malobabic proceed to the issuance of the shares to which they claimed to be entitled. Thus, commenced an unfortunate judicial saga with surrealistic overtones, to say the very least.

 

[5] On August 7, 2009, in one of the many interlocutory judgments rendered in this matter, Mr. Justice Joel Silcoff dismissed Defendants’ Motion to Dismiss the Action of 6384366 Canada Inc. and Subsidiarily to Strike Various Remedies Sought by 6384366 Canada inc. and, with hindsight, Silcoff J. quite appropriately described as follows the situation that prevailed at the time:

[4] The Oppression Remedy  was filed almost three years ago, on or about December 13, 2006. A trial date on the merits has yet to be set. The filing of the Oppression Remedy had the effect of crystallizing an acrimonious dispute previously existing and ongoing between the various corporate entities and their respective principals regarding their respective rights and interests, through various corporations interposed, in certain technology and a business plan involving the use of wireless electronic devices and related software to record, transmit and store moves made by players during chess matches (the “MonRoi System”).

[5] Since the initial filing, the parties have been embroiled in a regrettable judicial saga, evidenced by countless fruitless and unnecessarily protracted interlocutory proceedings filed on behalf of both Plaintiffs and Defendants. Examinations on discovery have generated thousands of pages of transcripts recording the examinations of various witnesses and the hundreds if not perhaps thousands of objections raised during these examinations. Substantial undertakings to produce voluminous exhibits referred to during the examinations were often ignored or, when respected after several demands by counsel for the requesting party, were often incomplete or non-responsive.

[…]

[23] As previously mentioned, none of the parties are free from responsibility in this judicial saga for the acrimony, for the multiplicity of proceedings and for the unfortunate and costly delays in bringing the Oppression Remedy to trial. This saga must come to an end. It cannot be permitted to continue to exhaust the time and energies of the parties, their counsel and of the Court. To this end the Court will dismiss, without prejudice, the Motion to Dismiss/Strike and will refer the entire proceedings to the Chief Justice, pursuant to Article 151.11 C.C.P., with the recommendation that special case management be ordered by him.5

[6]  Unfortunately, some 9 years later, the bitter dispute has not been resolved, except that the judicial hostilities were by then narrowed to a single remaining Plaintiff, O’Connor, but with increased acrimony against him.

 

 

 

 

5 2009 QCCS 3648.


 

[7]   Be that as it may, claiming to have been the object of the same oppressive acts as the other former Plaintiffs, O’Connor found himself in a somewhat different position when compared to the former Plaintiffs, although exacting the same remedies. Contrary to Morisco, InvestorCo and BEC who had all invested money in MonRoi in consideration of shares to be issued in their favor, O’Connor acted initially as the lawyer for InnDe6 dealing with Malobabic, its sole officer, director and shareholder. Malobabic sought O’Connor’s legal advice and assistance in April 2005 in her quest to find rapidly equity investments for a new commercial venture that would ultimately operate as MonRoi on the international chess market. In essence, O’Connor was initially mandated by Malobabic to constitute and organize MonRoiand to seek and obtain equity financing from private investors. As events unfolded, he was also mandated by Malobabic to set up for MonRoi:

 

-          InvestorCo that would serve as a holding company for a consortium of private investors to hold their shares in MonRoi; and

 

-          The Mise en Cause 4278020 Canada Inc. (“InnDe Sub”), a wholly-owned subsidiary of InnDe that would serve to distribute MonRoi shares to its management and to manage as well MonRoi’s future Employee Stock Option Plan (“ESOP”).

 

[8]    O’Connor alleged that as early as in May 2005, upon presenting his first invoice8 for professional services rendered, Malobabic offered to pay for the same with MonRoi shares9. Ultimately, the two agreed that a significant portion of O’Connor’s legal fees be reduced substantially from $36,781.5010 (before taxes) to $10,00011. Subsequently, O’Connor never charged his standard hourly rate for the ensuing legal services that he was called upon to render to MonRoi as he was going to be one of its shareholders directly or through a holding company such as InnDe Sub or InvestorCo. O’Connor also alleged that Malobabic acted subsequently in ways that confirmed their verbal agreement. On October 20, 2005, Malobabic publicly agreed to award to O’Connor 1% of MonRoi’s common shares through InvestorCo, an agreement which she refused to honor subsequently, hence the present recourse by O’Connor as a beneficial owner of said shares.

 

[9]  O’Connor is therefore claiming to be a “complainant” within the purview of section 238 of the CBCA as a beneficial owner of MonRoi shares that should have been issued in his favor.

 

 

 

 

 

6 It is to be noted that neither InnDe nor Malobabic were ever invoiced personally by O’Connor for his legal services. Only MonRoi was invoiced, hence its cross-demand for the refund of the same.

7 MonRoi was constituted on April 21, 2005 through the services of O’Connor.

8 In draft form.

9 The number of shares remaining to be determined subsequently.

10 PDO-060, page 000506.

11 PDO-060, page 000511.


 

[10] During the 38-day trial, the Court was called upon to render an interlocutory judgment on February 12, 201812 on objections to the Defendants’ attempts to introduce into evidence information and documents that, in O’Connor’s opinion, were protected by either the litigation privilege, the solicitor/client privilege and/or the settlement negotiations privilege.

 

[11] It is useful to reproduce hereafter excerpts of that judgment depicting the contextual background of the present proceedings and the reasons explaining the withdrawal of the three corporate Plaintiffs who are no longer parties to the present proceedings:

[1] The Court is presiding the first phase13 of a trial that involved at the outset in December 2006:

- Mtre Daniel F. O’Connor (“O’Connor”) as well as three corporate Plaintiffs: 6384366 Canada Inc. (“638” or “InvestorCo”), Morisco Investments Ltd. (“Morisco”) and Placements BEC S.E.N.C. (“BEC”); and

- Two corporate Defendants: 9114-8965 Québec Inc. (InnDe”) and MonRoi Inc. (“MonRoi”) as well and their sole director, officer and majority shareholder Madam Brana Giancristofaro-Malobabic (“Malobabic”).

Contextual background

[2] The present case is an oppression remedy recourse instituted in December 2006 based on sections 241 and following of the Canadian Business Corporation Act (“CBCA”) in virtue of which the three Corporate Plaintiffs claiming to be oppressed by Defendants who were refusing to issue the shares of MonRoi despite their investments of some $1.4 M into the MonRoi in April and May 2005, were asking as a remedy to, inter alia, receive the shares of MonRoi that they had paid for and to which they were entitled.

[3] As Co-Plaintiff, O’Connor claiming to be a beneficial shareholder of MonRoi, is seeking the same remedies as Corporate Plaintiffs but on a somewhat different basis. In fact, O’Connor is claiming that he is entitled to 1% of MonRoi’s common shares that were to be issued via Mise en cause 4278020 Canada Inc. (“427”) or

 

 

12 2018 QCCS 443; Motion for leave to appeal denied on March 2, 2018 (2018 QCCA 342).

13 By judgment rendered on October 29, 2012 (2012 QCCS 5364), Mr. Justice André Prévost ordered that the present proceedings be split and that the Court proceed firstly with the oppression remedy recourse as follows:

[42] ORDONNE l’adjudication des questions suivantes au cours d’une première étape de l’audition :

-   y a-t-il eu oppression d’actionnaire?

-  dans l’affirmative, à quels remèdes les parties demanderesses ont-elles droit?

-  dans la négative, le recours en oppression est-il abusif?

[43] ORDONNE que dans l’éventualité où le recours en oppression est jugé abusif par le juge au procès, que les questions suivantes fassent l’objet d’une adjudication au cours d’une deuxième étape de l’audition :

- les corporations défenderesses ont-elles droit à des dommages et, dans l’affirmative, à combien?

[the « Prévost Judgment »].


 

via InvestorCo following an agreement entered into with Malobabic  in 2005. O’Connor alleges that as a result of his acceptance of the Malobabic’s request to reduce significantly his professional fees for legal services rendered to Defendants in 2005, he agreed to be also compensated for his services rendered by way of 1% of the common shares of MonRoi. Consequently, having been denied his MonRoi shares like the Corporate Plaintiffs, O’Connor as a “complainant” pursuant to section 238 of the CBCA was also seeking as a remedy, the issuance of the MonRoi shares to which he claims to be entitled.

[4] The Court understands without casting any judgment whatsoever on the merits of Plaintiffs’ allegations in their original “Motion for safeguard, interim and final orders under the shareholders oppression remedy” that some 18 months following their investments in MonRoi, as their attempts to obtain the issuance of their shares from MonRoi proved impossible, they instituted the present proceedings in oppression seeking mainly the issuance of their shares in MonRoi and an order that a unanimous shareholders agreement be entered into between the parties in compliance with the terms and conditions already negotiated and agreed to in May 200514.

[5] Hence started, in December 2006, a judicial saga not to say a fierce judicial war that still festers and remains to be entirely resolved, bearing in mind that this trial only deals with a part of the questions at issue given the Prévost Judgment and that two other cases instituted by Malobabic15 have been suspended pending the outcome of the present case.

[6] The Court understands that in late 2007, Morisco filed a discontinuance from the present proceedings choosing to convert its $536,000 investment in MonRoi into a no-interest bearing long-term loan16. In 2008, the three partners forming BEC agreed to become shareholders of MonRoi together with one the shareholders composing InvestorCo (638), Mr. Werner Moosberger (“Moosberger”), who also became a shareholder of MonRoi for his $50,000 investment after they signed, inter alia, a unanimous shareholder agreement with MonRoi and InnDe17.

 

 

 

 

14 Exhibit PD0-2.

15 The other pending lawsuits are:

-   500-17-050673-097: In 2009, Malobabic instituted this action against O’Connor, InvestorCo and its shareholders personally seeking damages of some 8 M$ in connection with the present proceedings; on August 14, 2009, Mr. Justice André Roy suspended that case until final judgment is rendered in the present case. (2009 QCCS 5817; leave to appeal was denied on October 26, 2009 (2009 QCCA 2433)).

-  500-17-059790-108: In 2010, Malobabic instituted this other action against the Barreau du Québec (and its Fonds d’assurance responsabilité), as well as the law firm of Heenan Blaikie and Mtres Stephan H. Trihey, Stephen G. Schenke and Douglas C. Mitchell seeking damages in the amount of $800,000 as well as other serious personal undefined  and non-quantified  condemnations against  each  of  the defendants arising out of the alleged wrongful professional acts and omissions by the defendants in connection with the present oppression remedy recourse; on July 29, 2011, Mr. Justice Joel Silcoff ordered the suspension of the second action until final judgement is rendered in the present case. (2011 QCCS 4777; leave to appeal was denied on December 15, 2011 (2011 QCCA 2328); leave to appeal to the Supreme Court of Canada was denied on July 12, 2012 (PDO-47)).

16 Exhibit D-47; Re-amended Contestation par. 347 and 349.

17 Exhibit D-46; Re-amended Contestation par. 348 and 350.


 

[7] The other investors (approximately 12) forming InvestorCo (638) remained Co- Plaintiffs via the latter corporation together with O’Connor until late November 2017 at which time they advised the Court that they had reached a settlement out of court with Defendants Malobabic, MonRoi and 9114.

[8] Previously, in September 201718, the Court had denied InvestorCo’s request to substitute their attorneys of record (the law firm of IMK) with O’Connor, who is also a lawyer and who, in any event, would be present at trial in his personal capacity, representing himself as Plaintiff19. The Court denied the substitution due to the fact that if O’Connor were to represent InvestorCo (638) as its attorney of record (ad litem) against Defendants, being his former clients, it could have placed him in a conflict of interest situation.

[9] In a nutshell, InvestorCo sought the substitution of its then lawyers based on the fact that it did not have the necessary financial resources to support the cost of a lawyer involved in the upcoming 41-day trial starting in January  2018. Moreover, they expressed the belief that should they succeed with their legal proceedings, Defendants would not have assets of sufficient value to compensate them as Plaintiffs to any significant degree for their losses resulting from their investments to acquire shares in MonRoi20, let alone cover the legal fees that they would have to incur in the course of the 41-day trial.

[10] The Court was informed that in late November 2017, InvestorCo had settled out of court with Defendants the present proceedings bearing in mind that InvestorCo was also Cross-Defendant with O’Connor with respect to a $10 M Cross-Demand in damages filed by Corporate Defendants in the present proceedings. The settlement also covered InvestorCo and its shareholders who were Defendants in a separate action instituted by Malobabic against O’Connor, InvestorCo and its shareholders in which Malobabic is personally claiming damages of some $8 M against all of them (500-17-050673-097).

[11] According to the settlement agreement filed as Exhibit PDO-80, the settlement occurred without any payment being made on either side and with the understanding that the several investors forming InvestorCo would, to all intents and purposes, cooperate with Defendants if requested in the preparation of the up- coming trial that was to commence on January 8, 2018. In that context, the Court understands that said investors could be called upon to testify at the trial if requested by Defendants and that they agreed to provide to Defendants documentation in anticipation thereof.

[12] This is where some of the objections raised by O’Connor and his lawyer form their basis as Defendants having had access somehow to documents and information as a result of their previous settlements out of court with the three former Corporate Plaintiffs and with former InvestorCo shareholder Moosberger are attempting through such witnesses to introduce information and documents

 

 

18 2017 QCCS 4289.

19 It must be pointed out that for the purposes of the 10 M$ claim made against by MonRoi and InnDe as well as in another action (500-17-050673-097) instituted by Malobabic against him, 638 and most of 638’s shareholders for 8 M$, O’Connor is represented by a lawyer of the Fonds de responsabilité professionnelle du Barreau du Québec.

20 Paragraph 9 of the judgment of September 27, 2017 (2017 QCCS 4289).


 

that contain, in their opinion, information that O’Connor’s lawyer claims to be protected by either the Litigation Privilege, the solicitor/client Privilege and/or the Settlement Privilege in favor of his client, hence the present objections to be ruled upon in that regard.

[13] At this juncture, O’Connor remains the sole Plaintiff left in the present proceedings where he is facing a cross-demand of some $10M from Corporate Defendants and the sole remaining Defendant in the $8M lawsuit previously mentioned instituted by Malobabic that has been suspended by judgment rendered on August 14, 200921 pending final judgment in the present case.

[14] Shortly before the beginning of the trial, O’Connor amended his Application for relief under the shareholder oppression remedy pursuant to sections 241 and following of the CBCA, modifying the remedies sought from seeking the issuance of the MonRoi shares to which he claims, inter alia, to be entitled to a monetary remedy given the current lack of value of the MonRoi shares, in his view.

[15] As previously mentioned, the oppression remedy recourse has been met with a fierce Contestation on the part of the three Defendants, while the Corporate Defendants22 have sought by way of a Cross-Demand various damages against O’Connor23 for some $10 M plus requesting the full refund of all legal fees paid in money to the latter in connection with the legal services that he rendered in 2005 ($30,000).

[16] The joint24 Re-amended Contestation and Cross-Demand of Defendants dated January 23, 2018 is multifaceted, containing some 423 paragraphs with various conclusions seeking monetary condemnation against O’Connor, as well as declarations that the latter acted in conflict of interest and in violation of the Securities Act and that his legal proceedings are abusive pursuant to Articles 51 and following of the Code of Civil Procedure (“CCP”).

[12] Under normal circumstances, this 2006 Motion in Oppression Remedy, being of a commercial nature and given the remedies sought, should have been heard much sooner. Yet, the trial only started some twelve years later on January 8, 2018 with an initial provision of 41 days of hearing as determined by the Associate Chief Justice in February 2017.

 

[13] Following the latest settlement out of court that occurred shortly before the trial between the Defendants and InvestorCo, the last corporate Plaintiff, O’Connor, as sole remaining Plaintiff, re-amended his Motion in Oppression Remedy to reflect the discontinuance filed by InvestorCo and to modify the conclusions accordingly.

 

[14] Given the alleged fact that Malobabic had, to all intents and purposes, suspended the commercial operations of MonRoi after the institution of the present proceedings and

 

 

 

21 2009 QCCS 5817; leave to appeal was denied on October 26, 2009 (2009 QCCA 2433).

22 Malobabic being their sole officer and director.

23 And InvestorCo previously.

24 MonRoi and InnDe are represented by Mtre Richard Friedman of Bell, Rudick & Friedman while Malobabic chose to be self-represented. The Re-amended Contestation was co-signed by Friedman and Malobabic.


 

given that O’Connor’s rights had been unfairly prejudiced by Defendants’ oppressive conduct, O’Connor chose to seek a monetary compensation25 instead of obtaining the issuance of his shares in MonRoi. He suggested that the Court may consider an indemnity based on the value of his unpaid legal fees of $108,280 in that regard, plus $250,000 in damages resulting from Defendants’ abuse of procedure26 and $100,000 as moral damages and for his troubles and inconvenience.

 

[15]   Being the last remaining Plaintiff, O’Connor’s position herein was bitterly contested by Malobabic and by the corporate Defendants who are claiming that his ethical transgressions and serious professional errors (malpractice) made in the course of his legal mandate with MonRoi have caused the “imbroglio” that prevented Morisco, InvestorCo and BEC from ever receiving their shares at the time. The Defendants are also accusing O’Connor of being the instigator of the present proceedings in clear breach of his solicitor/client duty to keep confidential all information obtained during his legal mandate with MonRoi.

 

[16] In their written contestation, Defendants are essentially alleging that O’Connor never had the status of “complainant” pursuant to section 238 of the CBCA since he has never been a shareholder of MonRoi nor has he ever been entitled to such shares as a beneficial owner given that Malobabic never agreed to issue such shares and, in any event, he never made any monetary investment in MonRoi. Moreover, his repeated violations of his professional contractual obligations and ethical duties towards Defendants have estopped him from such a claim. According to them, O’Connor’s lack of status as a “complainant” should suffice to dismiss the present legal proceedings which, as a result thereof, constitute a blatant abuse of procedure on O’Connor’s part giving rise to the $10M damages sought herein by the corporate Defendants.

 

[17] More precisely, the Defendants claim to have suffered extensive damages ensuing from, without limitation:

 

 

 

 

 

 

25 Plaintiff’s Re-re-amended Motion, par. 180:

As a result of the Defendants’ conduct as aforesaid the shares in the Defendant MonRoi are now effectively worthless and, therefore, Plaintiff is justified in claiming, in lieu of shares in MonRoi, the value of the legal services he provided to the Defendants during the period he was retained by Defendants to do so and for which he has not been paid.

26 Plaintiff’s Re-re-amended Motion, par. 182:

The conduct of the Defendants throughout these legal proceedings has been frivolous and vexatious, not only through the unnecessarily complex Defence and Cross-Demand, but also in the nature and number of interlocutory proceedings and complaints filed and appealed, within and outside the present proceedings but integrally related thereto, the whole amounting to an abuse of procedure that justifies the Plaintiff in claiming damages for his loss of time in preparing for, defending against and participating in those said interlocutory and related proceedings including the hearing on the merits of the present proceedings.


 

-          O’Connor’s professional malpractice, conflict of interest, breach of ethics and misrepresentations with regard to Morisco, InvestorCo and BEC and their respective shareholders;

 

-          O’Connor’s blatant abuse of the legal process in launching the present proceedings that are totally unfounded;

 

-          O’Connor preventing corporate Defendants from raising much needed financing and provoking the loss of earnings as a direct result from said groundless legal proceedings without mentioning the damages caused to the personal reputation of Malobabic; and

 

-          O’Connor’s violation of the Securities Act in seeking investments from the various investors without the required prospectus and permits.

 

[18] In other words, the Defendants blame MonRoi’s former lawyer of breaching his duty of loyalty and of confidentiality by instituting the present proceedings with the investors Morisco, InvestorCo and BEC, having even drafted the initial proceedings allegedly using confidential and privileged information and documents that were protected by the solicitor/attorney privilege of MonRoi.

 

[19] In addition to the various compensatory and moral damages claimed as a result of the multiple professional errors and breach (malpractice) made by O’Connor in the execution of his legal mandate, MonRoi is also requesting that the Plaintiff be ordered to refund all legal fees ($30,000) actually paid by MonRoi in 2005-2006 for the legal services rendered at the time.

 

[20] In light of the Prévost Judgment mentioned above, it was understood that no evidence27 would be adduced at this trial with respect to the quantum of the damages sought by corporate Defendants by way of their cross-demand, including those sought under the provisions of articles 51ff.CCP. Those damages are to be determined, if need be, in a second hearing should corporate Defendants satisfy the Court that O’Connor’s Motion in Oppression Remedy is not only ill-founded but abusive as well and that MonRoi and/or InnDe are indeed entitled to the various damages they claim in their cross-demand in that regard.

 

[21] However, the issue of the refund of the legal fees paid to O’Connor can be disposed with the evidence adduced at trial as said claim does not stem directly from the alleged abuse of proceedings.

 

[22] Therefore, save and except for the specific issue of the quantum of the damages sought by corporate Defendants relating to the alleged abuse of process by O’Connor,

 

 

 

 

27 Evidence that involved expert evidence.


 

the evidence adduced over the 38-day trial permits the Court to address and dispose of all the other questions at issue raised by the parties.

 

1.                  PRELIMINARY CONCLUSIONS

[23]      For the reasons that will follow, the Court finds essentially that:

 

-          O’Connor had a valid and binding agreement with Malobabic entitling him to receive 1% of MonRoi common shares; the fact that he would receive those shares via InnDe Sub, InvestorCo or otherwise is of no consequence herein;

 

-          O’Connor, as a beneficial owner of MonRoi shares, was therefore a “complainant” pursuant to section 238 of the CBCA and was entitled to institute the present Motion in Oppression Remedy based on the CBCA;

 

-          At all relevant times, O’Connor28 was subjected to numerous acts of oppression by MonRoi, InnDe and by Malobabic who was acting as their sole director, officer and shareholder29;

 

-          Throughout the execution of his legal mandate with MonRoi and thereafter, including during the present legal proceedings, O’Connor did not commit any professional malpractice, ethical misconduct or other fault that would have engaged his professional liability and have generated any of the damages sought by Defendant and therefore, he was not barred from asserting his rights and recourses in the Motion in Oppression Remedy stemming from his agreement with MonRoi and Malobabic relating his entitlement to 1% of MonRoi common shares; more particularly, O’Connor did not act in any manner that placed him in a conflict of interest situation that constituted a fault on his part and that he did not directly cause the damages sought by the Defendants herein;

 

-          O’Connor’s Motion in Oppression Remedy was not abusive pursuant to the provisions of articles 51ff. CCP or otherwise;

 

-          O’Connor is entitled to remedies under sections 241 and following of the CBCA

that will be more fully discussed hereinafter in the present judgment;

 

-          The Defendants’ conduct and in particular, their contestation of the present proceedings and their cross-demand are ill-founded and abusive under the present circumstances pursuant to the articles 51ff. CCP, thus entitling O’Connor to obtain their dismissal and damages as a result thereof, the whole as it will be more fully discussed hereinafter in the present judgment;

 

 

28 Together with all other beneficial owners of MonRoi shares and former co-Plaintiffs Morisco, InvestorCo and BEC.

29 Malobabic was always the sole shareholder of InnDe as well as with respect to MonRoi, until she issued shares to BEC’s partners and to Werner Moosberger in 2008.


 

-          The Defendants’ actions and more precisely their repeated acts of oppression against the beneficial owners of MonRoi shares who had invested more than

$1.5M30, including O’Connor, were fraudulent.

 

2.                  CONTEXT

[24] This case evolves around an invention or more precisely a technology developed between 2002 and 2005 by Malobabic via InnDe, her personal holding company.

 

[25] Commencing in 2002, Malobabic developed what she referred to as an “energy efficient wireless sensor network technology” that she chose to apply to the management of live chess tournaments. In layman’s terms, Malobabic’s technology enabled chess players participating in tournaments around the world31 to record instantly their every chess move with the assistance of a handheld unit called Personal Chess Manager32 (“PCM”) that sends the data live by Wi-Fi to a Chess Player Terminal33 (“CPT”) which is operated by chess tournament managers or officials. Finally, the data generated by the PCMs is accessible worldwide in real time on the Internet via MonRoi’s World Databank of Chess for users who agree to pay the access fee. In addition to being able to follow online live chess players at world tournaments, users of the MonRoi’s World Databank of Chess can access and search through the extensive data kept on each chess player who had his or her previous games recorded with the MonRoi System.

 

[26] In an Executive Summary remitted to potential investors at two meetings held in April and May 2005, Malobabic depicted her project as follows:

 

The MonRoi system enables chess players to electronically record, store and view their games in electronic chess  managers (ECMs34). ECMs are fully secure proprietary hand-held wireless devices, designed to operate within chess tournament rules, which relay chess moves to the chess tournament manager (CTM), another device. Internet users can follow chess tournaments in real-time by logging into the World Databank of Chess which broadcasts the games live. MonRoi owns the World Databank of Chess. Chess players as a market are easily accessible through established marketing channels: 140 chess federations and a multitude of Internet chess portals. The revenue model for Mon Roi is the following. […]35

 

[27] According to Malobabic, her technology can also be applied to different games, sports and health related applications. The various potential applications were particularly

 

 

 

 

30 With money and in kind (legal services rendered by O’Connor).

31 But not necessarily restricted to tournaments.

32 Instead of jotting every chess move on a piece of paper. The PCM was previously called Electronic Chess Manager.

33 Also invented by Malobabic.

34 The name of Electronic Chess Manager (ECM) was later changed to Personal Chess Manager (PCM).

35 PDO-8.


 

attractive to the venture capitalists that she solicited initially in early 2005, as she had an urgent requirement for some $1.2M to commercialize her PCM by August 2005.

 

[28] With millions of chess players in the world, Malobabic was convinced that her invention (the MonRoi System) had an outstanding commercial potential.

 

[29] O’Connor and the various persons forming part of Morisco, BEC and InvestorCo who invested more than $1.4M into MonRoi were very impressed with Malobabic’s invention and were quickly convinced, based on her representations, of its substantial commercial potential.

 

[30] Unfortunately, this highly promising commercial venture turned into a protracted and acrimonious judicial saga that left everyone involved losing, regardless the outcome of the present litigation.

 

[31] Given the all-out contestation of Defendants containing some 423 paragraphs with more than 680 exhibits (and sub-exhibits) denounced and with less than 300 actually filed at trial, given the extent, the nature, the severity, the gravity and the sheer number of the deeply disturbing allegations and accusations of all kinds made by the Defendants against O’Connor in this unfortunate matter and given O’Connor’s damages sought as a direct result thereof, the Court shall have to examine in great detail the factual evidence adduced during the 38-day trial, trying nevertheless to limit itself to the facts that it deems relevant for the purposes hereof.

 

2.1     The circumstances surrounding the legal mandate awarded to Daniel F.

O’Connor in April 2005 by Malobabic

[32] On February 27, 2005, the Fédération Internationale Des Échecs (World Chess Federation) (“FIDE”) issued a certification in favour of InnDe with respect to Malobabic’s initial prototype of the PCM (previously ECM):

 

Certification of FIDE:

 

Based on the results and chess player feedback of the Category 10 GM / IM chess tournament, held in Montreal (Quebec, Canada) from January 14 to January 21, 2005 this is to confirm that the MonRoi system complies with chess rules and technical specifications and functions in a tournament environment as specified. This is to endorse InnDe's MonRoi patent pending system as FIDE certified. The MonRoi Electronic Chess Manager can be used in tournaments instead of pen and paper recording method (applied in chessboard and scoresheet recording modes).36

 

[the “FIDE Certification”]

 

 

 

 

36 D-112.


 

[33] With her prototype certified, Malobabic needed to start producing its commercial version. She decided that she would present the commercial version of her complete operational MonRoi System (the PCM37 and the CTM38) at an upcoming FIDE world chess tournament to take place in August 2005 in Dresden, Germany.

 

[34]   In April 2005, Malobabic was under significant pressure to find equity investment to finance the commercialisation of her PCM which included its manufacturing as, at the time, increasing InnDe’s bank borrowings was not an option.

 

[35]    Time was of the essence.

 

[36] The FIDE Certification had been preceded with the execution on February 29, 2004 of a Memorandum of Understanding39 between InnDe and FIDE (the “FIDE MOU”) whereby the latter agreed to promote MonRoi’s devices once certified in consideration of the payment of commissions by MonRoi in the future in connection with the sales of the MonRoi devices and of the MonRoi services (World Databank of Chess). On the marketing side, the parties had agreed to the following:

 

11. Marketing: PROMOTER [FIDE] shall market and promote the sale of MonRoi Products to chess players and chess federations in the chess market in accordance with the marketing plan set forth on Exhibit C, at Promoter's expense. PROMOTER shall consult with COMPANY [InnDe/MonRoi] on a regular basis concerning chess federations and client demand for MonRoi Products. PROMOTER agrees to refer to COMPANY any Inquiries that it may receive for sales of MonRol Products. Promoter's promotions and recommendations of MonRoi Products shall be in accordance with COMPANY'S sales materials and technical data timely provided by COMPANY, at its own cost, to PROMOTER. PROMOTER shall provide an on-going marketing support (including, but not limited to, advertising through its web-site, magazines, and chess tournaments) of MonRoi Products.

 

[37] The FIDE MOU was to terminate on January 1, 2015 or upon other events more fully described in the said document. This would explain why Malobabic referred to a 10- year exclusive contract with FIDE.

 

[38] Malobabic estimated at approximately $1.2M the funds required to begin the commercialisation of the MonRoi PCM. As she had excluded increasing InnDe’s line of credit, she favoured seeking funds via equity investments into her future operating company that will become MonRoi in April 2005.

 

[39] Malobabic initiated herself her search for equity funding before O’Connor ever became involved.

 

 

 

37 Personal Chess Manager. 38 Chess Terminal Manager. 39 D-148.


 

[40] Initially, Malobabic approached one or two venture capitalists as well as Messrs. Alain and Yves Morissette, operating under Société de Gestion Morisco Ltée (“Gestion Morisco”). The Court understands that the Morissette brothers were specialized in business start-up projects with the goal to become publicly traded corporations soon after. One of their favourite approach was to proceed by way of a Reverse Takeover (a “RTO”) using a shell company already listed on the Stock Exchange. Their involvement was more or less limited to completing the RTO, recovering their money, collecting a sizable commission and then moving on to other business ventures.

 

[41] By March 2005, Malobabic had already initiated discussions in that respect and had even signed a Memorandum of Understanding with Gestion Morisco40 on March 30, 200541 (the “First Morisco MOU”). The First Morisco MOU only provided for a $536,000 private investment into MonRoi to be disbursed by September 1, 2005, with an optional second equal investment of $500,00042 at Gestion Morisco’s sole discretion. The agreement also provided for the conversion of MonRoi into a public corporation43 via a RTO to take place on the Toronto Stock Exchange no later than July 1, 2006. The First Morisco MOU also provided for a minimum public investment of $2M once MonRoi became public, an aspect that was apparently less appealing to Malobabic who needed some $1.2M right away to begin the commercialisation of her products in time for the August 2005 presentation in Dresden, Germany.

 

[42] Malobabic signed the First Morisco MOU on March 30, 2005 without consulting a lawyer beforehand. However, its clause 7 specified that her consent was conditional upon InnDe proceeding to a satisfactory due diligence of Gestion Morisco and the review and approval of its terms and conditions by InnDe’s legal counsel. Hence, the need to approach a lawyer in the following days after its execution by Malobabic, who incidentally had received a $40,000 cheque from Gestion Morisco to serve as a deposit. Malobabic chose not to cash the $40,000 cheque following O’Connor’s involvement and recommendation.

 

[43] O’Connor is a lawyer, member of the Quebec Bar44, a former officer who spent 33 years in the Canadian military and with a university degree in electrical engineering45. As a lawyer, he specialises in corporate law as well as in intellectual property law and trademarks. Before engaging in a legal career as a solo practitioner, he articled and worked, inter alia, at Stikeman Elliott.

 

 

 

 

 

 

40  Gestion Morisco is not the corporation that will eventually invest into MonRoi. It will be Morisco Investments Ltd. (previously defined as Morisco) who became Plaintiff in the present proceedings.

41 PDO-63, pages 000826 - 000832; D-142.

42 To be committed by Morisco on or before October 1st, 2005.

43 To raise a minimum of $2M, Société Morisco was to arrange the RTO for a significant fee.

44 Having obtain his law degree at McGill University in its joint MBA-Law Program.

45 He was a member of the Order of engineers of Quebec for 15 years.


 

[44] O’Connor was introduced to Malobabic in December 200446 via a former client of his, Mrs. Teresa Furneri (“Furneri”), who had consulted him upon her departure from Nortel. The Court understands that Malobabic also previously worked at Nortel where she met with Furneri who joined her in InnDe in 2004. In need of legal services, Furneri recommended in late 2004 that Malobabic retains O’Connor’s legal services to setup a non-profit charter47 for Montreal’s first World Chess Tournament that was to be held from January 4 to 10, 2005. Malobabic was supposed to contact him in December 2004, but she never did.

 

[45] Furneri only realised in January 2005 that Malobabic had failed to  contact O’Connor about the incorporation of the non-profit organisation. On January 14, 2005, Furneri called O’Connor to apologize and informed him that Malobabic may nevertheless require his legal services in connection with private investors:

[…] Please accept my sincerest apologies for not contacting you earlier to inform you that we had found a private investor. Going forward, I will work with you directly regarding the legal aspects of InnDe and MonRoi.

There are two investors that are interested in investing sums in the company. ln addition, there is a need to trademark the name of the product (MonRoi). These all require your services, but it will only be possible when the investment money comes in. There are also manufacturing and distribution agreements that need to be put in place. At this point, I do not have a precise date for these activities as it is contingent upon venture capital funding.

If you wish, I can send you a very brief email at the beginning of the month to let you know how things are progressing. If this is not necessary, I will simply contact your offices when your legal services are needed (and only when I am sure that Brana Malobabic is ready to proceed). I do not wish to spend your time unwisely.

Once again, please accept my sincerest apologies.48 [Emphasis added]

[46] Evidence revealed that O’Connor was only contacted again by Furneri in early April 2005. A first meeting was held on April 5, 2005 between O’Connor, Malobabic and Furneri at which time O’Connor was introduced to InnDe and to the MonRoi project. They also discussed the steps already taken by Malobabic to seek equity financing for MonRoi. The First Morisco MOU was also discussed. O’Connor informed them that he knew a venture capitalist in Toronto that could possibly be interested in the MonRoi project. Malobabic authorized him to contact that person to verify its potential interest in MonRoi.

 

[47] On the following day, Furneri sent to O’Connor PDF versions of an existing InnDe/MonRoi Executive Summary that was part of MonRoi’s Business Plan and of a

 

 

 

 

46 Without meeting with her at the time.

47 For an entity to be called the MonRoi Foundation (PDO-75). It never materialised.

48 PDO-75.


 

Corporate PowerPoint presentation49. Although Furneri’s laconic email50 did not provide any information or instructions regarding the attached documents, the Court understands that O’Connor was authorized to communicate the same to his contact in Toronto, Mr. David Henderson (“Henderson”) of XPV Capital. O’Connor established a dialogue with Henderson.

 

[48] On April 15, 2005, O’Connor sent his curriculum vitae to Malobabic and Furneri responding to their request51.

 

[49] Despite the execution of the First Morisco MOU, Malobabic was nevertheless exploring other potential investors concurrently. At that time, these investors were all venture capitalists.

 

[50] In light of the goals sought by Malobabic and her pressing financial needs, O’Connor saw several negative aspects or issues52 with the First Morisco MOU that warranted his recommendation to not go ahead with it.

 

[51] O’Connor advised Malobabic that the First Morisco MOU was an unnecessarily complex arrangement53 providing her with only $500,00054 in installments until late August 2005 despite an immediate requirement of $1.2M. Moreover, the second installment of $500,000 was conditional at Gestion Morisco’s sole discretion. Emphasis was placed on going public where larger investments could be secured. O’Connor advised Malobabic against depositing the $40,000 cheque that had been remitted by Gestion Morisco upon the execution of the First Morisco MOU. He felt that cashing the cheque, which served as a good faith deposit, would jeopardise her chances of withdrawing completely from the transaction should she wish to do so as she would have been automatically bound by the terms of the First Morisco MOU without any guarantee that MonRoi would ever get the entire $1M private financing contemplated therein.

 

[52] Malobabic followed O’Connor’s advice and decided not to complete the transaction with Gestion Morisco, which triggered the issuance of a letter of demand dated May 4, 200555 from the latter’s lawyer insisting that she honour the terms and conditions of the First Morisco MOU and cash the $40,000 cheque. Malobabic had to hire Stikeman Elliott to respond to the letter of demand.

 

 

 

49 PDO-71, page 002937-002956 (also PDO-70, pages 002865-002884).

50 Which was copied to Malobabic.

51 D-73.4.

52 PDO-63, page 000646.

53 With an RTO to be triggered by no later than July 1st, 2006.

54 Although the First Morisco MOU provided for an initial payment of $536,000, the sum of $36,000 was to be used by Malobabic to pay the salary of a representative from Société Morisco that would assist her for the following six months ($6,000 per month). Mr. Yves Durand (“Durand”) was part of an arrangement with Société Morisco and was hired as part of the latter’s investment in MonRoi to assist Malobabic with the development of the company and secure a grant from the Quebec government.

55 D-142.


 

[53]   At trial, Malobabic blamed O’Connor for the aborted transaction and testified that he had ill-advised her from the outset. Firstly, he alienated the Morissette brothers and their lawyer Mtre Campbell J. Stuart (“Stuart”) through an incredibly rude behaviour at a meeting and secondly, by telling them that “the deal was off” without even having discussed with her beforehand and getting her instructions. She was furious to the point that she had to stop the meeting and express her dissatisfaction to her lawyer in the corridor.

 

[54]   In light of the unacceptable behaviour of her new lawyer, it is quite astonishing that by the 3rd week of April 2005, Malobabic was still working with O’Connor. She testified that she had previously worked with Mtre Norton H. Segal (“Segal”) of the law firm of Phillips, Friedman Kotler (“PFK”) who was instrumental in setting up InnDe. Despite her alleged multiple difficulties and her profound dissatisfaction with O’Connor’s services and behaviour, Malobabic only contacted Segal in late July 2005 to review the corporate documentation that O’Connor had prepared for MonRoi in anticipation of a closing with the future minority shareholders.

 

[55]   It must be pointed out that no written mandate was ever entered into between any of the Defendants and O’Connor regarding his legal services, in all likelihood because his mandate evolved significantly from the outset and that the legal fees charged were reduced drastically upon presentation of his first invoice in light of the verbal agreement reached with Malobabic that O’Connor would also receive common shares in MonRoi in partial compensation of his legal services rendered until then. In any event, at all relevant times, neither the hourly rate charged by O’Connor to MonRoi for his legal services ($250) nor the number of hours spent was ever contested by Defendants.

 

[56] In fact, the evidence clearly established that after the verbal agreement reached with Malobabic on May 20, 2005, O’Connor either charged for his services at a significantly discounted agreed upon rate or was not charging anything at all for many of the legal services that he actually performed as he considered himself as a future shareholder of MonRoi with the investors that had agreed to invest in MonRoi by then.

 

[57] With the First Morisco MOU dismissed by Malobabic, the latter decided to pursue other avenues involving mainly venture capitalists with the assistance of O’Connor in some instances56. The Court retained from the evidence that the approached venture

 

 

 

56 On April 20, 2005, Henderson of XPV Capital (“XPV”) turned down the opportunity to invest in MonRoi as XPV was not a “market investor”. The fact that Malobabic wanted to limit the licence to be granted to MonRoi to the chess market only was a deal breaker. XPV wanted access to the core technology as well. Earlier that day, Malobabic had pressed Henderson to make a decision “as we are in need of immediate funding to start implementation of our plan to hit the August deadline” (PDO-63, page 000818).

On April 22nd, 2005, a meeting took place between Malobabic with Miralta Capital II Inc. (“Miralta”), another venture capitalist, with the same negative result (PDO-63, page 000822). Miralta also wanted access to InnDe’s core technology not just limited to its application to the chess market.


 

capitalists were very interested in Malobabic’s invention and technology and were agreeable to inject more than a $1M into her commercial venture. However, in all instances, their financing proposals included a condition that was totally unacceptable to Malobabic. The venture capitalists were ready to invest substantial funds into MonRoi provided that it gave them unconditional and total access to Malobabic’s core technology, not only restricted to the chess market. This issue became a major stumbling block preventing any financing with venture capitalists as Malobabic insisted on limiting the transfer of InnDe’s technology to MonRoi to applications in the chess market only. All other potential future applications were off the table.

 

[58] In other words, Malobabic was only agreeable to transfer to MonRoi InnDe’s exclusive rights to her technology limited to chess applications, InnDe retaining the exclusive rights to her technology for any other purposes or applications. Despite the tremendous potential of her invention with respect to the chess market, Malobabic quite understandably refused to compromise her future rights at this point. But, it made it impossible for her to get the financing she needed from these investors.

 

[59] The Court understands that as the venture capitalists wanted the unrestricted benefit of her core technology in case of unexpected difficulties with respect to the proposed chess applications, by the end of April 2005, it became obvious to Malobabic and O’Connor that funding via venture capitalists was no longer a viable solution.

 

[60] As the upcoming presentation in Dresden was becoming critically close, Malobabic was under increasing pressure to find her equity financing.

 

[61] With the First Morisco MOU out of contention and the failed attempts to get equity financing through venture capital investors, Malobabic agreed to explore the option suggested by O’Connor on April 24, 200557 to seek her much needed funding via a consortium of private investors known to him.

 

[62] By then, O’Connor had been involved in most of the presentations made by Malobabic58 and he was able to appreciate the enormous commercial potential in the MonRoi project, especially with the endorsement of FIDE and the prospect that the latter was  to  make  MonRoi  devices  mandatory  at  all  FIDE  world  chess  tournaments.

 

 

 

Shortly thereafter, O’Connor tried to entice Henderson with an improved proposed MOU involving an option granted on a second application to be developed by InnDe in the future, but to no avail. XPV still wanted access to the entire core technology.

On April 24, 2005, in an email sent to Malobabic, O’Connor informed her that XPV was still not interested despite the improved proposal, O’Connor rightfully anticipated that Miralta’s response expected on the following day would likely be negative for the same reasons. This email contains the first indication that O’Connor had offered another option to Malobabic earlier that day namely, to look for a consortium of private investors (PDO-63, page 000879).

57 PDO-63, page 000879.

58 O’Connor was not involved with Malobabic’s discussions with one venture capitalist named J.D. Miller of Toronto.


 

Furthermore, FIDE had already certified MonRoi’s prototype in February 2005. The potential revenues resulting from the sales anticipated by Malobabic of the MonRoi PCMs to millions of chess players participating to FIDE sponsored international chess tournaments were phenomenal for the first five years of MonRoi’s operations.

 

[63] Given the ever-increasing urgency for Malobabic to get the necessary funding, O’Connor’s suggestion was appealing to her as he had already spoken with some friends who appeared interested to invest in MonRoi as shareholders.

 

[64]  Malobabic decided to organise a first meeting with potential investors that was held on April 27, 2005 and given the success of that first meeting, she organized a second meeting on May 11, 2005.

 

[65]  Yet, at trial Malobabic challenged O’Connor’s testimony by stating that there was no sense of urgency on her part to attend the Dresden tournament in August 2005, inviting the Court to conclude that trusting O’Connor who was mainly driven by personal conflict of interest, he induced her to consider such a form of private investment for his personal gain and his own family’s gain. In other words, she did not want to go along that route, especially that O’Connor was violating the Securities Act. The evidence proved that Malobabic’s version of the facts was devoid of any connection with the reality.

 

2.2     The Private Investments made in MonRoi in 2005

[66] The first meeting of prospective private investors was held on April 27, 2005 (the “April 2005 Investors Meeting”). The seven persons invited to the meeting were mainly friends of O’Connor who had solicited their presence with the prospect of a business private investment opportunity.

 

[67]  The organisation of that first meeting necessitated that the proper documentation be in place. Malobabic instructed O’Connor to prepare those documents.

 

2.3     The main documents prepared by O’Connor in connection with Investors Meeting held in April and May 2005 to be remitted to the potential investors

[68] In anticipation of the April  2005 Investors Meeting, O’Connor prepared and submitted to Malobabic’s review and approval, inter alia, a draft “Letter of intent59” (the “Letter of intent”) to be executed by each person wishing to acquire shares of MonRoi that had just been constituted on April 21, 200560. Malobabic had determined that the minimum investment would be in tranches of $50,000 for 1% of MonRoi’s common shares, although she made some exceptions later on with lesser investments ($25,000) for 0.5%.

 

 

 

59 PDO-21, page 000145.

60 Malobabic being its sole director and officer and InnDe its sole shareholder at the time.


 

[69]      The Letter of intent read as follows:

April 27, 2005 To:

9114-8965 Quebec Inc. (InnDe - Innovative Design) 100 boul. Alexis-Nihon, Suite 120

St-Laurent, Quebec H4M2N6

("InnDe")

This is to confirm the undersigned's intention to invest in and subscribe for common equity of MonRoi Inc., directly or indirectly, in the following amount, based on the purchase of 1 % of the common shares of MonRoi for $50,000 or pro rata for any greater or lesser investment:

 

Amount of Investment: $ ~~~~~~~~~~

 

My cheque in the foregoing amount is attached to this Letter of Intent.

 

I understand that my cheque in the foregoing amount shall be held In Trust by MonRoi's counsel, Daniel F. O'Connor, until 10:00 a.m. May 6, 2005 after which time it may be deposited in return for the said investment.

 

I further understand that I may withdraw this Letter of Intent at any time prior to 10:00 a.m. May 6, 2005 by simply advising MonRoi's counsel in writing of my desire to do so by or before 10:00 a.m. May 6, 2005.

 

AND I HAVE SIGNED, this     day of April, 2005,

 

[70] The Letter of intent provided a seven-day reflection or cooling-off period allowing investors to withdraw their commitment prior to their cheques being deposited into O’Connor’s trust account. In other words, the prospective investors had a seven-day period during which they could decide against proceeding with their investments. Under such circumstances, O’Connor was to return the uncashed cheque back to that person. But, nothing prevented any investor from waiving such a condition and from allowing O’Connor to deposit the cheque immediately in his trust account.

 

[71] The investors in attendance at the April 2005 Investors Meeting interested in acquiring shares into MonRoi were called upon to sign a Letter of Intent61 addressed to InnDe62 to confirm their “intention to invest in and subscribe for common equity of MonRoi Inc., directly or indirectly, in the following amount, based on the purchase of 1% of the common shares of MonRoi for $50,000 or pro rata for any greater or lesser investment.” As previously mentioned, the Letter of intent also stipulated the seven-day cooling off

 

 

 

61 P-12 and PDO-28.

62 With respect to the letters signed following the April 27, 2005 meeting, the Letter of Intent used in connection with the May 11, 2005 meeting being addressed to MonRoi with an identical content as to the rest of said letter.


 

period after which O’Connor would be allowed to deposit the cheque into his trust account63.

 

[72]      Aside from the Letter of intent, O’Connor was also asked by Malobabic to prepare the following documents that were remitted to the potential private investors:

 

-          An Investment Fact Sheet entitled “MonRoi Inc. Chess Opportunity Fact Sheet64

(the “Investment Fact Sheet”);

 

-          A document entitled “Executive Summary65” (the “Executive Summary”);

 

-          A document entitled “Proposal” between the private investors and InnDe with Object: Private Equity Investment in the amount of C$1,200,000.0066 (the “Proposal”).

 

[73]      The  Proposal67   set  out  the  essential  terms  and  conditions  surrounding  the acquisition of MonRoi’s shares. It provided, inter alia, that:

 

-          the investors agreed to purchase, directly or indirectly, common shares in MonRoi68;

 

-          MonRoi's business was to encompass the entirety of the world chess market, including ownership and operation of the World Databank of Chess and all related revenue sources;

 

-          the entirety of the offering proceeds was to be used to finance the Business Plan of MonRoi according to the details appearing on the attached MonRoi 18-month Cash Flow Forecast provided to all potential investors;

 

-          InnDe was to assign to MonRoi all of its rights and obligations in the exclusive contract between InnDe and FIDE (the FIDE MOU) as well as its worldwide rights and obligations in certain  patents  it held, and trade-marks related  to chess applications; and

 

 

63 “[…] after which time [the cheque] may be deposited [in O’Connor’s trust account] in return for the said investment.

64 PDO-68, pages 001636-001638. However, for the following May 2005 meeting, the Investment Fact Sheet will be retitled as such without any material modifications therein (PDO-4).

65 PDO-8.

66 PDO-5, PDO-21 and PDO-68, pages 001647-01653.

67 PDO-5 en liasse, the May 11, 2005 version of the Proposal was entitled differently with the addition of the words “Terms Sheet” but its substance was essentially identical.

68 The Proposal did not provide for the investor to choose whether their investment would be made directly or indirectly in MonRoi via a holding company; everyone knew that it was Malobabic’s decision at the time. In any event, no one ever complained of Malobabic’s decision to channel all investments through holding companies until 2008 at which time only some of the very few who had settled the present legal proceedings with Malobabic suddenly blamed O’Connor for not providing them with shares directly in MonRoi; it became O’Connor’s professional fault.


 

-          the execution of a Unanimous Shareholder Agreement (“USA”) as follows:

 

1869. The parties agree to enter into a unanimous shareholder agreement regarding their investments in MonRoi, containing reasonable terms and conditions relating to control and finance matters, as well as the usual terms contained in such an agreement.

 

[74] As it was a crucial component of Defendants’ contestation, the Court finds that the preponderant evidence did not support Malobabic’s multiple assertions at trial that the execution of the USA was from the outset a condition precedent to the issuance of the MonRoi shares, failing which she and MonRoi were under no obligation to issue said shares to the investors.

 

[75]    In fact, the Letter of intent and the Proposal were totally silent in that regard.

 

[76] Furthermore, although the Letter of intent and the Proposal were also silent on the timing of the disbursement of the investments to MonRoi, the Court retained from the evidence that it was understood by all that once the funds were deposited in O’Connor’s trust account, they were to be released immediately to MonRoi who was in dire need of the same. Moreover, since the Proposal and the Executive Summary specified that MonRoi would use the funds to finance its business plan in accordance with the 18-month Cash-Flow Forecast and that the said financial projections ran from April 2005 to September 2006, it necessarily implied that MonRoi needed those funds immediately. The use of those funds was never linked to the prior execution of the USA by the investors.

 

[77] In fact, the only complaints made in connection with O’Connor’s alleged breach caused by his premature and unauthorized disbursement of the funds to MonRoi without the USA having been duly executed by all, was surprisingly invoked by Malobabic at a much later date who suddenly blamed O’Connor for remitting the money to her (MonRoi) too quickly. Yet, O’Connor was simply acting at all times on her clear instructions for their immediate release in favour of MonRoi. There is no doubt that Malobabic was in a hurry to have access to the investments regardless of the prior execution of the USA.

 

[78] Besides Malobabic, similar complaints only sprouted after Mssrs Elio Tuccinardi (“Tuccinardi”) and Werner Moosberger (“Moosberger”) became direct shareholders of MonRoi following their settlement out of court with Malobabic in 2008. In so doing, they were contradicting their own prior position stated in the Motion in Oppression Remedy. Those isolated complaints which constituted a complete reversal of position, aimed at echoing Malobabic’s blames of O’Connor, were made suddenly some three years after the fact. In the eyes of the Court, these complaints appeared to have been done, in all appearances, at the instigation of Malobabic.

 

 

 

 

 

 

69 Clause #19 in the May 2005 version with the same wording nevertheless.


 

[79] At the investors meetings of April and May 2005, the potential investors in attendance were also provided with the above-mentioned Executive Summary70 bearing the headings or logos of InnDe and of MonRoi with a particular emphasis on the title “MonRoi Business Opportunity” reflecting substantial revenues because of FIDE:

[…] The revenue model for MonRoi is the following.

The targeted size of the global market for Electronic Chess Managers is CAD $1.5 billion (5 million chess players x CAD $300/device). Real-time Tournament Viewing Services are estimated at CAD $10M (2 million x $5 per tournament) in annual recurring revenue. In addition, there are advertising and sponsorship revenues possible for every game broadcast. Annual access subscriptions to the World Databank of Chess to view previous games can bring in an estimated additional CAD $45M (3 million x $15) in recurring annual revenues. Finally, instructional chess modules that can be loaded into the ECM represent a fourth potential source of revenues.

InnDe has locked up the primary market through a global patent and by closing an exclusive 10-year contract with FIDE*** - the World Chess Organization (recognized by the International Olympic Committee). FIDE is actively working with InnDe promoting the MonRoi system. InnDe will provide an exclusive license of the relevant technology to MonRoi. (*** FIDE (World Chess Federation) 140 countries members, www.fide.com)

[Emphasis added]

 

[80] It was clear that O’Connor was part of MonRoi’s management as under the heading “Management” was written:

 

Mr. Daniel F. O'Connor, B. Eng, LLB, BCL, MBA, Corporate Counsel. Dan is an electrical engineer and a lawyer trained in both the common law and the civil law. He has 5 years experience in the corporate department of the large national law firm Stikeman, Elliott and a further 10 years experience in intellectual property and technology law.

 

[81]    Under the heading “Company Highlights” was also written:

A 10-year exclusive contract with the World Chess Federation to supply MonRoi to chess players globally71.

[…]

140 worldwide sales and distribution channels are secured - FIDE's chess federations.

 

 

 

70 PDO-8 en liasse, these two Executive Summary were extracted by O’Connor from MonRoi’s Business Plan that had been remitted to him by Malobabic in anticipation of the upcoming meetings with the potential investors. They had been modified by O’Connor with cosmetic changes only, with Malobabic’s approval.

71 This being the second mention of the FIDE 10-year exclusive contract in the said document.


 

There exists a substantial market potential with mid-term exponential growth to drive the company to achieve a billion dollars in revenues. More than CAD $900k is already invested in the company.

[Emphasis added]

 

[82] Followed in the Executive Summary a table revealing, among others, forecasted revenues stemming from forecasted sales for the ECM72  alone of $150,000 in 2005,

$5,850,000 in 200673, $54,450,000 in 2007, $141,000,000 in 2008 and $420,000,000 in 200974.

 

[83]   Finally, under the heading “Use of Proceeds”, it was clear that the funds were to be used in accordance with the Cash-Flow Forecast75 also annexed to the Executive Summary:

 

Upon receipt of funding, MonRoi will execute its commercialization plan according to the cash flow table annexed to this summary.

 

[Emphasis added]

 

[84] Needless to say, that the Cash-Flow Forecasts mentioned above that covered the 18-month period commencing in April 2005 and ending in September 200676 (the “Cash- Flow projections”) were a crucial component of Malobabic’s presentation to the investors who could easily appreciate how their money was to be used by MonRoi over that initial period to generate phenomenal revenues.

 

[85] The Court cannot help but notice that the Cash-Flow Forecasts also reflected MonRoi’s intention to hire additional management personnel, including a Chief Operating Officer (“COO”) and, more importantly, reflected the above-mentioned substantial anticipated revenues for those 18 months77. The investors who agreed to acquire MonRoi shares were well justified to rely on the same and expect Malobabic to abide by those projections as they clearly formed part of their reasonable expectations, in the Court’s opinion.

 

[86] In the Motion in Oppression Remedy, all four initial Plaintiffs as minority shareholders blamed Malobabic for her failure to use their funds in accordance with her own representations in the Cash-Flow Forecasts.

 

[87] On April 16, 2005, in order to assist O’Connor in the preparation of the Investment Fact  Sheet  and  of  the  Executive  Summary,  Malobabic  sent  him  a  PowerPoint

 

 

72 Now known as the PCM.

73 As of May 2006, Malobabic had reported to the investors that 50 to 60 PCMs had been sold.

74 Also in MonRoi’s Business Plan (PDO-63, page 000714).

75 PDO-7.

76 PDO-7.

77 According to the cash flow projections, the investors were represented that MonRoi anticipated revenues of $3,750,000 to be generated until September 2006 from the sales of its PCM at $300 per unit.


 

presentation78 which she commented more fully in her email79, leaving O’Connor to understand that the world chess market was huge with at least 350 million chess players and MonRoi was aiming to target some 5 million of the 7.5 million registered chess players with FIDE and related chess organisations.

 

[88] On the same day, Malobabic also sent him by email80 InnDe’s 50-page Business Plan81 for the “MonRoi spin-off” (the “Business Plan”). The Business Plan contained an executive summary that will serve as a template for the Executive Summary adapted by O’Connor with the approval of Malobabic.

 

[89] Incidentally, MonRoi’s Business Plan remitted by Malobabic to O’Connor already revealed forecasted sales for the PCM alone totalling $572,445,00082 between 2005 and 2009 and sold subscriptions to gain online access to the World Databank of Chess of

$27,765,00083.84

 

[90] Based on the foregoing, Malobabic represented that MonRoi stood to generate sales of some $600M during its first five years of operations. O’Connor was certainly justified to believe that such outstanding results stemmed mainly from the agreement already negotiated with FIDE that gave MonRoi a 10-year exclusivity to sell the MonRoi system at upcoming world chess tournaments sponsored by FIDE who was expected to mandate the use of the MonRoi system at those tournaments once the commercial version was accepted. Otherwise, those projected sales and revenues made no sense.

 

[91] The Court is convinced that the sales projections tied in with the FIDE MOU was Malobabic’s strongest and most compelling argument to entice the potential investors to invest without any delay in MonRoi. Only if it had been true…

 

2.4     The Private Equity Investors

[92] The evidence revealed that other than InnDe, controlled exclusively by Malobabic, MonRoi had three minority shareholders via holding companies, each comprised of consortiums of private investors/shareholders. The reasons for proceeding via holding companies instead of direct investments in MonRoi was to meet one of Malobabic’s requirements that will be explained shortly hereafter.

 

 

 

78 The PowerPoint presentation already indicated that O’Connor was part of the MonRoi team (PDO-63, page 000672). MonRoi’s Business Plan at the time also reflected the same (PDO-63, page 000712) and revealed, inter alia, that “all employees will participate in profit sharing”. Finally, O’Connor’s CV was part of the Business Plan (PDO-63, page 000732).

79 PDO-63, pages 000664-000665.

80 PDO-63, 000685.

81 PDO-63, pages 000686-000735.

82 $150,000 in 2005; $5,850,000 in 2006, $54,450,000 in 2007, $141,000,000 in 2008 and $420,000,000 in

2009.

83 $0 in 2005; $90,000 in 2006, $1,575,000 in 2007, $3,600,000 in 2008 and $22,500,000 in 2009.

84 PDO-63, page 000714.


 

[93] Be that as it may, the private investors approached during the April and May 2005 meetings became shareholders of InvestorCo who held 13.5% of MonRoi Shares, followed by Morisco with 12% shares, BEC with 4% shares and O’Connor with 1% shares. The latter’s shares were to be held initially via the Mise en cause InnDe Sub, but Malobabic changed her mind later on and channelled them through InvestorCo.

 

2.5     The investment of 6384366 Canada Inc. (InvestorCo) ($625,000)

[94] O’Connor testified that as attractive as the MonRoi investment opportunity may have been at the time, a new corporation that was not yet operational may appear to be a risky investment. People are often reluctant to be the first ones to go on the dance floor. O’Connor suggested that Malobabic offer a sort of bonus or enticement to the first investors who would commit unconditionally their money into MonRoi up to an aggregate of $200,000. As the cost of acquiring 1% of MonRoi shares was $50,000, Malobabic agreed to grant an additional 0.5% of MonRoi shares per tranches of $50,000 to the first investors committing unconditionally up to a maximum $200,000. O’Connor and Malobabic figured that it would be easier for other potential investors attending the first meeting to proceed with their own commitment if they knew that others had already committed unconditionally some $200,000 in the chess business venture.

 

[95] Upon early discussions, Mr. Bill Wilson, a friend of O’Connor, agreed to invest immediately and unconditionally $100,000 into MonRoi for 3%85 of shares via the Bill Wilson Family Trust86 (the “Wilson Family Trust”).

 

[96] At the time, O’Connor’s seven relatively young children87 had recently inherited. O’Connor and his wife thought that it could be an excellent opportunity for them to invest their money in what seemed to be a very promising new business opportunity. However, the children could only invest collectively a total amount of $95,000. But, if they were part of the first $200,000 to invest unconditionally into MonRoi, the seven children (the “O’Connor Family88”) could stand to receive 3% of MonRoi’s shares to be issued instead of only 2%. However, they were $5,000 short and O’Connor, as legal counsel to MonRoi, did not want to join their group and invest himself the missing $5,000 into his own client.

 

[97] O’Connor discussed this situation with Malobabic who proposed that MonRoi advance the missing $5,000 to the O’Connor Family via the legal fees to be paid for his services. O’Connor was instructed by Malobabic to increase his legal fees by $5,000. Upon payment by MonRoi, he would then remit the $5,000 to the O’Connor Family who would in turn pay it back to MonRoi as part of its $100,000 collective investment.

 

 

 

 

85 Including the 1% bonus.

86 The Wilson Family Trust will become a shareholder of InvestorCo.

87 Several were minors.

88  The O’Connor Family invested their collective $100,000 in MonRoi via a holding company, 6384331 Canada Inc., who in turn held shares in InvestorCo (6384366 Canada Inc.)


 

[98] The presentation at the April 2005 Investors Meeting was made mainly by Malobabic, who knew from the outset that she already had $200,000 committed unconditionally in MonRoi by the Wilson Family Trust and by the O’Connor Family.

 

[99] Setting aside the representatives of the O’Connor Family and of the Wilson Family trust, six other potential investors, invited mainly by O’Connor, attended the presentation. The meeting was a total success with 100% of the participants agreeing to invest in MonRoi.

 

[100] At trial, Malobabic offered a quite different perspective of what happened at the time. She testified that she was very uneasy with O’Connor’s suggestion to hold such meetings with pure strangers who somewhat intimidated her. Moreover, because of the number of people in attendance, she was prevented from being able to speak with each of them to better get acquainted. During her testimony, Malobabic failed to disclose that there were only six “new” people to meet as she had already accepted the unconditional investments of the O’Connor Family and the Wilson Family Trust.

 

[101] In any event, by the end of April 28th, 2005, O’Connor had received Letters of intent89 executed by each of the investors in attendance, representing either unconditional or contingent investments totalling $475,00090. The Court understands that within the seven-day cooling off period, only one person withdrew its commitment for $50,000 leaving the total investments gathered at that first meeting at $425,000.

 

[102] Given Malobabic’s astonishing comment, if she really was so uneasy and even adverse to O’Connor’s suggestion to proceed with said private investments with perfect strangers to her, why did she proceed to hold a second meeting with even more strangers?

 

[103] O’Connor offered a different version of the facts. The response and results of the first meeting were so encouraging that they prompted Malobabic, who needed money very quickly, to hold a second meeting on May 11, 2005 (the “May 2005 Investors Meeting”) with additional potential investors being either friends of O’Connor or friends of the existing investors (friends of friends).

 

[104] After the second meeting on May 11th, 2005, Malobabic had managed to collect private investments totalling $625,000 that was soon brought up to $1,160,000 with the upcoming $536,000 investment that Gestion Morisco committed on the same day, as Malobabic was pursuing concurrently further discussions with Gestion Morisco without O’Connor’s direct involvement.

 

[105]  As previously mentioned, the persons who agreed to invest the aforementioned

$625,000 into MonRoi were going to be regrouped into the holding company that was to be incorporated by O’Connor, as per Malobabic’s instructions. O’Connor incorporated

 

 

89 PDO-28.

90 PDO-68, page 001634.


 

InvestorCo with the full knowledge and consent of Malobabic, who did not want individuals to be direct shareholders of MonRoi as she claimed not knowing them personally.

 

[106] Initially, Malobabic had expressed her fear to O’Connor that these people (friends of O’Connor) could come into MonRoi with undesirable baggage that could tarnish the image of MonRoi. She was afraid of the reputation of the potential shareholders which justified, in her view, that criminal background checks be carried-out before proceeding further. O’Connor felt that these persons, whom he knew, were good and honorable people that were his friends or well-known acquaintances of his who had money to invest. Such a requirement imposed by Malobabic placed them in a quandary. Malobabic desperately needed funds quickly, therefore investors were expected to believe and trust her abilities and her commercial project and commit quickly. Yet, telling these prospective investors that they would be the object of criminal background checks made at her specific request would be counterproductive and could very well be interpreted by them as an insult. The Court understands that Malobabic dropped that requirement with the solution proposed by O’Connor that all investors would distance themselves from MonRoi by acquiring shares in a holding company that would hold shares in MonRoi, a sort of buffer layer. The Court also understands that Malobabic, having accepted to proceed accordingly, instructed O’Connor with the additional mandate of constituting and organizing InvestorCo for the benefit of MonRoi and of those investors having committed and paid $625,000.

 

[107] Yet, at trial, Malobabic also blamed O’Connor profusely for getting involved with InvestorCo, as he voluntarily placed himself in a blatant situation of conflict of interest by accepting to act as InvestorCo’s initial corporate legal counsel while being MonRoi’s lawyer at the same time. Even worse, the presence of the O’Connor Family as one of InvestorCo’s shareholders placed her lawyer in an even greater conflict of interest situation that she deeply deplored. Those blames will prove groundless as they averred to be based on mere suspicions and her sworn testimony that she never instructed O’Connor to setup InvestorCo.

 

[108] Based on the overwhelming evidence, there is no doubt in the mind of the Court that Malobabic not only agreed, but demanded that the investors, who invested some

$625,000 into MonRoi following the April and May 2005 meetings, would channel their investments through a holding company that ultimately became InvestorCo, and that the latter was set up by O’Connor upon Malobabic’s specific instructions.

 

[109] This explains why the same approach was applied subsequently for the investors behind Morisco and BEC.


 

2.6     The investment of Morisco Investments Ltd. ($536,000) and the circumstances surrounding the execution of the Morisco Financial Agreement and of the Morisco Agreement in May 2005

[110] Concurrently and despite the exchange of letters of demand sent between their respective lawyers in connection with the First Morisco MOU, Malobabic resumed her discussions with the Morissette brothers (Gestion Morisco) that led to a new financial agreement entered into between MonRoi and InnDe on May 11, 200591, involving an investment of $536,00092 to acquire 12% of MonRoi shares (the “Morisco Financial Agreement”). The terms and conditions to implement the Morisco Financial Agreement were evidenced in a subsequent letter dated May 25th, 200593, on the letterhead of Campbell Stuart, Gestion Morisco’s attorney, that were agreed to by Malobabic on that day. Upon agreeing to said terms and conditions, Gestion Morisco made an initial payment of $250,000 directly to MonRoi.

 

[111] The Morisco Financial Agreement specified that Gestion Morisco’s shares into MonRoi would be held by a holding company named 6383726 Canada Inc. (“6383726”) that will become Morisco Investments Ltd. (“Morisco”). Morisco was one of the original Plaintiffs in the present instance and henceforth, the Court shall only refer to Morisco.

 

[112] According to O’Connor, the Morisco Financial Agreement of May 11, 2005 was essentially negotiated by Malobabic without his involvement. Malobabic felt that she was a better negotiator. Moreover, Malobabic blamed O’Connor severely to be the cause of all her earlier problems with Morisco with his alleged unacceptable rude and bellicose behaviour that alienated repeatedly the Morissette brothers and their lawyer at the meetings to which he had participated. O’Connor’s unacceptable behaviour had forced her to brush with litigation lawyers for the first time in her life in connection with the First Morisco MOU. Malobabic had to retain the services of Stikeman Elliott94 to respond to a letter of demand sent by Gestion Morisco via their lawyer Stuart. The Court understands that Malobabic nevertheless chose to remain in contact with the Morissette brothers at all relevant times and, invoking earlier frictions between the lawyers (O’Connor and Stuart), she proceeded herself with the final negotiations leading to the execution of the Morisco Financial Agreement. O’Connor was nevertheless involved in the preparation of the subsequent letter of implementation of the Morisco Financial Agreement in which the essential terms and conditions of the USA to be executed by InnDe, Morisco and InvestorCo were set out.

 

 

 

 

 

91 PDO-1, May 11, 2005 being the day of the second meeting with additional investors that will join InvestorCo.

92 Morisco’s investment was in reality $500,000 for 12% of MonRoi’s shares, as the additional $36,000 served to cover the remuneration of Yves Durand (one of Morisco’s investors) who was to be hired by MonRoi for a period of at least 6 months at $6,000 per month (PDO-63, page 000829; also PDO-1, page 5).

93 PDO-2.

94 At O’Connor’s suggestion.


 

[113] Of particular interest, the Morisco Financial Agreement entered into directly with Malobabic already contained a provision that the parties were to enter into a Unanimous Shareholder Agreement (USA) (Clause 2595).

 

[114] The May 25th, 2005 letter of implementation96 (the “Morisco Implementation Agreement”) stipulated, inter alia, the following:

 

MonRoi and Morisco further agree:

 

a. to enter into a unanimous shareholders' agreement (the "USA") along with all other shareholders of MonRoi. The USA shall remove all powers of the Board of Directors permitted by law and place these powers into the hands of the shareholders. The USA shall specify that certain decisions by or on behalf of MonRoi will require the special majority consent of the shareholders of MonRoi, which decisions are specified Schedule A to this letter. The special majority referred to shall require the approval of InnDe plus one of 6384366 Canada Inc. ("InvestorCo") and Holdco [6383726 that will become Morisco]. All other decisions requiring shareholder approval shall be made by shareholders holding share representing a simple majority of voting shares.

 

[115] Schedule A of the Morisco Implementation Agreement provided that a special majority97 would be required should MonRoi wish to issue any new shares to anyone other than the shares destined to be issued in favour of management and under an employee stock option plan (“ESOP”) with a maximum of 15% of MonRoi’s participating shares.

 

[116] Despite such restrictions, the proposed USA would nevertheless leave significant control to InnDe (Malobabic), the majority shareholder of MonRoi who had to be involved in all decisions requiring a special majority.

 

[117] At trial, Malobabic accused O’Connor of forcing her to sign the Morisco Implementation Agreement with only an hour to read it, understand it and sign it as she had not been given any prior explanations by her lawyer who was not even present. As Malobabic’s testimony in that respect will turn out to be false, it is necessary to examine further how the events really unfolded.

 

[118] Notwithstanding the fact that the Morisco Implementation Agreement was on Stuart’s law firm letterhead, evidence showed that the text was initially drafted by O’Connor with the approval of Malobabic, who at trial also blamed him for having acted

 

 

 

95 25. The parties agree to enter into a unanimous shareholder agreement, to be prepared by Daniel O'Connor, in consultation with Colby, Monet, regarding the shareholders respective investments in MonRoi, along with all other shareholders, containing reasonable terms and conditions relating to control and finance matters, as well as the usual terms contained in such an agreement.

96 PDO-2.

97 Requiring the approval of InnDe plus one of Morisco or InvestorCo. (At the time, BEC was not yet in the picture).


 

in clear violation of her interests and of those of MonRoi in accepting that a USA be entered into with all shareholders. She also blamed O’Connor for not advising her properly on the USA, as had she been duly informed, she would have never accepted to be bound by such a legal document that, in any event, originated from O’Connor without any prior consultation with her.

 

[119] But, the concept of entering into a USA was not novel. It had been introduced in all the memorandums of understanding previously drafted by O’Connor with the venture capitalists. The Court shall address this particular issue later in the present judgment.

 

[120] Back to the Morisco Implementation Agreement and bearing in mind that the Morisco Financial Agreement was signed on May 11th, on May 18, 2005, a week before signing the Morisco Implementation Agreement, O’Connor sent an email to Malobabic in which he asked her to review and approve various documents that were to form part of the May 25th Morisco Implementation Agreement, including the draft letter of implementation with its Schedules A, B and C dealing with MonRoi’s shares and the USA to be entered into98.

[121] A few minutes later, Malobabic responded that she could not review “these important suggestions”, being held-up in meetings throughout the day. She nevertheless added immediately that she disagreed with Schedule A dealing, inter alia, with restrictions on the issuance of MonRoi shares in the future requiring a special majority of the shareholders, but without offering to O’Connor any particulars or reasons for her disagreement99. Clearly, Malobabic had taken cognizance of the said document in order to make such a comment.

 

[122] Concurrently, O’Connor sent the same documents to Stuart, Gestion Morisco’s lawyer, with the caveat that they were subject to the review and the approval of MonRoi (Malobabic) with whom he was going to speak momentarily. An hour later, Stuart returned the same documents with a few suggestions for modifications adding “I think we are close!100

 

[123] A few days later, on May 23rd, 2005, O’Connor wrote to Stuart (with cc to Malobabic) and sent him the same documents that will eventually be signed by her on May 25th, 2005, informing Stuart that the documents had been revised by Malobabic with the following mention:

 

Following my meeting today with Brana, we have revised a number of the closing documents for Morisco's investment and added a Release101.

 

 

 

 

98 PDO-68, pages 001658-001662 and 001663-001671.

99 PDO-68, page 001671.

100 PDO-68, page 001672.

101 PDO-68, page 001676. The Release was linked to their previous dispute related to the First Morisco MOU.


 

[124] The Court noted that the May 23rd version of Schedule A to which Malobabic objected on May 18th was obviously modified with her approval based on the aforesaid comment.

 

[125] In fact, O’Connor’s invoice #2532 dated May 23, 2005 revealed that he not only worked on this matter for 5.50 hours as he rendered the following services on that date, but that he had also met with Malobabic to discuss those documents with her:

 

23/05/2005 DFO (5:51 - NO CHARGE)

 

Review documents for closing Morisco investment. Prepare Release for Morisco. Prepare and revise all other closing documents. Meet with BM to discuss Morisco documents and general management matters. Revise documents and send to BM for approval. Draft cover letter to CS [Campbell Stuart].

 

[Emphasis added]

 

[126] Yet, in an email sent on July 31, 2005 that contained the minutes of a meeting held on the previous day with representatives of BEC and InvestorCo, Malobabic wrote, among other things, the following in connection with the Morisco Implementation Agreement executed by her on May 25, 2005102:

 

5. Pre-agreement with Morisco was asked of me to be approved within one hour by Dan [O’Connor] and Campbell [Stuart], without me understanding any terms and special verbiage. Those pre-agreements clearly failed to protect MonRoi.

 

[127] With all due respect, the overwhelming preponderant evidence leads the Court to conclude that in all likelihood, Malobabic’s statement was false.

 

[128] Moreover, as O’Connor could not attend the May 25th meeting where Malobabic was to execute the Morisco Implementation Agreement, it had been agreed with Stuart that the Morisco Implementation Agreement, once signed by Malobabic, would be held in escrow pending her approval of the few additional modifications made earlier that day at Stuart’s request103.

 

 

 

 

 

 

102 PDO-68, page 002406; incidentally, this email was not shared by Malobabic with O’Connor even though he attended that meeting.

103 PDO-68, page 001694. Excerpt of Fax message by O’Connor to Stuart on May 25, 2005:

[…] Please note that this signed agreement is still subject to Brana's review of all documentation for this transaction, in particular the new "addendum" with the changes I [Stuart] requested in my previous letter, which revised version I have not yet seen. I understand that all other documents remain unchanged from what I sent you yesterday. Brana is also still waiting to get the CVs of the other

two Holdco [Morisco] Investors. I don't think she will proceed until she has seen these and is satisfied in this regard. Accordingly, this signed agreement is to be held in escrow pending Brana's satisfaction with the foregoing.


 

[129] As the Morisco Implementation Agreement was later released by Stuart without any further modifications, the Court can only conclude that Malobabic must have been in agreement with all of its provisions.

 

[130] We are far from the situation depicted by Malobabic that she had been literally ambushed by her own lawyer and forced to execute the Morisco Implementation Agreement without any advice and any time to read and understand the same.

 

[131] By May 11, 2005, Malobabic had attained her private financing goal of $1.1 M with the consortium of investors forming InvestorCo and Morisco.

 

[132] O’Connor had commenced the process of preparing the somewhat voluminous documentation for the closing as per Malobabic’s instructions. However, as the overall transaction entailed potential tax consequences that had to be identified beforehand and given the fact that Malobabic insisted that the transaction be tax free for MonRoi, InnDe and herself, O’Connor, with her consent, retained the services of Stikeman Elliott to advise her, InnDe and MonRoi on the various tax issues that the participants to the proposed transaction may face. As this exercise was likely to have an impact on MonRoi’s future corporate structure, it caused a delay in the completion of the transaction and the closing.

 

[133] The arrival of BEC in mid-June 2005 caused even more delays as Malobabic had decided that the entire documentation be executed by all concerned at once. There would be only one closing.

 

2.7     The investment of Placements BEC ($275,000)

[134] By mid-June 2005, an acquaintance of Malobabic, Mr. Joseph Tuccinardi, indicated to Malobabic that three potential investors, including his brother Mr. Elio Tuccinardi (“Tuccinardi”), were interested to invest some $500,000 into MonRoi104. Malobabic was agreeable to the additional investors joining the MonRoi shareholders despite that their addition would cause further delays to the closing.

 

[135] On June 20, 2005, Malobabic, who had been instrumental in finding BEC, instructed O’Connor to manage the negotiations with Tuccinardi, representing BEC’s three investors and mentioned InnDe Sub that will become a major issue for her105:

Hi Dan,

Thanks for coordinating this. You are excellent in handling investor negotiations.

 

 

 

104 PDO-68, page 1758.

105 The Court shall deal more specifically of the InnDe Sub issue as Malobabic said under oath at trial and even wrote in an affidavit that she never instructed O’Connor to incorporate InnDe Sub nor to indicate in the public records with the Registraire des entreprises du Québec that InnDe was its shareholder and that she was its sole director, statements that were completely  contradicted by  the compelling documentary evidence.


 

$70k for 1 %106 would be the bottom line.

It is easy to issue them more shares, as stock options are issued.

Common or preferred shares are voting in InnDe Sub, and this should be equity, unless I am mistaken.

Please, invite them all three tomorrow. Ask for their phones & e-mails. I left a message with Elio.

Brana

[Emphasis added]

 

[136] As can be seen above, Malobabic was contemplating offering MonRoi shares to BEC via InnDe Sub. She decided that BEC’s initial 3% shares107 would come from the 15% pool of MonRoi shares that she had attributed to InnDe Sub108.

[137] By June 29th, 2005, following a recommendation of Stikeman Elliott, Malobabic decided that for tax considerations, the BEC’s partners would not invest in MonRoi through InnDe Sub, but rather via their own holding company that will become BEC.

 

[138] Ultimately after several weeks of negotiations, on July 13, 2005, Malobabic accepted to grant 4% of MonRoi shares to BEC’s three partners for their investment of

$275,000109. Clearly, by June 2005, Malobabic had increased the cost to acquire shares of MonRoi as it was no longer $50,000 for 1% as BEC was to receive 4% with its $275,000 investment.

 

[139] O’Connor indicated that this unexpected additional injection of funds was welcome by Malobabic despite having a direct impact (a delay) on the closing already scheduled with the other investors. The fact that BEC was a partnership and not a corporation was an additional source of concern given that its three partners refused initially to convert into a corporation destined to become another company holding shares in MonRoi. It complicated matters even further, forcing O’Connor and Malobabic to seek further tax advice from Stikeman Elliott. Ultimately, the partners incorporated BEC.

 

[140] Later, after their settlement out of court that took place in 2008, the three partners of BEC became direct shareholders in MonRoi.

 

2.8     The transfer of the investors’ funds from O’Connor’s trust account to MonRoi

[141] O’Connor testified that all prospective investors in attendance at the April-May 2005 meetings understood that once their cheques were deposited in his trust account,

 

 

106 Instead of $50,000 per 1% for the previous investors.

107 In the end, BEC will close with 4% of MonRoi’s shares with a $275,000 investment.

108 4278020 Canada Inc. remained a subsidiary of InnDe with 11.5% of the MonRoi shares.

109 PDO-3.


 

the funds would be used immediately by MonRoi. In the representations that she made to the prospective investors, Malobabic stressed the fact that there was an urgency to have access to and use their investments as she needed the same to initiate the production110 of the MonRoi PCMs in time for a formal presentation scheduled to be made at a FIDE meeting in Dresden, Germany in August 2005.

 

[142] In fact, no one ever complained about the immediate transfer of the funds to MonRoi, except Malobabic111who, in her 2008 ethical complaint against O’Connor filed with the Syndic du Barreau du Québec, accused her former lawyer of unauthorized and illicit use of his trust funds by releasing some $850,000 to MonRoi without ensuring beforehand that the investors had received their shares (shares that she was duty bound to issue). Malobabic omitted to mention that such transfers had been made upon her own specific instructions, without mentioning at her insistence.

 

[143] The evidence revealed that all funds112 collected by O’Connor were duly deposited into his trust account and remitted entirely to MonRoi in accordance with the specific instructions of Malobabic, who was in a hurry to get those funds under her own control. Issuing the shares to these investors was the least of her concerns nor was the prior execution of the USA. Again, other than Moosberger at a much later date, not a single investor ever complained that O’Connor had misused their investments by releasing them to MonRoi before the issuance of their shares. At the time, they still trusted that Malobabic would honor her fiduciary duties and obligations towards them.

 

[144] Save and except for to the investments of Morisco and of Mr. Michael Stearns113 (“Stearns”) that were made directly to the order of MonRoi, all other investments of InvestorCo and of BEC were deposited in O’Connor’s trust account and treated as instructed by Malobabic.

 

[145] By April 29, 2005, aside from Stearns’ cheque, O’Connor had deposited into his trust account $262,500114 representing a portion of the $425,000 investments committed at the April 27, 2005 meeting. Some of the cheques could not be deposited before the expiry of the seven-day cooling off period.

 

 

 

 

110 Including the fabrication of the moulds necessary to make the casing of the handheld devices.

111 And Werner Moosberger, one of the investors who was previously part of InvestorCo, who suddenly echoed the same complaint made by Malobabic after settling out of court with her in 2008 and becoming direct shareholder of MonRoi. In fact, in all likelihood, Malobabic caused Moosberger to file against O’Connor a similar ethical complaint with the Bureau du Syndic du Barreau du Québec after her own complaint had been dismissed as there was no evidence of any wrong doing by O’Connor with his trust account and the funds entrusted to him by the investors.

112 Other than the $50,000 investment by Michael Stearns made by mistake directly to MonRoi.

113 Stearns nevertheless became a shareholder of InvestorCo despite that his $50,000 investment cheque had been made to the order of MonRoi instead of Daniel F. O’Connor in trust. The Court also understands that Malobabic decided to cash the cheque directly in MonRoi’s account to avoid further delays.

114 PDO-66, page 000936.


 

[146] Yet, on May 1, 2005, Malobabic was already anxious to take possession of the investments as more fully appears from the following email that she sent to O’Connor:

Subject: CIBC meeting

Dan,

I have scheduled a meeting with Genevieve Noel from CIBC Cathcart branch tomorrow at 3pm. We need to deposit checks ($400k or $450k)- please, ask Sean115 [Sprackett]. Let me know if I need to approve some documents. It would be important to deposit one certified check of $50k116 for InnDe (MonRoi), so I could purchase few PCs and rent the office for engineers this week.

You are welcome to join me at the CIBC meeting, or you could pass by the office any time before 1pm (as your time permits).

Tomorrow evening I am presenting an employment offer to Nia. Please, let's have a plan for management to have shares in trust with you (so if they leave the company quickly they would loose(sic) those shares).

Regarding our meeting on Wednesday 7:30pm. I did not have time to plan it (and invite people that I know). Maybe we could have the second investor meeting (if we do not close with Morisco) in 2 weeks timeframe, so I could focus on hiring people and getting the commercialization plan on its way.

Best regards, Brana.117 [Emphasis added]

[147] One crucial element missing from this email is the so-called notion that the investments were conditional to investors agreeing and executing a USA prior to any shares being issued by MonRoi, which, in the Court’s opinion based on the preponderant evidence, was an argument developed by Malobabic a posteriori to justify her refusal to issue the shares to the investors who were clearly minority shareholders of MonRoi. In fact, O’Connor testified that during the investment process that spanned from April 27th until mid-July 2005, Malobabic never mentioned the necessity that the USA be executed before any shares are issued.

 

[148]  On May 5, 2005, in execution of Malobabic’s instructions, O’Connor sent a $50,000

cheque118 and made a wire transfer of $195,170119 to MonRoi.

 

 

115 Sean Sprackett was one of the investors who had committed $50,000 but with the seven-day cooling off period. Obviously, Malobabic wanted O’Connor to cash his cheque quickly before the expiry of the cooling-off period, something that O’Connor refused to do. O’Connor’s wait was warranted as on May 5th, Sprackett decided to withdraw his commitment due to a conflict of interest situation (PDO-68, page 001654). Ultimately, on June 14, 2005, Sprackett’s wife made the same $50,000 investment through her own accounting firm. (PDO-64, pages 000923-000924; PDO-66, page 000940).

116 The cheque made by Michael Stearns to the order of MonRoi.

117 PDO-31.

118 PDO-66, page 000959.

119 $170 representing the wire transfer fees charged by O’Connor’s bank.


 

[149]  On May 10, 2005, O’Connor made another wire transfer to MonRoi in the amount of $100,170120.

 

[150] Subsequently, O’Connor sent trust cheques to Malobabic of $175,000121 on May 26, 2005, $50,000122 on June 15, 2005123 and $5,000124 on July 26, 2005 for a grand total of $575,000 representing the entire investments made by InvestorCo ($625,000), except for Stearns investment of $50,000 that was made erroneously directly to MonRoi.

 

[151] As to Morisco’s investment, on May 18, 2005, a $250,000125 bank draft from Morisco payable directly to MonRoi126 was accepted by Malobabic who deposited the same in MonRoi’s bank account without waiting for the USA to be executed. O’Connor was not involved.

 

[152] As to BEC’s investment, on July 14, 2005, O’Connor deposited $275,000 into his trust account127 by way of three bank drafts in the amount of $91,666.67(6) each from BEC’s three partners128.

 

[153]  On the same day, Malobabic gave instructions to O’Connor to transfer BEC’s

$275,000 by certified cheque to the order of MonRoi:

Dan, Please: […]

2) Make a certified check for MonRoi on behalf of BEC from your trust, as approved yesterday. Did we receive Bernard129's check? […]

Thanks,

Brana.130

 

[154] On July 15, 2005, in compliance with Malobabic’s instructions, O’Connor sent a trust cheque in the amount of $275,000 to MonRoi131. Clearly, Malobabic never told

 

 

120 $170 representing the wire transfer fees charged by O’Connor’s bank.

121 PDO-66, page 000959.

122 PDO-66, 000961.

123 PDO-66, page 000942.

124 PDO-66, page 000942. The Court points out that this remittance of $5,000 was made by O’Connor to complete the $100,000 investment of the O’Connor Family after receiving the same from MonRoi following instructions of Malobabic to increase his initial invoice for legal fees by the like amount since the O’Connor children only disposed of $95.000.

125 Being a first installment of Morisco’s $536,000 investment.

126 PDO-2, page 000013.

127 PDO-66, page 000941.

128 PDO-64, pages 000926-000928.

129 One of BEC’s partners.

130 PDO-67, page 001400.

131 PDO-66, page 000962.


 

O’Connor to suspend the transfer of BEC’s funds until the USA was executed by all and until BEC had received its shares in MonRoi.

 

[155] The transfer of BEC’s $275,000 was done at Malobabic’s instructions; she was then perfectly aware that there were growing issues and ongoing discussions in connection with the USA and the Asset Transfer Agreement (the “ATA”) and that further discussions were anticipate. If the USA to be signed by all minority shareholders was a condition precedent to issuing MonRoi shares, otherwise she was under no obligation to issue their shares, the Court wonders why Malobabic’s insisted that O’Conner transfer so quickly BEC’s investment of $275,000?

 

[156] With all due respect, under such circumstances and based on Malobabic’s own version of the facts, the Court can only reasonably conclude that she had to be aware that under such circumstances, she was misappropriating BEC’s funds in a fraudulent manner, knowing full well that without an executed USA, she was under no legal obligations to issue BEC’s expected shares, a fact that had never been disclosed at the time to Tuccinardi, the representative of BEC’s three partners.

 

[157] If that was really the situation, it was Malobabic’s fiduciary duty as sole director of MonRoi to delay the transfer of the BEC funds to MonRoi until that pre-condition was materialized.

 

[158] With all due respect, the Court cannot find a more blatant example of oppressive behaviour and of bad faith, bearing in mind that it was not even O’Connor who found these three investors (BEC).

 

[159] In closing that chapter, O’Connor testified that with respect to BEC’s $275,000 investment, Malobabic did not use those funds for the operations of MonRoi, as contemplated in the Cash-Flow Forecasts remitted to the investors at the outset. Instead, she transferred the entire sum to InnDe to reimburse the research and development expenses incurred earlier in the development of her technology.

 

[160] The closing agenda may have provided for such a transfer of funds to occur in the context of the ATA, but it did not allow Malobabic to personally appropriate those funds via InnDe without completing beforehand the closing and issuing the shares to the minority shareholders.

 

2.9     The funds used by the O’Connor Family and the missing $5,000

[161] Another issue was raised by Malobabic during the latter part of the trial when it was disclosed that O’Connor had deposited into his own trust account the proceeds of a

$75,000 cheque132 giving rise to her argument that, unbeknownst to her and as further evidence of a flagrant conflict of interest situation, O’Connor had surreptitiously invested

 

 

132 Evidenced with a cheque dated April 29, 2005 of $75,000 drawn on the joint account held by O’Connor and his wife Barbara and made to the order of Daniel F. O’Connor in trust (D-70.3, page 7).


 

$75,000 of his personal funds into InvestorCo via the O’Connor Family $100,000 investment. Malobabic saw in it a smoking gun that supported her argument that from the outset, O’Connor never acted in the best interest of MonRoi, having by pure greed, placed himself in a conflict of interest situation between his duty of loyalty to MonRoi and his secret personal investment in InvestorCo under the disguise of the O’Connor Family investment.

 

[162] The evidence rapidly eliminated this additional theory of conflict of interest accusation as O’Connor clearly established, to the Court’s satisfaction, that he never personally invested that $75,000 in MonRoi via the O’Connor Family $100,000 investment or otherwise.

 

[163] O’Connor testified that the $75,000 cheque had been drawn on the bank account that he held jointly with his wife Barbara, adding that the funds were not his and came from the recent inheritances of their minor children Anne, Shaun and Ryan and of other children who did not yet have bank accounts. Their inheritances had been deposited into O’Connor’s joint account held with his wife who was responsible for managing their children’s inheritance. Those funds had absolutely nothing to do with him personally.

 

[164] Moreover, certain of the children were not available to issue cheques to cover their investment right away and other siblings temporarily covered for them, hence the $75,000 drawn from the joint account on April 29, 2005.

 

[165] As it appears from O’Connor’s trust account ledger for InvestorCo133 (6384366 Canada Inc.) and for the O’Connor Family134 (6384331 Canada Inc.), all funds transited legitimately through his trust account with $95,000 transferred to MonRoi on May 5, 2005, representing the investment of the O’Connor Family. The ledger also showed a balance of $0 after the extra funds deposited by the children via the $75,000 deposit were returned to their rightful owners by O’Connor.

 

[166] In short, Malobabic’s suspicions of unethical use of trust funds and of conflict of interest proved groundless in that respect as the Court is entirely satisfied that O’Connor never invested personally into MonRoi via InvestorCo with his children, other than in-kind with the legal services that he rendered directly to MonRoi.

 

[167] Moreover, on May 13, 2010, the Syndic du Barreau du Québec dismissed Malobabic’s ethical complaint in that regard, finding that O’Connor did not mismanage his trust account in this nefarious affair135. The Syndic had conducted a full review of O’Connor’s trust account and found nothing irregular. The decision of the Syndic not to

 

 

 

 

 

 

133 PDO-66, page 000942.

134 PDO-66, page 000951.

135 PDO-26.


 

file against O’Connor any ethical complaints with the Disciplinary Council of the Barreau du Québec was upheld by a decision of the Comité de révision of October 13, 2010136.

 

[168]   The Court also finds that all funds that transited through O’Connor’s trust account, in accordance with Malobabic’s instructions, were quickly transferred to MonRoi’s account, again under strict orders of Malobabic who insisted on proceeding quickly. She needed the funds on an urgent basis. There was absolutely no misappropriation and mismanagement of those funds by O’Connor, contrary to Malobabic’s accusations.

 

[169] Finally, the Court found that, at all relevant times, until Malobabic awarded him 1% of MonRoi shares through  InvestorCo, O’Connor never had a personal interest in InvestorCo via the O’Connor Family investment137 or otherwise beyond the professional mandate given by Malobabic to set up and organize InvestorCo initially.

 

2.10 The USA, the ATA, Malobabic’s rights of veto and the failed closing attempts of July 2005

[170] The closing, at which time all the documentation was to be executed (including the ATA and the USA138) and the MonRoi shares were to be issued in favour of the minority shareholders Morisco and InvestorCo, was postponed and delayed for a month with the arrival of BEC and the ensuing negotiations that resulted in the latter’s $275,000 investment made on July 14, 2005. Moreover, Malobabic did not want to close without Stikeman Elliott’s signed opinion that the contemplated transaction would be tax free for InnDe and for herself.

 

[171] It is important to bear in mind that the execution of the ATA was a crucial for all concerned, since InnDe’s failure to transfer all assets and the technology required by MonRoi to operate on the chess market meant that the investors would have invested their money into an empty shell, hence the reason why the ATA had to be executed among the first documents at the closing. This document was paramount for the minority shareholders. The preponderant evidence revealed that Malobabic refused to provide a signed copy thereof until August 2007, well after the institution of the present proceedings.

 

[172] With respect to the USA, O’Connor reiterated that its execution by all four shareholders was never a condition precedent to the issuance of the shares. The turn of events simply made it more convenient to have all documentation signed at the same time. If a snag would occur insofar as the USA was concerned, as it did, nothing prevented the shareholders from pursuing their discussions after the issuance of the shares in order to be able to finally sign the same. To do so, it nevertheless required all shareholders to

 

 

136 PDO-27.

137 Other than the moral obligation stemming from his recommendation to invest in MonRoi in April 2005. But, even then, all that was expected from the investors was that MonRoi be successful, as represented by Malobabic at the outset.

138 O’Connor had started working on the USA and the ATA and on a proposed closing agenda in early June 2005.


 

act in good faith and especially Malobabic to act within the boundaries of its fiduciary duty in her capacity as MonRoi’s sole director and representative of the controlling shareholder, InnDe.

 

[173] Be that as it may, it was contemplated that the closing would take place on July 21, 2005 in the afternoon or early July 22nd139, but the Morissette brothers were not available. Then, Malobabic decided to proceed with the closing on July 26, 2005140.

 

[174] From mid-July 2005, the exchange of the ATA and the USA drafts had intensified between O’Connor and all concerned, including Stuart, Morisco’s lawyer.

 

[175] As it will be seen hereafter, the situation was suddenly significantly complicated, giving rise to significant disputes with the minority shareholders, with new conditions that Malobabic insisted upon including mainly in the USA which, to all intents and purposes, conferred upon her rights of veto on key elements such as the issuance and the transfer of shares in MonRoi and even any transfer and the issuance of shares within the three holding companies (Morisco, InvestorCo and BEC). In other words, the shareholders of Morisco, InvestorCo and BEC could not freely dispose of their own shares without the consent of Malobabic, which they found to be totally unacceptable and abusive. Malobabic also insisted on a veto right to replace her as CEO of MonRoi. She had to be the only one to make such a decision. In other words, she was unmovable from that position unless she agreed to.

 

[176] In the minutes of a meeting of the investors held on September 21, 2005, to which O’Connor had been excluded by Malobabic, but copied on her email “for the sake of transparency”, she expressed as follows her vision regarding any transfer of shares in MonRoi and in Morisco, BEC and InvestorCo141:

Any share transfer (including indirect shareholders) needs to be approved by MonRoi [MonRoi being her as sole director], to avoid potential conflict of interest with the company operation, or other problems (like an investor involved in illegal activities).142

[Emphasis added]

 

[177] Previously in late June 2005, Malobabic had provided the following instructions to O’Connor:

 

 

 

 

139 PDO-68, page 002021.

140 PDO-68, page 001915.

141 In September 2005, O’Connor had been completely excluded of any further work on the USA as Malobabic had hired Mtre Brian C. Forget (“Forget”) to complete the closing. The minute details contained in the three-page email drafted by Malobabic “to help Brian [Forget]” about the USA, leave absolutely no doubt in the mind of the Court that Malobabic was totally at ease with the legal documentation and with the USA in particular, contrary to her many affirmations at trial.

142 PDO-67, pages 001565-001567; PDO-68, pages 002505-002507.


 

Seems Ok to me [regarding MonRoi’s organizational chart that incorporated InnDe Sub].

Please, make sure that no shares can be issued without my written consent.

I would like to have the Veto rights to say NO on issuing any new shares in InnDe Sub & MonRoi.

Please, make sure that any changes in InvestorCo & Morisco Inv. structures should be communicated in writing to me, including the terms of the deal.

Thanks. […]

Brana143 [Emphasis added]

[178] The Court understands that it was the first time that Malobabic was raising with O’Connor the question of her (InnDe) benefitting of certain rights of veto with respect to the issuance and the transfer of shares in MonRoi, which went against her own contractual undertakings vis-à-vis Morisco pursuant to the Morisco Financial Agreement and the Morisco Implementation Agreement that called for a special majority of shareholders to make such decisions. It was the same for the obligation by InvestorCo, Morisco and eventually BEC to inform her of any changes to their own shareholding structure. Later, Malobabic will expand her right of veto to the issuance or transfer of shares within these three holding companies. Under such circumstances, the shareholders of Morisco, InvestorCo and BEC would not be able to dispose freely of their own shares in those holding companies without her prior consent, a situation that would adversely impact the value of their shares as we will see when Morisco will want to dispose of its shares in MonRoi. By blocking a transfer of shares, Malobabic was able to position herself to prevent the transfer or sale to a third party and even impose her price.

 

[179] O’Connor testified that he advised Malobabic privately that such conditions were not only unusual but would also be problematic if raised with the minority shareholders. But his advice was not well received by Malobabic who henceforth nevertheless persisted in the same vein with the disastrous results that ensued. That gave her another reason to blame O’Connor for favouring the minority shareholders and acting against the best interest of MonRoi by [privately] disagreeing with her.

 

[180] On June 20, 2005, Malobabic wrote to O’Connor requesting the latest organizational chart of MonRoi “before we issue shares144. There was no mention of the USA to be executed in that message. She also demanded that O’Connor confirm the name and title of each of Morisco’s and InvestorCo’s shareholders “in one line only for each”145. On the same day, O’Connor provided to Malobabic a complete list of the

 

 

143 PDO-67, page 001140.

144 PDO-67, page 001138.

145 PDO-67, pages 001142-001143.


 

investors in InvestorCo with their respective titles146. With all due respect, Malobabic could not reasonably pretend, as she did at trial, that O’Connor did not provide her with the necessary information concerning the persons who had invested in InvestorCo, another groundless accusation.

 

2.11           The Unanimous Shareholder Agreement (USA)

[181] According to O’Connor, the concept of the USA was first discussed with Malobabic before the first meeting with the potential investors in April 2005. He explained to her that a USA was recommended in a closed corporation with only a handful of shareholders147. Later on, with the negotiations that led to the Morisco Financial Agreement and the Morisco Implementation Agreement, he also discussed with her, among other things, the super majority requirement concerning the issuance and transfer of shares in MonRoi that was part of the USA. At no time whatsoever was the issuance of the MonRoi shares, for which MonRoi stood to receive and benefit from more than $1.1M at the time, ever conditional upon the USA being signed beforehand by the minority shareholders.

 

[182] Moreover, O’Connor claimed that he drafted accordingly the Memorandum of Understanding submitted to Miralta, one of the venture capitalists approached by Malobabic in April 2005. Malobabic was also present when this issue was discussed with Miralta. It was a common and prudent instrument to have, in particular for the issuance of new shares in the future which under certain circumstances may have a dilution effect on the existing shareholders.

 

[183] O’Connor insisted that at all relevant times, none of the term sheets and Memorandums of understanding that he drafted for Malobabic would go out without her full agreement and understanding. At the time, Malobabic was in agreement with these proposals that all incorporated, inter alia, a provision for a USA.

 

[184] On June 5, 2005, Malobabic requested that O’Connor prepare the first draft of the USA which she received on the following day for her review before sending it to Morisco and InvestorCo148.

 

[185] In the first draft of the USA submitted to Malobabic on June 6, 2005149, MonRoi’s shareholders were InnDe150 (with its wholly owned subsidiary InnDe Sub151 that will soon be incorporated as 4278020 Canada Inc.), Morisco152 and InvestorCo153.

 

 

 

 

146 PDO-67, page 001150.

147 Considering that at the time, MonRoi was expected to only have a few shareholders with InnDe.

148 PDO-68, pages 001695-001696.

149 PDO-68, page 001701.

150 With 2,622,000 Class “A” shares of MonRoi. 151 With 851,000 Class “A” shares of MonRoi. 152 With 230,000 Class “A” shares of MonRoi. 153 With 575,000 Class “A” shares of MonRoi.


 

[186] The Court noted that paragraph 4.2154 of the draft USA reflected the agreed upon provisions of Schedule A of the Morisco Implementation Agreement with respect to the issuance of additional MonRoi shares.

 

[187]  On June 8th, 2005, O’Connor received this self-explanatory email from Malobabic:

 

Thanks for your presentation. Please, e-mail Shareholder Draft to Alain, Yves [Morissette] & InvestorCo (check with Sean [Sprackett]), for their review, subject to my review as well.155

 

[188] A few minutes later, O’Connor sent an email156 to Malobabic with version 2 of the draft USA for her review. The Court understands that he incorporated, in the section relating to restrictions on the transfer of shares of that version, new paragraph 6.4 at Malobabic’s request:

 

6.4 6384366[InvestorCo] and Morisco Investments agree to advise the Corporation [MonRoi], not less than two weeks prior to the issuance or transfer of any shares of their respective companies, of the names and addresses of the transferor and transferee, or the name and address of the recipient of such shares in the case of an issuance from treasury, as well as the number and class of shares to be issued or transferred.

 

[189] It was the first sign that Malobabic wanted to exercise some form of control over the holdings companies that were to  be  the  minority  shareholders  of  MonRoi.  At 5:38 p.m., the new draft USA was sent to InvestorCo and Morisco for their review and expecting their comments by June 13th, 2005, “as we are attempting to close on the Mon Roi structure and organization as soon as possible.”157

 

[190] However, as previously mentioned, their plan to close as soon as possible was changed with the indication, on June 13, 2005, that three potential investors (BEC) were interested to invest in MonRoi158.

[191]  A few minutes later, Malobabic responded to O’Connor:

Very good. Let's meet them [BEC] on Wednesday at 2pm. We could meet at Joe's [Tuccinardi] offices.

I think that we need to update the business plan of MonRoi. Thanks,

Brana.159

 

 

154 PDO-68, page 001704.

155 PDO-68, page 001718.

156 Idem.

157 PDO-68, page 001738.

158 PDO-68, page 001758.

159 PDO-68, page 001759.


 

[192] The ensuing weeks were devoted to concluding an agreement with BEC and dealing with their investment’s impact on MonRoi corporate structure and the related tax consequences.

 

[193]  By email dated July 10, 2005160, Malobabic wrote to O’Connor that she expected a revised copy of the USA containing new provisions that granted her rights of veto:

Latest Shareholder agreement with included comments from Morisco, My comments (Veto rights on Not issuing shares of MonRoi as long as I hold MonRoi shares directly or indirectly, CEO selection VETO) InvestorCo comments, include Elio's company [BEC] in the shareholder's agreement.

[Emphasis added]

 

[194] O’Connor testified that the question of Malobabic’s veto rights in that format had never been raised or discussed before then. He privately recommended against inserting such conditions in the USA which would, in all likelihood, be totally unacceptable to the minority shareholders, but Malobabic persisted. As its founder, it was her company and as the sole director of MonRoi, it was her sacred duty to protect it in the future.

 

[195] O’Connor’s premonition was right; Morisco refused to attend the scheduled closing mainly in light of the new clauses that purported to grant to Malobabic such veto rights, an unexpected requirement that Morisco strenuously objected to. The Court understands that at the time, Morisco’s objections reflected the consensus among the minority shareholders.

 

[196] Incidentally as a side note, in the same July 10th email, Malobabic also referred to the “Stikeman Elliott sheet [Memo]161” and instructed O’Connor that InnDe Sub’s162 shares in MonRoi should be reduced from 14.5% to 10.5%, with the difference (4%) being attributed to BEC who would be a new direct shareholder in MonRoi together with InvestorCo and Morisco. Malobabic finally gave the following instructions to O’Connor regarding InvestorCo163:

Make sure that InvestorCo is organized, so we could approve all the agreements.

I will approve all documents at the same time- asset transfer, share transfer, shareholder agreement. Make sure that people are invited for their signature (maybe Thursday at 7pm, or Friday at 10am) and that the person who approves

 

 

 

160 PDO-68, page 001809.

161 The July 10, 2005 email also evidenced that Malobabic was reviewing the drafts of the Stikeman Elliott Tax Memo and even requested that changes be brought to it. This email shows that Malobabic was involved with respect to MonRoi’s corporate structure and the USA. On July 11th, she asked O’Connor to email her the latest USA (PDO-68, page 001813).

162 Bearing in mind that later, Malobabic will insist under oath that she never authorized and instructed O’Connor to incorporate InnDe Sub for InnDe.

163 Idem.


 

documents has rights to do so. InvestorCo needs to give me $5k164 and I need to provide to InvestorCo $10k, instead of Legal C rollover.

[Emphasis added]

 

[197] This email confirms once again that Malobabic was clearly in full control of the situation.

 

[198] By email dated July 13, 2005 entitled “Investors List and details165, Malobabic gave new instructions to O’Connor for additions to be brought to the draft USA that had never been discussed before nor ever raised with O’Connor and the investors/minority shareholders:

In addition, I will need a history [of any investor wishing to deal with its shares] (if any transactions happened) and future transactions / offers in writing 2 weeks in advance:

For example, if there are changes of share ownership in InvestorCo / Morisco Inv. and all details;

In case that there is a holding company - I would need all names of shareholders of the holding company and their corresponding shares.

Should go in Shareholder agreement - MonRoi's right to audit the shareholder companies.

I also will need from Stikemen(sic) & Elliott in writing signed that with their recommendation there are no tax consequences to MonRoi, MonRoi's shareholders, InnDe and myself.

[199] By then, Malobabic was clearly handling the MonRoi corporate structure as she had already withdrawn that responsibility from O’Connor166.

[200] By email dated July 18, 2005167, Malobabic instructed O’Connor to add the following provision in the USA:

Please, e-mail me new draft of Shareholder agreement. We need to add some protection:

“This agreement shell(sic) be binding upon parties hereto and Brana's respective successors and assigns."

[Emphasis added]

 

 

 

 

 

 

164  This $5,000 represented the O’Connor Family’s contribution which was coming from O’Connor’s increased fees for that specific purpose, as agreed with Malobabic.

165 PDO-68, page 001860.

166 PDO-68, page 001861.

167 PDO-68, page 001863.


 

[201] By email dated July 18, 2005168, O’Connor sent to Malobabic the latest draft of the USA with the following documents:

 

I have also attached for your information the definitions from the Tax Act of "Arm's Length" and of "unanimous shareholders' agreement" from the Canada Business Corporations Act.

 

[202] Contrary to her testimony at trial, Malobabic was not the helpless person totally oblivious to corporate and legal matters who blindly followed O’Connor’s legal advice due to her lack of knowledge and her limited grasp of the English language and also claiming that O’Connor had never informed her on any notion related to a USA.

 

[203] On July 20, 2005, Malobabic instructed O’Connor to set the closing for July 26, 2005169 and to notify all concerned accordingly170.

 

[204] On the same day, Alain Morissette of Morisco advised O’Connor that Morisco would not be ready to execute the USA on that day, but that he could nevertheless be available at 2:00 p.m. on July 26th171.

 

[205] On July 21, 2005, Malobabic sent an email directly to Alain Morissette reiterating her invitation and asking him to bring along his lawyer (Campbell Stuart) at the July 26th closing and with respect to the USA to be executed by all on that day, she confirmed that the rights of the minority shareholders had remained the same and that the only additions were “protections” for her. Her position could not have been clearer:

 

Investor rights in the shareholder(sic) did not change (and Mr. Cambell(sic) already reviewed it), only protections related to me.172

 

[Emphasis added]

 

[206] On July 22, 2005 at 1:27 p.m., Alain Morissette wrote to O’Connor as follows about the USA, indicating his disagreement with the accrued powers to be granted onto Malobabic:

 

I want to know about the final document presentation as Brana sold some of her shares to another person [BEC]. We also want to have reviewed all documentation before closing and make sure that minor shareholders are well protected in all aspects as well as the future of the company. Power and responsibility of advisory board towards the company and investors. I do not think that only one person as CEO should have the power of all decisions and alone having the destiny of the company regardless of any reporting or responsibility towards the board or the investors. I am just mentioning that if something goes wrong or would not be

 

 

168 PDO-68, page 001864.

169 PDO-68, page 001916.

170 PDO-68, page 001918.

171 PDO-68, page 001919.

172 Clearly, Malobabic had not yet realized that the “protections related to me” were a deal-breaker.


 

satisfying for the benefit of the company from the board's point of view, we must have an alternative. I am not sure that this aspect is actually clear in the documents that I have seen.

 

We certainly need to cover this aspect before closing unless it is actually covered in documents that I have not seen. In any event I will want Yves Morissette to join me and probably Campbell Stuart. After discussion with Yves Morissette on next Tuesday morning we should discuss this aspect.173

 

[Emphasis added]

 

[207] At 3:40 p.m., Malobabic decided to respond directly to Alain Morissette, explaining that she had decided to add the veto rights (that she referred to as the “USA protections”) to the USA to “protect her investment, her reputation and the success of MonRoi”. Her message to Alain Morissette was clear, the changes that she made to the USA were non- negotiable, she had lost enough time with this:

Hello Alain,

Thank you for your e-mail.

I do not understand where your comments are coming from, as investor rights, already approved are part of the shareholder agreement. I have the power of making all day-to-day decisions in Mon Roi Inc. This was clearly stipulated and approved few months ago. I did include in the USA protections for my investment, my reputation and success of this company.

Recommendations from the advisory board were actually accepted. Advisory board is giving advice, but has no powers to make the decisions (as they might not be aware of all details, and have no in-depth knowledge of company's operations).

I had the following experience with people hired in the last two months:

1)  senior people failed to perform Mon Roi objectives, clearly delegated to them

2)  mistakes made due to lack of operation skills in Mon Roi environment

3)   wrong recommendations made due to lack of market knowledge in MonRoi environment

4)   wrong recommendations made due to lack of knowledge in global product rollout

5)  procrastination, not delivering on committed tasks within a reasonable timeframe

I have real examples-, which could have impacted all shareholder pockets. I do not mind listing and broadcasting all events related to MonRoi, as I keep detailed documentation folder for any future reference.

 

 

 

 

173 PDO-68, page 001950.


 

I made every time great decisions and it is insulting to read the e-mail below [Morissette’s email]. Entrepreneurs build the companies, so they can be sure that their destiny depends on their decisions, which are proven to be successful. This company success is based on 3 years of my life, all my contacts work with MonRoi because of me.

Everyone is welcome to attend the closing. Changing terms is not an option at this point. I already lost considerable amount of time on the agreements, and business (and my investment) suffers from it.

Brana174 [Emphasis added]

[208] Malobabic was not open to negotiate any more the USA and further amend it. She was not going to take into consideration the minority shareholders’ concerns. In other words, they had to take it or leave it. But, the problem was that MonRoi had already pocketed and used more than $1.4M from the same investors.

 

[209] Later on that same afternoon, despite his legal advice to discard the highly disputed new provisions, O’Connor circulated draft 7 of the USA (and of the ATA) still containing, as per Malobabic’s instructions, the veto rights that were highly objectionable to Morisco175.

 

[210] On July 25, 2007, Yves Morissette informed O’Connor that his brother Alain176 was held up in Quebec City and that they would not be in a position to review the latest draft of the USA before the following morning and he proposed to postpone the execution of this document to Thursday July 28th.177

 

[211] Malobabic nevertheless decided to proceed with the closing as planned on July 26th with InvestorCo and BEC, excluding Morisco178. O’Connor advised the Morissette brothers accordingly but urged them to work in the meantime with their lawyer Stuart so that they may still try to attend the closing in the afternoon of July 26th179. O’Connor was unaware at the time that Alain Morissette had a very good reason for being held up in Quebec City and being unable to review the draft USA and ATA.

 

 

 

 

 

 

 

 

 

174 PDO-68, page 001956.

175 PDO-68, page 001960.

176 The evidence revealed that sadly, Alain Morissette’s wife had been hospitalized due to a terminal illness.

He just could not come back to Montreal right away nor spend time looking at the USA.

177 PDO-68, page 002020.

178 Idem.

179 PDO-68, page 002025.


 

[212] The latest version of the draft USA and ATA  having been circulated to all concerned, O’Connor received queries from Mr. Charles Marien180 (“Marien”) on July 25th, 2005 questioning, inter alia, Malobabic’s veto rights181.

 

[213] Malobabic must have read the drafts of the USA as she notified O’Connor on July 25, 2005 that there was an error with respect to the number of shares held by InnDe182.

 

[214] The Court noted that at all relevant times, O’Connor’s responses to the investors were always supportive and respectful of Malobabic’s position and instructions183 and that he never revealed in any manner whatsoever the nature of his own advice to Malobabic and his professional disagreement with her position regarding her veto rights. As a matter of fact, Malobabic, having been copied with O’Connor’s answer to Marien, wrote to him: “Excellent answers!184

 

[215] On June 30, 2005, as MonRoi’s corporate structure was becoming more definite185, O’Connor sent to Marque d’Or information and documentation with the necessary instructions to complete the organisation of InvestorCo. Malobabic was copied on this correspondence that clearly revealed that O’Connor was indeed proceeding with the incorporation of InvestorCo, that its initial head office and mailing address would be at the residence of O’Connor where he was also running his law practice, that O’Connor was the initial corporation’s legal counsel and that its initial directors and officers were Mr. Walter Spirig (“Spirig”) (president) and Mr.  Louis Cousineau (“Cousineau”) (Vice- president and Secretary). InvestorCo also had at that time 10 directors listed in an annex (including Werner Moosberger) with a maximum of 12186. The Court understands that it had been agreed or decided that all shareholders of InvestorCo would also be members of its board of directors up to a limit of 12 which had not yet been reached.

 

[216] In anticipation that the closing was to take place on July 26th, 2005, O’Connor wrote on the day before to all the shareholders of InvestorCo187. As the initial organisation of InvestorCo was completed with the latter expected to receive its MonRoi shares on the following day, his role as InvestorCo’s initial legal counsel was coming to an end and its shareholders had to select another legal counsel:

In order to complete your investments in MonRoi, it is necessary to organize your company (6384366 Canada Inc.), so that shares can be subscribed for and issued, both to your company by MonRoi and to each of you by your company. Also, the company will have to sign the unanimous shareholders' agreement with MonRoi, a copy of the draft of which has been circulated.

 

 

180 One of the shareholders of InvestorCo.

181 PDO-68, page 002083.

182 PDO-68, page 002075.

183 PDO-68, page 002082.

184 PDO-68, page 002085.

185 Despite that no deal has yet been entered into with BEC.

186 PDO-67, pages 001275-001278.

187 With a copy to Malobabic.


 

To do this, I have asked 3 of you (Walter [Spirig], Louis [Cousineau] and Michael [Stearns]) to assume the positions of initial directors and officers, who have all accepted (see attached page).

Shares of your company will be issued as shown on the attached shareholder information sheet. The number of shares to be issued to each shareholder is the same as the number of shares you hold indirectly in MonRoi.

The closing of the transaction is at 2:00 p.m. on Tuesday (tomorrow) at the MonRoi offices.

Only Louis and Michael are required to attend (Walter is away this week). Once the share certificates are signed, it is my intention to keep the originals in the Minute Book and send you each a photocopy of your certificate. This is usual practice. However, should any of you want to retain the original yourself, you are welcome to have it; simply let me know if this is your preference.

Once this phase is behind us, it will be necessary for your company to hold a meeting to elect new directors and officers and discuss a shareholders' agreement.

The shareholders' agreement will have to conform to the relevant terms of the MonRoi unanimous shareholders' agreement (and maybe be very much the same overall). My role as interim advisor to your company to get things going will end after tomorrow. At that time, you will have to appoint new counsel, as necessary or desirable. It might be possible for me to assist in this capacity, but only if all parties agree, including MonRoi, to address potential conflict of interest concerns.

Obviously, fees will have to be paid by your company to your selected counsel.

In terms of out-of-pocket costs to this point, I will be asking each of you to contribute to the costs of incorporating and organizing 6384366 Canada Inc., which will not exceed $150 each.

On a more general level, a report on company activities and finances will be issued in the coming days.

Suffice to say for now that all is going as planned. Please feel free to ask any questions that you may have. Thanks, and regards,

Dan188

[Emphasis added]

 

[217]  On the following morning, having received the email above, Malobabic praised O’Connor for assigning the three directors to InvestorCo:

 

“It is great that you assigned Directors to InvestorCo.” 189

 

 

 

 

188 PDO-68, pages 002090-002091, PDO-67, pages 001498-001499.

189 PDO-67, page 001498.


 

[218] Despite the overwhelming evidence that the legal services executed in connection with that company were carried out with Malobabic’s full knowledge and consent and O’Connor having followed her instructions in that regard, Malobabic at trial blamed O’Connor severely for having done legal work for InvestorCo, commencing with its incorporation and acting as the initial corporate council190  without her instructions and consent, thus placing himself, as a result thereof, in a conflict of interest situation and in serious breach of his ethical duties towards Defendants. The fact that the O’Connor Family was one of the shareholders of InvestorCo compounded the conflict of interest situation in Malobabic’s eyes.

 

[219] In the evening of July 26th, 2005, O’Connor advised the shareholders of InvestorCo191 that the closing had been “postponed to allow time for some additional discussions and changes to the principal agreements [the USA and the ATA]. We hope to close the transaction tomorrow afternoon or Thursday morning.”192

 

[220] The Court understands that there might have been some form of communications193 between O’Connor and Stuart during the afternoon of July 26th, in an attempt to iron out the outstanding issues with the USA and the ATA.

 

[221] On the morning of July 27th, 2005, O’Connor forwarded to Malobabic a new version of the ATA that had been modified by Stuart, Morisco’s lawyer 194:

 

Please review and call me to let me know which proposed changes you don't like. I am now reviewing it as well.

 

[222] An hour later, Malobabic responded as follows to O’Connor, manifesting her frustrations without showing much openness to attempt resolving the outstanding issues with the minority shareholders who were now causing her damages and, unless they agreed to sign the USA with her disputed clauses unchanged, she threatened to double the already agreed upon purchase price for the MonRoi shares from $50,000 to $100,000 per 1% share. She also threatened to cancel the transfer of InnDe’s assets and technology and revert back the same from MonRoi to InnDe, thus leaving MonRoi an empty shell195:

 

This is to confirm that I feel like I am kept hostage, that MonRoi business is severely impacted, due to damages caused by defocusing MonRoi from its business plan execution.

 

 

 

190 The Court understands that O’Connor’s involvement was strictly to set up the corporation to enable the completion of the purchase by InvestorCo of MonRoi’s shares, as instructed by Malobabic.

191 With a copy to Malobabic.

192 PDO-68, page 002098.

193 In person or otherwise.

194 PDO-69, page 002735.

195 At that time, the transfer to MonRoi had not been done as the ATA had not even been signed as its content was still disputed with Morisco.


 

Therefore I would like to execute the following:

1.  I would like to be compensated for damages, immediately.

2.  Price of share grew, and it is not the same as 2 months ago. Anyone who keeps the company hostage and refuses to approve the agreement [the USA] by tomorrow at 10am, already agreed upon will need to pay for each 1 % (one percent) $100,000.

3.  Due to pressure tactics on me, steering the company in wrong directions- MonRoi business suffers and I wish to protect my investment. Should MonRoi not meet its forecasts due to continued pressure tactics on me from the potential shareholders, reserve the right to return any and all chess assets from MonRoi to InnDe - so I would be able to execute the MonRoi business plan.

To this end, I will ask for legal injections (sic) for all damages. Thank you,

Brana.196 [Emphasis added]

[223] This is another revealing illustration of oppressive behaviour by Malobabic, who always acted as if she was the victim of the minority shareholders’ oppression197. As sole director of MonRoi, Malobabic clearly did not fulfil her fiduciary obligations to MonRoi and to the minority shareholders by respecting, inter alia, their reasonable expectations, one of which being to receive the MonRoi shares to which they were legitimately entitled and execute a USA in compliance with the Morisco Implementation Agreement that she had executed. Malobabic was clearly motivated by one thing, namely to “protect her investment” via InnDe who happened to be the controlling shareholder. [Emphasis added]

 

[224] With all due respect, once Malobabic accepted the investors’ money ($1.4M) with the clear understanding that they were to be issued shares in MonRoi, she was wrong to guide or to base her decisions, as sole director of MonRoi, on her personal priorities as controlling shareholder to the detriment of the minority shareholders. The evidence revealed that to justify her actions and decisions, Malobabic often invoked her duties as sole director of MonRoi to “protect the interest of the company” while she was in reality protecting her own personal interests, being the interests of InnDe and not MonRoi.

 

[225] Be that as it may, the Court understands that O’Connor nevertheless worked on Stuart’s latest draft of the ATA as he sent a revised version to Malobabic at 11:12 a.m. with the following message showing his dedication to accurately reflect her wishes198:

Hi Brana:

 

 

 

 

196 PDO-68, page 002214 and PDO-69, page 002736.

197 Due to pressure tactics on me, steering the company in wrong directions- MonRoi business suffers and I wish to protect my investment

198 PDO-69, page 002737.


 

I have made the changes to the agreement [ATA], I believe on the basis we discussed. The comparison is against what I send(sic) to Morisco last Friday.  Please review and let me know if I have in any way misinterpreted your intentions. Then, I will revise as necessary and send to Campbell Stuart.

[Emphasis added]

[226] Still in the morning of July 27th at 11:56 a.m., Malobabic wrote to O’Connor a curt message: “E-mail it [ATA Draft 7] to Cambell(sic)199, with no other comments and instructions, leaving the Court to conclude that, in all likelihood, O’Connor’s latest draft of the ATA reflected accurately her instructions.

 

[227] Following the transmission of draft version 7 of the ATA to Stuart200, at 6:23 p.m., O’Connor advised all the investors, including Stuart, that the closing would take place at 10:30 a.m. on the following morning of July 28th, 2005201 and that the latest versions of the USA and ATA would be circulated to all later during the evening.

 

[228] The reception of drafts version 8 of the ATA and of the USA prompted Stuart to call O’Connor and to voice his clients’ strong disagreement with the proposed modifications that were essentially cosmetic in his view, while ignoring the substantive ones for the protection of MonRoi and of its shareholders. Given the nature and the extent of Stuart’s recriminations, O’Connor suggested that Morisco’s lawyer put in writing his clients’ concerns.

 

[229] A lengthy but quite revealing email was sent by Stuart in the evening of July 27th, 2005 to O’Connor, Malobabic and to the investors in Morisco, InvestorCo and BEC. Stuart’s email revealed that O’Connor had clearly failed to reach an agreement with Morisco’s lawyer as the latest proposals contained elements that Morisco considered to be deal breakers:

 

Dan,

 

You were right. This should be in writing. Re: Asset Transfer Agreement

I attach my revision of the Asset Transfer Agreement (showing changes needed), as well as your revision highlighting your response to those changes.

 

Generally speaking, you have made the cosmetic changes, but ignored the substantive ones. Those substantive ones are absolutely necessary for the protection of MonRoi and its shareholders, and it is incumbent upon your client to act in good faith in addressing them. We are not talking about details of

 

 

 

199 PDO-69, page 002754.

200 PDO-69, page 002757.

201 PDO-69, page 002769.


 

language, about which there can be negotiation and compromise. We are talking fundamentals.

 

I will cite just one example, perhaps the most egregious of them all. You were asked to state in clause 2.3 that the Underlying Technology License is exclusive and irrevocable. Your response is a giant step backwards on both counts, by stating that it is neither exclusive (you have given InnDe room to continue using the Underlying Technology in the Chess Business even during the term of the license); nor irrevocable (InnDe, controlled by Brana, can revoke the license if MonRoi, also controlled by Brana, fails to meet the objectives of its business plan). Needless to say, the other intellectual property assigned to MonRoi in the Asset Transfer Agreement will be useless when the Underlying Technology is yanked.

 

These are not small issues. In addition to the fact that your revision directly and plainly violates Brana's explicit undertakings in clause 14 of the May 11, 2005 agreement with Morisco202, the agreement as drafted would never be acceptable to the exchange when it came time to list. Precarious title to MonRoi's sole significant asset - which this is - would kill any application in the egg. I assume you know this, and that therefore Brana does too. The implications are troubling.

 

I will not waste time addressing the other maneuvers embodied in your response. Suffice it to say that MonRoi and its shareholders have the right to have absolute title to the asset that is their lifeblood, to have secure access to maintenance of that asset at least at market prices, to have a simple statement that the assets being acquired are sufficient to run the current business, to know the cost of the liabilities they are assuming and the value of the assets they are trading away, and so on. It is time to stop creating loopholes and potential conflicts of interest. I await your response to the legitimate concerns raised in my draft.

 

Please be advised that the execution of an Asset Transfer Agreement without correcting these flaws would be considered by my clients to be an act of blatant conflict of interest and a breach of both contractual and fiduciary duties by your client.

 

Re: Unanimous Shareholders Agreement

 

I attach my revision of the Unanimous Shareholder Agreement (showing changes needed), as well as your revision highlighting your response to those changes.

 

As I stated in my earlier e-mail, your changes to clauses 3.5, 4.5, 5.4 and 6.1 fall short of what was required. Your revision to clause 3.5 is a step backwards - it does not even maintain the vague "compensation plan" in your earlier draft, but is merely a "dividend plan which must not jeopardize current or future operations and

 

 

202 The Morisco Financial Agreement.


 

plans (controlled by Brana). Brana has explicitly agreed, in the event the company stays private, to having MonRoi's board "institute a plan aimed at returning to the shareholders a return on their investment, which may be in the form of dividends, options, share purchase plan or otherwise". Sorry if she doesn't like the language. My clients have the right to have their contract respected, and all the shareholders have the right to an undertaking that they will not find themselves bereft of both liquidity and value through procedures entirely at the disposal of Brana. I invite you to consider the effect of your version of the Unanimous Shareholders' Agreement in the context of a sale of all of MonRoi's assets, under procedures controlled by Brana, for a substantial sum of cash injected into MonRoi, which cash could well be needed for "future company operations and plans", as determined by Brana.

 

Your take on clause 4.5 is to leave Brana with absolute control over her successor, on clause 5.4 is to leave her with sole signing authority over at least $50,000 and likely much more, and on clause 6.1 is to leave Brana with an absolute veto over equity financing of MonRoi even if her holdings are reduced to one non-voting share held through a holding company. Brana's insistence on keeping such staggering opportunities for arbitrary control, obstruction and abuse naturally raise fears that the opportunities would be exploited. I can't imagine how to defend such terms before a shareholder, a creditor, an exchange, or a judge. The shareholders are asked to shoulder fiduciary obligations. Their first duty is to get rid of avenues for misuse such as these, as any examination of their performance will start with their negligence in oversight.

 

As with the Asset Transfer Agreement, my clients are well past the point of "negotiating" language on non-negotiable issues. Our required changes do no more than provide basic protection for everyone, and have to be implemented. Given the nature of the current discourse, please also note that the following are also required in the Unanimous Shareholders' Agreement:

 

-     All cheques need 2 signatures

 

-     There has to be a functioning Board of Directors with real powers, composed of shareholder nominees pro rata

 

-     The Asset Transfer Agreement will be an integral part of the USA;

 

-     Any sale of the assets of Mon Roi will automatically trigger a corresponding dividend of the proceeds

 

-     There have to be real measures in place for holding Shareholders and director's meetings, with real control over the operations of MonRoi as contemplated in its governing statute

 

Yves Durand and Theresa Furneri have to be reengaged. Their dismissal today is an act of sabotage and brinkmanship that indicates a catastrophic lack of judgment on Brana's part, and clear evidence she cannot be allowed the complete discretion she claims.


 

I have just received your e-mail purporting to have a closing on these 2 agreements tomorrow morning. My clients will not attend a closing on the USA unless their concerns are addressed in a clear and transparent manner. Any execution of the Asset Transfer Agreement without the corrections required would be actionable. Your client is formally put on notice of this fact, and that if these concerns are not addressed within 48 hours, my clients reserve the right to undertake any procedures to protect themselves, MonRoi, and the shareholders generally.

 

Do govern yourselves accordingly. This letter is sent without prejudice to my client's rights.

 

Campbell Stuart203 [Emphasis added]

[230] At trial, Malobabic repeatedly alluded to the fact that the accusations voiced by Stuart implied and even confirmed that at the time, O’Connor was in a conflict of interest situation to the detriment of MonRoi, InnDe and herself. With all due respect, Malobabic misunderstood completely the true essence of Stuart’s complaints that were not aimed directly at O’Connor, but rather at her in her capacity as sole director of MonRoi and representative of the majority and controlling shareholder, InnDe. In reality, O’Connor found himself to be in conflict of interest not personally, but as lawyer for MonRoi who was clearly acting on the instructions of Malobabic who was prioritizing without any doubt first and foremost her personal interests via InnDe, MonRoi’s majority and controlling shareholder.

 

[231] In other words, Malobabic unwavering veto requirements, obviously supported by O’Connor in the various drafts that he prepared and submitted to all, was forcing the lawyer to support officially a legal position that clearly went against the best interests of MonRoi and of the minority shareholders by conferring powers and controls to Malobabic, as representative of InnDe, that were unacceptable and detrimental to the minority shareholders. In reality, Malobabic was right to say that O’Connor was acting against the better interest of MonRoi when he was following her instructions that aimed at protecting InnDe and her to the prejudice and detriment of MonRoi and of the minority shareholders.

 

[232] Under such circumstances, Stuart was right to consider that for the purposes of the closing with all shareholders, Malobabic, as sole director of MonRoi, had the fiduciary duty to act in the interest of the said corporation and of all of its shareholders, and not only for InnDe. By exacting unexpected and unannounced unilateral veto rights in her favour in the USA (and by the same token, in favor of the majority shareholder InnDe) to the clear detriment of the minority shareholders, Malobabic was placing herself in a conflict of interest situation and was in breach of her fiduciary duties as MonRoi’s director. In Stuart’s opinion, such an unreasonable position204 conferred undue advantages and

 

 

203 PDO-68, pages 002219-002221; PDO-69, pages 002770-002772.

204 Relating to the Veto rights and other issues raised by Stuart with respect to the ATA.


 

rights upon the majority shareholder and Malobabic went against the interest of MonRoi itself. O’Connor could not represent InnDe and Malobabic on the one hand and MonRoi on the other hand. By proposing and supporting publicly Malobabic’s position as the lawyer for InnDe (Malobabic) and MonRoi at the same time, O’Connor could be perceived as placing himself in a conflict of interest situation vis-à-vis MonRoi. However, if under such a scenario O’Connor found himself in a situation of conflict of interest, it was strictly because of his loyalty to InnDe and Malobabic. By putting forward her highly disputed position, he was promoting a position that was prejudicial to the minority shareholders and to MonRoi, who had by then accepted some $1.4M in investments that gave to the minority shareholders the right to receive the agreed upon shares. [Emphasis added]

 

[233] Under such circumstances, the Court finds, with all due respect, that Malobabic was ill founded in persisting to act, despite her status of sole director of MonRoi, as if MonRoi was always hers and only hers to the prejudice of the minority shareholders who basically had no rights other than complying blindly with her demands. In that respect, Malobabic’s conduct was unreasonable, if not abusive and oppressive towards the minority shareholders and it could not be justified by arguing, as she did at trial, that by accepting the minority shareholders’ position, she would have been forced to act against the “reasonable expectations of MonRoi” that were, in reality, her own expectations to maintain her absolute and exclusive control over MonRoi, just as if the minority shareholders were simply not there.

 

[234] The subsequent changes that Malobabic agreed to bring to the USA and the ATA in an attempt to accommodate  Morisco and the other minority shareholders  were obviously insufficient to obtain their signature on the USA, as some 18 months later, the present proceedings were instituted despite the intervention of other lawyers. In retrospect, it was too little, too late. Throughout, O’Connor remained nevertheless faithful and loyal to his client MonRoi, acting via Malobabic, and executed her instructions despite the catastrophic consequences for the minority shareholders and ultimately for her, InnDe and mainly MonRoi.

 

[235] Stuart’s email of July 27th, 2005 had the effect of alerting InvestorCo and BEC not only of the serious issues identified by Morisco concerning the USA and the ATA, but also of the unexpected and sudden dismissals of Yves Durand and Teresa Furneri made on the same day by Malobabic. Instead of growing MonRoi’s workforce in terms of key personnel as planned and represented to the minority shareholders with the Cash-Flow Forecasts submitted earlier to them, MonRoi’s personnel was being reduced just as they were to enter into a critical phase of the commercialisation of the MonRoi products. Part of their $1.4M investment was to serve for that very purpose.

 

[236] The timing of those sudden dismissals, only a few hours before the scheduled closing, was quite surprising, to say the very least. In all appearances, Malobabic wanted to assert her complete control over MonRoi’s management and operations, but why do it at such an inopportune moment? Moreover, her unilateral decision involving Durand, one of the Morisco shareholders, combined to the veto rights that she was demanding were


 

nothing to inspire confidence to the minority shareholders about the direction of the management of MonRoi in the future. Compounding the situation was Malobabic’s insistence to have a veto right with respect to replacing her as MonRoi’s CEO and choosing a replacement. In fact, this new development only reinforced the idea that proper management had to be put in place in MonRoi.

 

[237] Malobabic explained her decision with the pretext that she had decided that MonRoi should save money. Later, her version of the facts evolved by adding that the decision to save money on July 27, 2005 was directly linked to her decision made on the same day to refund the investors. Stearns, the president of InvestorCo, addressed the following message to the shareholders of InvestorCo205 on that same evening:

Good evening fellow MonRoi investors,

As you should all be aware, Walter Spirig, Louis Cousineau and myself have agreed to represent you at a forthcoming meeting intended to sign-off on the Unanimous Shareholders Agreement in MonRoi and Asset Transfer Agreement between InnDe and MonRoi. It is apparent that there are serious issues being raised by MonRoi's largest shareholder, Morisco.

Council for Morisco, Campbell J. Stuart, in his e-mail this evening states their position and announces recent, unconfirmed, dismissals of some key personnel in this venture. At this point, though willing to continue representing our group of investors, I would require verbal or e-mail confirmation of everyone's position of the present situation before proceeding with the closing.

Michael Stearns [Emphasis added]

[238] Although being one of the recipients of this email, O’Connor did not respond to it nor did he know who had responded to the same and what would have been their position in connection with Morisco’s reaction to the latest draft agreements. However, at 11:07

p.m. on the same evening, O’Connor forwarded immediately a copy of the same email to Malobabic for her information206.

 

[239] Malobabic responded to O’Connor at 11:16 p.m., revealing that MonRoi only had one employee at the time, namely her sister Zeljka and that minority shareholders would not run MonRoi:

MonRoi's largest shareholder is InnDe. Minority shareholders can not run the company. Zeljka [Malobabic, her sister] is the only employee which is key due to her international chess background, and the only employee in general.

Brana207 [Emphasis added]

 

 

205 PDO-68, page 002282.

206 PDO-68, page 002314.

207 PDO-68, page 002315.


 

[240] Based on the foregoing, Malobabic had been reducing MonRoi’s workforce in complete breach of her own representations in the Cash-Flow Forecasts submitted to the investors at the outset. How could MonRoi contemplate generating the revenues represented by Malobabic with almost no employees? How did Malobabic use the $1.4M invested by the minority shareholders? Where did their $1.4M go? That question has not yet been answered some 13 years later.

 

[241] Previously, on the same evening at 10:59 p.m., Malobabic sent another email to the shareholders of InvestorCo and of BEC, explaining as follows her position, undoubtedly prompted by Stuart’s earlier incendiary email:

I received some comments, which appear to be designed to cause dissension and further damage to InnDe and MonRoi operation. They are misleading and incomplete. Threats are unfounded.

In light of the uncertainly surrounding Morisco's investment, the decision was taken to immediately preserve the company's funds and terminate certain contracts. [Durand and Furneri’s employments]

The attached agreements [drafts of the USA and of the ATA] are fair and balanced. I look forward to closing tomorrow and answer any question that you might have.

Brana208 [Emphasis added]

[242] The Court understands from the preponderant evidence that Malobabic wrote this email herself but incorporated into it the only suggestion made by her then lawyer O’Connor that the attached agreements (version 8) were “fair and balanced”, hoping that the minor concessions granted therein by Malobabic would be acceptable to all, including Stuart and his clients. Yet, Malobabic insisted at trial that the email had been entirely drafted by O’Connor209, another statement of hers that was not accurate and tended to mislead the Court.

 

[243] In his aforesaid July 27th email, Morisco’s lawyer qualified the dismissals of Durand and Furneri as “an act of sabotage and brinkmanship that indicated a catastrophic lack of judgment on Malobabic's part” and clear evidence that the latter could not be allowed the complete discretion she claimed with respect to the management and the operations of MonRoi. O’Connor testified that he was totally unaware of Malobabic’s decision in that regard. As Durand, a shareholder of Morisco, was in place in accordance with the Morisco Financial Agreement, he could not explain the rationale behind Malobabic’s sudden unexpected move other than to exert further pressure on Morisco to come to the table and accept her non-negotiable conditions. Moreover, in terms of saving money, Morisco

 

 

208 PDO-68, page 002283.

209 Malobabic wanted to convince the Court that O’Connor was the one who had written, presumably to establish that he was in agreement with her position: “I received some comments, which appear to be designed to cause dissension and further damage to InnDe and MonRoi operation. They are misleading and incomplete. Threats are unfounded.”


 

had prepaid Durand’s salary. As to Furneri, she was MonRoi’s chief engineering officer and, in his view, she was competent. As could be appreciated from Stuart’s comments at the time, these unilateral decisions on Malobabic’s part had not been well received by the minority shareholders and only heightened the growing mistrust towards her.

 

[244] To make such a drastic move a few hours only before a major closing with all the investors is simply mind-boggling, especially when considering Malobabic’s explanation given at trial that by then (July 27, 2005), she not only had made the decision to save money, but to use those funds to “refund” the investors. How come her decision was not mentioned in her above-mentioned email of 10:59 p.m.? If that was indeed the situation, the Court can only conclude that Malobabic did not really want to go ahead with the closing in the following days and that she no longer wanted the minority shareholders to be involved with MonRoi and receive their shares. But, if Malobabic had really decided to refund the investors, it is surprising that she never disclosed her decision clearly and explicitly to any of the minority shareholders at the time.

 

[245] With all due respect, the Court does not believe Malobabic’s testimony on that specific issue. Her subsequent behaviour and writings simply did not support her affirmation. Moreover, the money that Malobabic was allegedly saving with respect to Furneri and Durand210 was minimal compared to the $1.4M to be refunded. Also, the so- called saving was not really one as Durand’s salary had been paid in advance by Morisco211, who soon after demanded that the unused balance be refunded to it, Malobabic refusing to reimburse the unused portion.

 

[246] The Court cannot help to wonder how much money was left from the $1.4M received by MonRoi that prompted Malobabic to save money by firing key personnel that were covered by the Cash-Flow Forecasts, leaving her alone with her sister Zeljka. One thing is certain, by then or soon after, she diverted $275,000 (the BEC investment) to InnDe to reimburse past research and development expenditures that she had incurred to develop her technology.

 

[247] On the following day, July 28, 2005, Tuccinardi of BEC wrote to Malobabic and to O’Connor. In his message, he indicated, inter alia, that Stuart had brought up some valid points and issues and that he shared the same concerns about the USA and the ATA212. At trial, Malobabic produced Tuccinardi as a witness who was part of BEC that settled out of Court to become a shareholder of MonRoi. In a complete reversal of his previous position stated above, he testified that he was now in agreement with the disputed provisions of the USA and the ATA, even considering them reasonable and acceptable. He would have signed to same. If so, why didn’t he sign at the time? Why did he write that he shared the same concerns that Stuart had at the time?

 

 

 

 

210 $6,000 per month for six months only.

211 $36,000 comprised into Morisco’s $536,000 investment.

212 PDO-68, page 002316.


 

[248] The re-scheduled closing did not take place on July 28th, 2005 given the absence of Morisco.

 

[249]  At the end of the afternoon, Malobabic sent to O’Connor for his review a new draft of the USA that she had personally modified213. O’Connor noted that she had not modified the two “offensive clauses” of the USA (4.5 and 6.1).

 

[250] At 6:14 p.m., O’Connor proposed the following message to be sent to the investors by Malobabic:

Hi Brana:

Here is my proposed communication to the investors. Lady and Gentlemen:

At the proposed closing this morning, Morisco Investments was not in attendance. There was a useful discussion of the asset transfer agreement and the unanimous shareholders' agreement. We thank those shareholders who were represented for their comments and questions.

The latest versions of these two agreements are attached showing the most recent changes.

We understand that the representatives of InvestorCo (6384366 Canada Inc.) and Placements BEC will attempt to meet with representatives of Morisco Investments in the near future to discuss the situation, and will be advising MonRoi by Monday of the results of these discussions.214

[251]  Later, Malobabic simply responded to O’Connor:

Great! Thanks Brana215

[252] The Court must draw from the foregoing that Malobabic was not only in agreement with O’Connor’s proposed message, but also with versions 9 of the ATA and of the USA that were attached to his email. The Court understands that O’Connor’s changes reflected their discussions with the minority shareholders that had shown up at the aborted closing earlier that day. However, the critical clauses had not changed in their substance, as Malobabic was still unwavering in her position.

 

[253] The evidence revealed that soon after the aborted closing, Malobabic removed O’Connor from all tasks related to the closing as she had retained the services of Norton Segal to verify the legal documentation prepared by O’Connor in connection therewith and of Mtre  Brian C. Forget (“Forget”) to pursue the efforts to close with the minority

 

 

213 PDO-68, page 002318.

214 PDO-68, page 002340.

215 PDO-68, page 002370.


 

shareholders, which the latter was not able to successfully complete during the next 18 months.

 

2.12 Conclusions on the Unanimous Shareholder Agreement (USA)

[254] The Court finds that the failure of the parties to come to an agreement with respect to the USA cannot be imputed on O’Connor who, at all relevant times, followed the instructions of Malobabic in her capacity as the sole director of MonRoi. The evidence also revealed that the latter refused to consider O’Connor’s advice with respect to the disputed clauses that she insisted on incorporating in the USA despite the fact that in doing so, she was contravening to her own undertakings contracted in the Morisco Financial Agreement.

 

[255] The preponderant evidence does not support Malobabic’s contention that the execution of the USA was a condition precedent to the issuance of MonRoi shares to the minority shareholders. It only served as an after the fact pretext for her unjustified refusal to issue said shares to the minority shareholders.

 

[256] The evidence also revealed that in making such controversial decisions, Malobabic was in a conflict of interest situation by prioritizing her personal interest as sole director and shareholder of InnDe, the controlling shareholder of MonRoi, to the detriment of MonRoi and the minority shareholders.

 

[257] Respectfully, Malobabic cannot reasonably argue successfully that with proper and timely legal advice from O’Connor about the USA, this “imbroglio”, as she described it, would have never occurred. The Court respectfully disagrees.

 

[258] In April 2005, Malobabic urgently needed $1.2M to commercialise her MonRoi products for August of the same year and borrowing money had been ruled out. Malobabic made the choice of soliciting money, a lot of money, for her start-up company from private equity investors based on her representations that, with her 10-year FIDE exclusive contractual relationship on hand, her company stood to generate revenues exceeding $600M within its first five years of operations. Clearly, in the eyes of the investors, Malobabic offered them access to a gold mine with such representations.

 

[259] With such a promising financial outlook, Morisco, the most professional investor among those solicited, also envisaged that MonRoi should become a publicly traded company on the stock exchange.

 

[260] In the Court’s opinion, two fundamental things emerge from the preponderant evidence. Primarily, all concerned really believed in the technical capabilities of Malobabic, in her close relationship with FIDE and in her highly promising financial forecasts.


 

[261] However, with over a million dollars invested in that start-up company, Malobabic had to allow the investors to be somewhat involved in the management of the future company. This explains Morisco’s requirement that one of its shareholders, Yves Durand, be employed by MonRoi at Morisco’s cost to assist Malobabic on the management and operations side as Morisco expected to eventually list MonRoi publicly on the stock exchange. This also explains why a USA was necessary as it transferred the power of the directors to all shareholders who would soon be four.

 

[262] At trial, Alain Morissette explained that the USA was not necessary for a publicly traded company, as any such agreement would become obsolete upon MonRoi’s entry on the stock market. However, the Court noted that with the First Morisco MOU, Malobabic had agreed with Morisco  that MonRoi would become a  publicly traded company by July 2006. Under such short circumstances before entering the stock exchange, there was little need for a USA, especially since Malobabic had already agreed to hire Durand to assist in the management of MonRoi while being the ears and eyes of Morisco before MonRoi’s entry on the stock exchange.

 

[263] The Morisco Financial Agreement entered into in May 2005 was a different story. Under that second scenario, Malobabic had this time kept full control on the decision of MonRoi going public or not. It was her call and not Morisco’s decision anymore. The agreement provided Morisco with a “safe exit” if Malobabic decided against going public. However, with $536,000 at risk, the Morissette brothers wanted a say in the operations and in the management of MonRoi. Durand’s six-month employment was still a condition, but now the presence of a USA made perfect sense. At the time of reaching this agreement, there were only two minority shareholders contemplated with InnDe. In the Court’s view, the terms and conditions found in the Morisco Implementation Agreement dealing with the special resolutions made perfect sense. It gave a say to Morisco and InvestorCo while leaving ample control and flexibility to InnDe as InnDe and Malobabic were no longer the sole owners.

 

[264] Be that as it may, the Court does not believe that the inclusion of a USA to the Morisco Financial Agreement was a capricious requirement decided solely by O’Connor without any prior discussions with Malobabic.

 

[265] Respectfully, the Court does not believe that if O’Connor had provided to Malobabic at the outset more information and given additional advice to those he already provided in connection with the USA, the latter would have obtained her private equity financing while keeping full, absolute and total control over what she considered to be “her company”.

 

[266] With people accepting to invest $1.4M in a start-up company without any proven track record whatsoever, it was somewhat ambitious for Malobabic to expect that the investors would blindly allow her to make unilaterally all management and operational decisions, especially when they perceived, rightly or wrongly, a weakness on that front. Competent personnel had to be hired in that respect and it was reflected in the Cash-


 

Flow Forecasts. But, it turned out that Malobabic refused to hire the COO that was part of her financial forecasts and she even fired Yves Durand before the end of his six-month involvement previously agreed upon with Morisco.

 

[267] Respectfully, Malobabic could not reasonably expect to maintain a small family business venture where she would keep on deciding everything and be accountable to no one because, as she pretended at trial, no one else had the competence and the know- how to understand and to make the crucial business decisions that she wanted to make unilaterally.

 

[268] Moreover, it became obvious as time went by that Malobabic became increasingly adverse to provide timely and relevant information about MonRoi to the investors on the basis that suddenly everything was sensitive confidential corporate information. Apparently, the minority shareholders did not have the capacity to fully understand and appreciate such sensitive corporate information, and her former lawyer O’Connor was part of that group.

 

[269] The Court firmly believes that had Malobabic presented to the potential investors her true vision of MonRoi or, by using her own words, had she disclosed to them “MonRoi’s reasonable expectations”, which were her own, it is highly unlikely that the present investors would have accepted to take such a financial risk under such circumstances and conditions. Based  on the terms and  conditions of the  Morisco Financial Agreement and the Morisco Implementation Agreement, the USA offered a form of protection to all shareholders on various issues that would hopefully limit, if not eliminate, future disputes among them.

 

[270] At trial, Malobabic argued that under such circumstances and knowing that her own and MonRoi’s expectations were reasonable, O’Connor should never have transferred the money to MonRoi prior to being certain that every shareholder had signed beforehand a shareholder agreement and not necessarily a unanimous shareholder agreement. As such, O’Connor committed, in her view, a serious professional fault that caused direct damages to all Defendants.

 

[271] With all due respect, the preponderant evidence does not favour Malobabic’s position. At all relevant times, she claimed to be a young entrepreneur, an inventor and an astute businessperson. From the outset, O’Connor had no reasons to suspect that Malobabic’s initial representations to the potential investors were not accurate and that, especially on the business point of view, Malobabic would adopt incredibly intransigent and unreasonable positions vis-à-vis the investors/minority shareholders who had already entrusted her with their own money in excess of $1.4M and who expected to receive shares.

 

[272] Malobabic blamed MonRoi’s lawyer for this gigantic mess, bearing in mind that all the lawyers that she hired from July 2005 onwards were never able to reach any agreement with the minority shareholders until well after the legal proceedings had


 

commenced. Obviously, O’Connor could not still be the problem some 18 months following his removal from all the closing aspects in July 2005 until the institution of the present legal proceedings in December 2006.

 

[273] There is no evidence that during that period, O’Connor either manoeuvred or advised the other minority shareholders against signing any USA with Malobabic; on the contrary, he was favourable to reaching a common ground that would have satisfied all parties, thus permitting MonRoi to concentrate on its Business Plan.

 

[274] The evidence revealed that if O’Connor found himself in a difficult situation vis-à- vis the minority shareholders in July 2005, it was because he tried to honour his professional ethical obligations towards his client MonRoi, controlled by Malobabic (InnDe) who had different priorities. Contrary to what Malobabic maintained repeatedly at trial, O’Connor was not acting at the time against her interests nor against the interests of InnDe and MonRoi with respect to the USA. O’Connor admitted during his testimony that the disputed modifications that he carried out to the USA and to the ATA at Malobabic’s express instructions were more beneficial to InnDe (and consequently to her), but not necessarily in the best interest of MonRoi that found itself plunged into a crisis as a result of Malobabic’s decisions. Despite the adverse consequences for all minority shareholders, including the O’Connor Family, O’Connor nevertheless acted in accordance with Malobabic’s instructions without voicing to anyone else his disagreement.

 

[275] The Court would respectfully add that when one’s lawyer advises his client of his disagreement with the latter’s position in the course of their confidential communications and exchanges, it does not necessarily indicate that he is acting unethically or against the interests of his client. A lawyer is not expected to always provide legal advice that must be acceptable to his client or meet his expectations, as Malobabic seemed to imply.

 

[276] As evidenced with Stuart’s email of July 27th, 2005, Malobabic unfortunately created, against her solicitor’s better advice216, fundamental issues for the minority shareholders that ultimately caused the July 28th, 2005 closing to abort given her unwavering position which created a deal breaker for the minority shareholders who had placed their trust and confidence in Malobabic by agreeing to invest more than $1.4M in MonRoi.

 

[277] Once that she accepted the $1.4M from the investors who expected to receive MonRoi shares, Malobabic could not use the same as leverage to force them to accept conditions determined unilaterally by her in contravention of her own contractual undertakings.

 

[278] Based on the overwhelmingly preponderant evidence, the Court also finds that at all relevant times during the execution of his legal mandate, O’Connor acted ethically and

 

 

216 And in contravention to her own undertakings contracted in the Morisco Financial Agreement and the Morisco Implementation Agreement.


 

loyally vis-à-vis his client MonRoi while keeping confidential the legal advice that he had provided to Malobabic, its sole representative, with respect to the major and fundamental issues raised by Morisco’s lawyer, in particular in connection with the USA and the ATA.

 

2.13           The Asset Transfer Agreement (ATA)

[279] The Court understands that pursuant to the Morisco Financial Agreement, Malobabic undertook to cause InnDe to transfer to MonRoi its rights in the FIDE MOU and the applicable patents and trademarks. In other words, InnDe agreed to grant to MonRoi the exclusive right to use its technology, but limited to the chess market and including also the exclusive use of the World Databank of Chess, InnDe (Malobabic) retaining the core technology and the rights to use it in other applications and markets.

 

[280] O’Connor was mandated by Malobabic to, among other things, draft the Asset Transfer Agreement (the “ATA”) that was to complete the agreed upon transfer of InnDe’s assets. The execution of the ATA by Malobabic for InnDe was crucial for MonRoi and its minority shareholders as without those assets, technology and related patents effectively transferred by InnDe to MonRoi, the latter company would remain an empty shell unable to operate and commercialise MonRoi’s products on the chess market.

 

[281] This chapter deals with the minority shareholders’ multiple attempts to obtain the confirmation that the ATA had really been executed by Malobabic. When they were informed by Malobabic that she had executed the ATA on August 8, 2005, prior to her departure for Dresden, Germany as a precaution in case something happened to her during the trip, the minority shareholders requested to see the signed ATA, but to no avail.

 

[282] The evidence revealed that despite Malobabic’s assertions that she signed the ATA on August 8, 2005 and that she disclosed a signed copy to the minority shareholders in early September 2005217, they were only able to see the signed document two years later in August 2007 after the institution of the present proceedings218. They claimed that this was another act of oppression by Malobabic who, for some obscure reasons, refused to provide them with the signed ATA.

 

[283]  The Court will now look at how the events unfolded in that respect.

 

[284] On June 28, 2005, upon receiving the first draft of the ATA219, Malobabic expressed her profound disappointment to O’Connor220 as it was too long, too complex and ambiguous, evidencing that she was reading the legal documentation submitted to her by her then lawyer. It once again contradicts her assertions at trial that she did not

 

 

217 It was not a signed copy but rather an unsigned draft of the ATA.

218 D-26.

219 Sent to Malobabic on June 16, 2005. In his email, O’Connor indicated that this preliminary draft was not yet “tight”. He needed more information from Malobabic.

220 O’Connor had indicated to Malobabic that it was a first draft for her review that “regrettably was not yet tight” because he was still missing information (PDO-69, page 002631).


 

read those legal documents as she was totally oblivious to legal matters given her lack of knowledge of like matters and her poor understanding of the English language. Malobabic wanted a simple 5 to 10-page contract:

This contract is simply unacceptable- it is too long, too complex, ambiguous, it implies that MonRoi has rights on all InnDe's business (not only chess), that MonRoi has access to all InnDe information (not only chess related), it is one way, with no protections built in for InnDe. This disturbed me very much, and I am sure that it will impact MonRoi's results going forward, and our deadline is approaching.

I need a simple, 5 to 10 page contract (Arial 10), to transfer chess related assets (FIDE Contract, Chess Application Software, MonRoi trademark) of InnDe to MonRoi, make sure that I get 1 % royalties, Underlying Technology improvements (if any) belong to InnDe, computer related assets were never mentioned (I can lease from InnDe to MonRoi use of those assets for 12 months with no charge- I do not want to make money on it).

Very disappointing. Please, let me know if you can modify the Asset Purchase (should say Asset Transfer) agreement or I need to hire a law firm to deal with this immediately.

I need to able to rely on my core team, and know that they protect the best interests of MonRoi. It is very simple - making a founder worried makes MonRoi stagnate.

Entrepreneurs establish companies, so they can do something great for the world, not to be continuously pressured, manipulated and harassed. No investor will benefit from 2 weeks spend on contract reviews, and having a key expert irritated.

Brana221

 

[285] Malobabic’s unexpected outburst came as a shock to O’Connor, considering that she asked him a month earlier to reduce substantially his first invoice for the legal services rendered to MonRoi and to instead accept shares into MonRoi. He was going to be a shareholder with Malobabic. He had the interest of MonRoi at heart, how could she doubt his commitment?

 

[286]  O’Connor felt that he had to set the record straight with Malobabic who now wanted a 5 to10-page ATA with Arial 10 font. The Court finds that O’Connor’s following comments attest eloquently to his proper understanding of his role as MonRoi’s lawyer:

Hi Brana:

I am very troubled by your message. It appears that you believe that I am deliberately doing things to harm you and the company, as opposed to doing what I believe is best for you and the company.

Rather than calling me to discuss your concerns in a spirit of mutual respect, you imply that I am either incompetent or malicious, or both. I cannot imagine a

 

 

 

 

221 PDO-69, page 002610.


 

professional that would not be deeply concerned with the tone and content of your message.

If you have the slightest doubt about my integrity or motives to act in the best interests of my clients, particularly you and MonRoi, then please state this view openly, or at least meet with me to discuss the matter. Like you, I consider my reputation and integrity of fundamental importance.

I have always treated you with the utmost of respect. I don't understand why you feel you should not treat me the same way. Differences of opinion can exist; misunderstandings may occur; but all such things should be dealt with respectfully.

There are very good reasons for the Asset Purchase Agreement to be as long and detailed as it is. One is that a transfer of all or substantially all of the business is required to avoid the requirement to pay GST or QST. Another reason to have a complete agreement is for a future public listing. An audit of this asset transfer in the context of a listing that may be worth hundreds of millions of dollars must show that it was a complete deal, appearing to be at arm's length, with no special arrangements.

This does not mean that InnDe cannot keep the assets that it needs, such as the core technology - it can, with whatever protections and assurances are necessary to do this. I am not aware of any other asset that InnDe has that should not be transferred. If there are such assets, then let's discuss them and mention them as Excluded Assets, as the agreement provides for. That was the purpose of sending you the draft - for review and discussion.

If you want a 10-page, 5-page or 2-page agreement, then you can have it. But this may give rise to a more difficult review process at the time of a public offering. Why would we not want to do it more completely now? I am not doing my work to cause you problems, only to advise you and do what you request, once you have been advised.

All of your concerns should and can be dealt with. I understand your frustration, when you have many other things to do. But I would suggest that we meet to review the agreement and respond to all concerns. I strongly suggest that we meet together with Pierre Martel of Stikeman Elliott to have him respond to your questions as well. Pierre is available to meet with us at 6:00 p.m. this evening, or 9:30 a.m. tomorrow.

I am very interested in working with you, MonRoi and InnDe to build great companies and have fun while we do it. But I can't work in an environment of distrust like this. I sincerely hope we can resolve this.

Please let me know how you would like to proceed.

Regards,222 [Emphasis added]

 

 

 

 

222 PDO-69, page 002612.


 

[287] Malobabic simply replied one hour later by asking him if he could create a 5-page ATA and when it could be available223. She just wanted a “simple, short” agreement to present to the investors224 and did not address any of O’Connor’s concerns.

 

[288] By the end of the same afternoon, Malobabic received from O’Connor, for her review and comments, a new 5-page draft of the ATA225.

 

[289] As previously discussed, many drafts226 of the ATA were circulated in July 2005 without reaching a consensus. Stuart, the lawyer for Morisco, in his email of July 27th, 2005, made it clear that the last version proposed by Malobabic was not acceptable to his clients and that it had be modified before its execution by Malobabic:

 

[…] Please be advised that the execution of an Asset Transfer Agreement without correcting these flaws would be considered by my clients to be an act of blatant conflict of interest and a breach of both contractual and fiduciary duties by your client. […]227

 

[Emphasis added]

 

[290] Malobabic did not make the modifications in question but made others without ever discussing the same with the minority shareholders and executed the ATA without providing a signed copy to them for some two years thereafter.

 

[291] They asked repeatedly for a copy of the signed ATA, but to no avail. Malobabic unjustifiably refused under various pretexts to provide a copy of the signed document until August 2007.

 

[292] In her defence, Malobabic testified that the investors228 were duly informed that the ATA had been signed by her on August 8th, 2005 and she produced an email dated September 1st, 2005 addressed to Cousineau and Spirig of InvestorCo in support of her contention229. She claimed that they received the document with that email on that day. But, the document that she attached to her email was an unsigned draft. They were reluctant to simply rely on her word.

 

[293] By the end of August 2005, the shareholders of InvestorCo were attempting to seek a legal opinion from an independent legal counsel (Stikeman Elliott) with respect to the USA and the ATA, not knowing if the latter had been signed or not. Those two

 

 

 

223 PDO-69, page 002615. Similar to other emails emanating from Malobabic, her email sent on July 18, 2005 at 1:10 p.m. was found in an email chain that leaves no doubt in the mind of the Court that she actually sent that email on June 28, 2005 at 1:10 p.m. and not on July 28th.

224 PDO-69, page 002617.

225 PDO-69, pages 002624-002629.

226 PDO-16, D-21 and D-153.20.

227 PDO-68, pages 002219-002221; PDO-69, pages 002770-002772.

228 Without any admissions that they were shareholders of MonRoi.

229 PDO-16.


 

documents were at the core of their dispute with Malobabic that caused the July 28th closing to abort. Stikeman Elliott’s legal opinion was to assist them in their future negotiations with Malobabic.

 

[294] On August 30, 2005, O’Connor sent the latest drafts of the USA and the ATA to Cousineau, Spirig and to their lawyer, Mtre Kevin Kyte (“Kyte”) of Stikeman Elliott, for the purpose of the legal opinion sought by InvestorCo. At the time, O’Connor did not mention that the ATA had been signed by Malobabic for the simple reason that he was personally unaware of it. However, Malobabic was copied on O’Connor’s email and she obviously knew that the shareholders of InvestorCo were seeking an independent opinion from Kyte on these documents. A few hours later, Malobabic chose to notify Walter Spirig and Louis Cousineau230 of the following:

 

Please, note that changes are made to the attached agreements [ATA and USA] after the company consulted an independent legal counsel. I am available any time to discuss it.231

 

[Emphasis added]

 

[295] If changes were being made to the ATA on August 30th and O’Connor, as MonRoi’s lawyer, was only circulating drafts of the two documents, the wording utilized by Malobabic in her email could not lead its recipients to understand that she had already signed the ATA as she subsequently affirmed.

 

[296] Malobabic’s email quite understandably prompted a response from Cousineau, who wrote to her on September 1st, 2005 asking that she identify the changes that she was making to the USA and to the ATA in consultation with an unidentified independent counsel:

As you are aware, a minority shareholder group is reviewing (shortly) with counsel, Mon Roi agreements to better understand the implication of various clauses contain in these documents for minority.

In the event that changes have been made recently (to these agreements) that could be construed as being material and have an impact on minority shareholders, we would greatly appreciate knowing them.

Unfortunately, I'm not available today till later this evening but I would appreciate if you advise Walter Spirig of these changes.

Your ongoing support and collaboration is appreciated,232

 

[297] Again, if the ATA had really been signed on August 8th, why didn’t Malobabic mention it clearly? It would have certainly been relevant for lawyer Kyte to comment on the USA with the final and signed version of the ATA if it really existed at the time, a fact

 

 

230 With O’Connor being in copy of the same.

231 PDO-16.

232 PDO-16.


 

that the Court doubts highly. In fact, the preponderant evidence leads the Court to conclude that, contrary to Malobabic’s affirmations, the ATA had not yet been signed by her at the time given her inexplicable subsequent behaviour on that specific issue. A person acting in good faith would have mentioned such a relevant fact promptly and provided a copy of the signed document. With all due respect, this is another illustration of a behaviour that leads the Court to entertain serious doubts about Malobabic’s good faith throughout this senseless saga.

 

[298] Malobabic claimed that she disclosed to Cousineau and Spirig that the ATA had been executed on August 8, 2005 in her response of September 1, 2005233 in which she indicated that the changes did not affect the minority shareholders’ rights:

Thank you for your e-mail. I welcome your initiative to be advised.

The attached Asset Transfer Agreement was signed on August 8, prior to my trip to Germany.

I received a legal counsel comments, which I worded to fit in the contract due to time constrain. The changes do not affect the minority shareholder rights.

Here are the changes: […]234

[Emphasis added]

[299] In her email, Malobabic simply identified the sections of the ATA where changes had apparently been made without specifying what these changes were nor why she had proceeded to make said changes unilaterally. She also did not provide the previous version to enable them to identify the modifications.

 

[300] Of greater importance, Malobabic chose to attach to her email an unsigned draft of the ATA. There was no proof that it was the final version and that it had been signed on August 8, 2005.

 

[301] If the ATA was really signed, the modifications allegedly made unilaterally by Malobabic were carried out without prior consultation and without the consent of any of the minority shareholders despite Stuart’s notice of July 27, 2005 not to proceed with the unilateral execution of the ATA without making the modifications that he had suggested for his clients235. Under such circumstances, this would constitute another act of oppression.

 

 

 

 

 

 

 

 

233 Omitting to copy her lawyer O’Connor.

234 PDO-16.

235 PDO-68, pages 002219-002221; PDO-69, pages 002770-002772.


 

[302] On September 6th, 2005, Malobabic sent to O’Connor, her  own lawyer, an unsigned version 9 of the ATA “dated as of the 8th day of August, 2005” in pdf format with the sole mention: Subject: AT agr - FYI…236

 

[303] The Court finds it odd, if not indicative, after all the negotiations and the disagreements surrounding certain critical clauses of the ATA with respect in particular to the extent of the technology and the exclusivity of the rights that InnDe would transfer to MonRoi, that Malobabic would refrain from mentioning to her own lawyer in her September 6th email that the ATA had indeed been finalized and signed on August 8th, 2005. Why didn’t she send him a copy of the signed agreement instead of an unsigned draft? Malobabic must have realised, with the recent exchange of emails mentioned above with InvestorCo, that O’Connor was not aware that the ATA had been signed.

 

[304] The signed ATA was once again raised in the letter of demand dated June 7, 2006 sent by the minority shareholders to Defendants via their lawyer Mtre Stephen G. Schenke (“Schenke”)237.

 

[305] On June 20, 2006 at 3:40 p.m., some six months prior to the institution of the present proceedings, Mtre Jonathan Labranche (“Labranche”), acting for Defendants, wrote an email238 to Schenke stating that his client Malobabic was in agreement to provide the minority shareholders with the ATA:

Stephen,

I have discussed with my client the following issues which were raised during our telephone conversation of Yesterday and have agreed as follows:

1.    we will be providing your clients with the Asset transfer agreement tomorrow when the person having access to the agreement will be returning;

2.    I am preparing an undertaking to be executed by your corporate clients and, each of their shareholders pursuant to which they will refrain from issuing or transferring any shares to third parties without having received prior written consent from MonRoi. Upon execution of said agreement, we will be providing your clients with their respective share certificates;

3.    we suggest holding an annual general meeting of shareholders on July 4, 2006. Please advise if your clients will be available said date.

[Emphasis added]

 

[306] Despite her undertaking, the signed ATA was not communicated to the minority shareholders on the following day. It was only disclosed in August 2007.

 

 

 

 

 

236 PDO-69, pages 002855-002863.

237 PDO-9.

238 PDO-10 consisting of an email chain between Labranche and Schenke.


 

[307]  This email triggered the following response from Schenke on the same day at 4:05

p.m. commenting the restrictions that Malobabic wanted to impose on the minority shareholders:

 

I will be meeting the minority shareholders this evening and will encourage moving forward on these issues. I think this would be a good first step. I think the undertaking in no. 2 should be mutual in that we keep the status quo for everyone unless there is consensus amongst all of the shareholders. Would your client agree to this? We should try to maintain the status quo as to shareholdings until the USA is signed. Regards

 

[Emphasis added]

 

[308]  At 4:48 p.m., Labranche answered that Malobabic refused to be bound to the restrictions that she wanted to impose on all minority shareholders:

 

My client [Malobabic] has mentioned that she will not accept restrictions to her ability to transfer her shares. Regards

 

[Emphasis added]

 

[309]  With such an unwavering position by Malobabic, Schenke responded at 5:10 p.m.:

 

Then she shouldn't be requesting restrictions on the minority shares. Its(sic) going to be difficult to sell solutions if there isn't mutual collaboration. I think she should reconsider her position. Regards

 

[Emphasis added]

 

[310] Malobabic refused steadfastly to reconsider her position. Needless to say that her conditional undertaking to provide the minority shareholders with their MonRoi share certificates never materialised.

 

[311] By January 2007, Malobabic had replaced Labranche with lawyer Mtre Patric Besner (“Besner”). In a letter dated January 12, 2007 addressed to Schenke239, Besner indicated that according to Malobabic, his clients (the minority shareholders) had already received the ATA in August 2005 and even got an “electronic copy” on September 1st, 2005. Besner pointed out that he would nevertheless remit a signed copy of the signed ATA at their next meeting to be held with some investors (a meeting that never occurred), provided that those who wanted to have a copy of the signed ATA execute beforehand a Non-Disclosure Agreement (NDA).

 

[312] Why suddenly the new requirement that the minority shareholders sign an NDA before being entitled to receive a signed copy of the ATA if it was the same document (barring Malobabic’s signature) that she had sent to them repeatedly in 2005?

 

 

 

239 D-19.


 

[313] What was suddenly so confidential about this document given that the minority shareholders had supposedly received the ATA before?

 

[314] With all due respect, Malobabic failed to convince the Court in a preponderant manner that she really signed the ATA on August 8, 2005 and that the document was communicated to the minority shareholders soon after. On the contrary, the evidence tends to establish that in all probabilities, Malobabic signed the document later, a fact which in itself is not really important other than to illustrate additional acts of oppression towards the minority shareholders. They were entitled to see if such a crucial agreement for MonRoi (and its shareholders) had really been entered into and to make sure that the agreement was not unduly modified unilaterally by Malobabic which turned out to be the case.

 

[315] Instead, Malobabic persisted with her claim that they had already received the signed document, which was not true. Even two of her lawyers perpetuated the same oppressive manoeuvres on her behalf by promising (again and again) to provide a signed copy, which they failed to do. Then, to add insult to injury, on January 12, 2007, her then lawyer indicated that only the minority shareholders who would accept to sign an NDA would be given access to the signed document. Why create so many hurdles and complications other than to oppress the minority shareholders who were entitled to the document?

 

[316] It is incomprehensible to the Court that Malobabic purposely withheld for some two years the signed version of the ATA from the minority shareholders, including O’Connor, MonRoi’s lawyer at the time, who had requested the same since September 2005. What was the true purpose of Malobabic’s mind-boggling manoeuvres if not to further oppress the minority shareholders?

 

[317]  In any event, it seriously affected her credibility in the eyes of the Court.

 

[318] Given the importance of O’Connor as a “complainant” within the meaning of section 238 of the CBCA, the Court will now examine the evidence surrounding Malobabic’s agreement to grant or award MonRoi shares to O’Connor, a fact strenuously disputed by her throughout the trial. Yet, contrary to her affirmations, the evidence clearly revealed that on more than occasion, Malobabic offered and agreed to remunerate O’Connor with MonRoi shares as a partial form of remuneration for the legal services that he rendered to MonRoi.

 

2.14           O’Connor’s legal fees and his entitlement to MonRoi shares

[319] The Court understands that at the outset, O’Connor did not prepare, nor did he have Malobabic sign a written mandate as the same related to various services including the corporate structure of MonRoi, seeking financing for its future commercial endeavours, trade-mark and patents, drafting commercial contracts, etc., that were evolving constantly with various additional tasks or services requested by Malobabic.


 

While a written mandate is not mandatory, it is highly desirable as it often alleviates, if not deters, potential disputes and misunderstanding between a solicitor and his client.

 

[320] However, the Court is not faced with a situation where Defendants are contesting the quantum or the value of the legal services rendered including the hours spent and O’Connor’s hourly rates throughout his mandate. They are not alleging neither that the legal services were not rendered.

 

[321]  The core of Defendants’ contestation is twofold, as the Court understands it.

 

[322] Firstly, there is the complete and total denial that Malobabic ever agreed to remunerate O’Connor for any portion of the legal services rendered to MonRoi with shares. Confronted to the compelling evidence offered by O’Connor, Malobabic quite reluctantly added that if she agreed to issue such shares (which she strongly denied in any event), such an agreement was nullified when O’Connor executed a contract of employment dated May 30, 2005240 that contained an “Entire Agreement241 (clause 9.5) which superseded any contemporaneous or previous agreements that may have existed between O’Connor and MonRoi.

 

[323] The alleged inexistence of any agreement entitling O’Connor to any shares in MonRoi was therefore preventing him from claiming to be a “complainant” within the meaning of section 238 of the CBCA.

 

[324] Secondly, Defendants are claiming that O’Connor’s professional malpractice, including various ethical breaches ranging from his mishandling of the investments entrusted to him and deposited into his trust account, his failure to properly advise Malobabic in a timely manner on crucial documents and to follow his clients’ instructions, his violation of the solicitor/client privilege, his violation of the Non-Disclosure Agreement242 signed with MonRoi on June 27, 2005, his representing and even advising the investors in the present legal proceedings against his former clients, which also constituted an abuse of process, not to mention his violation of the Securities Act respecting prospectus and licence requirements, have been seriously detrimental to all Defendants and warrant a complete refund of all legal fees paid by MonRoi in 2005-2006 in addition to substantial damages.

 

 

 

240 D-13.

241 Entire Agreement: This agreement together with any schedule or other instrument to be delivered pursuant to this Agreement, constitutes the entire agreement between the Parties and supersedes any and all other prior or contemporaneous agreements, either oral or in writing, made between them with respect to the subject matter of this Agreement. No interpretation, change, termination or waiver of any of the provisions of this Agreement shall be binding upon the Parties unless in writing signed by an officer of the Employer and by the Contractor. No modification, waiver, termination, rescission, discharge or cancellation of this Agreement shall affect the right of either of the Parties to enforce any claim or right not liquidated, which accrued prior to the date of such modification, waiver, termination, rescission, discharge or cancellation.

242 D-13.


 

[325] According to Defendants, the foregoing violations (malpractice and numerous ethical breaches) not only justify amply the condemnation to some $10M in damages sought by corporate Defendants in their cross-demand, without mentioning another $8M sought by Malobabic personally against O’Connor in the Court case number 500-17- 050673-097 previously mentioned, but they also estop O’Connor from claiming any shares in MonRoi.

 

[326] In their plan of argumentation, corporate Defendants claimed that O’Connor’s alleged legal or equitable right to be considered as a security holder of MonRoi was highly unlikely given that:

 

-          the distribution of the MonRoi shares was contingent upon signing beforehand the USA;

 

-          the distribution of the MonRoi shares would have been illegal given that it was a distribution to members of the public243 (without a prospectus); and that

 

-          the MonRoi shares were designated as compensation for legal services that were improperly rendered244.

 

[327]  But, was there an agreement to issue MonRoi shares to O’Connor or not? [328]  The Court answers that question in the affirmative.

[329] According to his time sheets, O’Connor first met with Malobabic at a meeting held on April 5, 2005 in the presence of Furneri to discuss InnDe/MonRoi245 background and Business Plan, as well as fund-raising requirements and the status of current negotiations with potential investors already initiated by Malobabic.

 

[330] On May 20, 2005, when he was to issue his first invoice, O’Connor prepared a draft invoice bearing #2351 in the total amount of $42,307.93246. He testified that he prepared this initial invoice without including his disbursements, as he intended to present it in draft format to Malobabic in person and discuss the terms of payment. It is not unusual for lawyers to proceed in that fashion especially with new clients.

 

[331] The draft invoice #2531 addressed to InnDe covered legal services from April 5, 2005 to May 19, 2005 with 148.46 hours at an hourly rate of $250247, a rate that does not appear excessive, in the opinion of the Court, given O’Connor’s experience.

 

 

 

 

243 As opposed to family and friends.

244 Paragraph 82 of corporate Defendants’ Plan of argumentation.

245 At that time, MonRoi had not yet been constituted.

246 PDO-60, pages 000503-000506.

247 Totalling $38,781.50. This draft invoice included the applicable taxes but not the disbursements incurred until then.


 

[332] O’Connor arranged to meet with Malobabic on the same day to discuss it, a fact denied categorically by the latter. He added that at their meeting, Malobabic had no issues or complaints about his initial invoice. However, given the amount involved, she asked O’Connor if he would be agreeable to accept shares in MonRoi in full payment of that invoice. He replied that he could not accept shares in consideration of a total payment of the same given that he had financial obligations. They agreed that he would reduce his fees to $10,000 from $38,781.50, a reduction of $28,781.50 that would be compensated with MonRoi shares. According to O’Connor, Malobabic found this arrangement very acceptable and she expected his formal invoice to reflect their agreement with respect to the lesser fees while keeping strictly confidential the fact that he would also receive MonRoi shares in lieu of partial payment for his legal fees rendered to May 20, 2005.

 

[333]  The Court understands that as it was not an official invoice, O’Connor did not leave a copy of the same with Malobabic since MonRoi was never expected to pay for the same.

 

[334] O’Connor revised and finalized his draft invoice #2531 that he addressed to MonRoi instead of InnDe, as per Malobabic’s instructions. On the following day, May 21, 2005, O’Connor met again with Malobabic and remitted to her the official invoice #2531 dated May 21, 2005 addressed to MonRoi248 (“Invoice 2351”). The Invoice 2351 reflected the same legal services detailed in the earlier draft version. However, all dollar charges next to the time spent on a daily basis were replaced with the mention “NO CHARGE” and at the end of the invoice, O’Connor inserted: “For all professional services rendered during the period as detailed above: $10,000.00”.249

 

[335] Invoice 2351 reflected the agreement reached the day before with Malobabic to compensate a punctual fee reduction of more than $28,000 with MonRoi shares.

 

[336] At trial, Malobabic denied categorically ever meeting O’Connor on both occasions and having never been shown the $42,307.93 draft invoice and never agreeing to issue MonRoi shares in consideration of a significant reduction in the legal fees. These discussions never occurred, and she never agreed to a reduction of legal fees in exchange for shares in MonRoi. Yet, she added that she did not dispute any of this at the time because “I wanted to encourage O’Connor to close what he started. It was a motivation for him to close on the corporate structure.”

 

[337] Why would Malobabic want to keep O’Connor motivated to perform more legal work? How could she keep him motivated if his fees at the time were reduced by some

$28,000? The only logical and reasonable answer is the issuance of MonRoi shares.

 

 

 

 

 

 

 

 

248 PDO-60, pages 000508-000511.

249 PDO-60, page 000511.


 

[338] Be that as it may, Invoice 2351, totalling $12,515.47 with all disbursements and applicable taxes, was remitted by hand directly to Malobabic by O’Connor with the following cover letter, also dated May 21, 2005250:

Dear Brana,

Please find enclosed invoice for all services rendered to date, pursuant to our discussions yesterday.

Please review the invoice and do not hesitate to contact me to discuss any questions or concerns that you may have.

I trust this is all satisfactory and look forward to a long and enjoyable business relationship.

[Emphasis added]

[339] Malobabic did not respond nor manifest any objections to this letter and to Invoice 2531 that came with it. In fact, a few days later, on May 26, 2005, MonRoi paid to O’Connor most of Invoice 2351 with a $12,500 cheque251, leaving out $15.47.

 

[340] As to the exact number of shares to be issued in his favour, it would be determined later. However, O’Connor pointed out that he was leaving on the table an excess of

$25,000 in legal fees for that period alone. Given that Malobabic had determined that the MonRoi shares were to be sold initially at $50,000 for 1%, he was certainly entitled from the outset to at least 0.5%, being a proportion that would continue to grow with the significantly discounted rate that he was to charge subsequently to MonRoi.

 

[341] A few days later, on May 23rd, O’Connor discussed with Malobabic the O’Connor Family $100,000  investment  in  MonRoi.  As  $5,000  were  missing to  complete  the

$100,000 investment252, Malobabic proposed that O’Connor increases his fees in Invoice 2351 by $5,000 (from $10,000 to $15,000) that would ultimately serve to complete the

$100,000 O’Connor Family investment. MonRoi would pay the same via a revised Invoice 2351 and O’Connor would then remit the $5,000 to the O’Connor Family via his wife Barbara who was managing the funds for their minor children. The $5,000 would subsequently be paid back to MonRoi who was to treat it as part of the O’Connor Family

$100,000 investment. Malobabic’s plan materialized on July 26, 2005.

 

[342] But, on May 23rd, soon after concluding their second verbal agreement, O’Connor sent a new email to Malobabic with a revised invoice bearing a new number (#2532):

Subject: INVOICE

Attachments: Invoice #2532.PDF

Hi Brana:

 

 

250 PDO-60, page 000507.

251 D-56.

252 And O’Connor refused to fund himself the missing $5,000 to avoid any conflict of interest situation as attorney for MonRoi.


 

If this is helpful, here is a revised invoice. It only took a minute to make the change. Thanks and regards,

Dan253

 

[343] Their new agreement was reflected in O’Connor’s new invoice bearing #2532 addressed to MonRoi and issued on May 23, 2005254 (“Invoice 2532”). Invoice 2532, which replaced Invoice 2351, included a $5,000 increase of O’Connor’s legal fees for the same period from $10,000 to $15,000. It covered the same time entries previously found in Invoice 2351, plus two more entries for the services rendered by O’Connor on the 20th and the 23rd of May, bringing the total hours spent since April 5, 2005 to 157.82 hours. The last time entry now read: “For all professional services rendered during the period as detailed above: $15,000.00”.

 

[344] Again, Malobabic did not respond directly to O’Connor’s email of May 23rd. But, there is no doubt that she received Invoice 2532 and accepted the same knowing very well that the extra $5,000 to be paid to O’Connor by MonRoi would soon return to it via the O’Connor Family $100,000 investment.

 

[345] As a matter of fact, on May 26th, Malobabic wrote to O’Connor telling him that “it was great to learn more about your family” and asking him if they could “exchange checks(sic) today or tomorrow?255 Malobabic never objected to the following mention made by O’Connor in his email of June 13, 2005, while working on a draft of the USA:

 

Also, I have to add a clause about the maximum number of direct and indirect shareholders in each investor holdco. We limited Morisco Investments to 15 direct and indirect shareholders. Should we limit Investorco to 25256  direct and indirect shareholders? Note that there are already 17 counting my children and my wife, to whom I will give the shares from the $5,000 "in kind" payment.257

 

[Emphasis added]

 

[346] As previously mentioned, on May 26, 2005, MonRoi issued a cheque made payable to O’Connor for $12,500258, but the balance of $5,766.72 was only paid later with a MonRoi cheque dated July 26, 2005259.

 

 

 

 

 

253 PDO-60, pages 000516-000520.

254 PDO-60, pages 000512-000515.

255 PDO-60, page 000521.

256 This limit was related to the maximum 50 shareholders in a closed corporation such (friends and family exemption from preparing an offering prospectus for start-up companies).

257 PDO-60, page 000523.

258 D-79.19 and D-56.

259 D-79.19 en liasse and D-56. Incidentally, that cheque bore the mention re: Legal Services - Invoice

#2532 23/05/2005.


 

[347] It must be pointed out that the closing with all shareholders of MonRoi was to initially take place in the afternoon of July 26, 2005. In anticipation of the closing, O’Connor wrote this email to Malobabic on July 25th:

Hi Brana:

Subject: AMOUNTS DUE TO ME

Attachments: Invoice #2532.PDF; Bank Statement Re Charges 001.jpg

As we briefly discussed on Friday, here is a summary of amounts owing to me.

1.  The balance of $766.72 on invoice #2532 (attached). You paid $12,500 and we said that $5,000 would be services in lieu of payment, leaving the balance of

$766.72.

2.  The $5,000 (from the above invoice #2532) that will now be paid by me directly to MonRoi (from InvestorCo) in respect of the balance for the $100,000 investments by my wife and children. Mon Roi should give me a cheque tomorrow to include the $5,000 and I will give Mon Roi a cheque from my Trust Account (on behalf of InvestorCo) for the $5,000.

3.  Bank charges of $340 in respect of the 2 wire transfers on May 5th and May 10th (statement attached showing the charge of $170 added in each case).

4.  Monthly compensation of $6,937.00.

I think this is best done by 3 cheques; one for $5,766.72, one for $340.00 and one for $6,937.00. I think the $5,000 should be included with the $766. 72 as it is payment of the balance due on the invoice. I can pick these up tomorrow.

Let me know if you have any questions about this. [Emphasis added]

[348]  Malobabic simply responded on the following morning:

 

Done.260

 

[349] Moreover, as recommended by Stikeman Elliott whose legal advice was sought by Malobabic for tax purposes, the proposed use of the $5,000 to be paid by MonRoi to O’Connor for the O’Connor Family investment required a share transfer agreement (a rollover agreement) to comply with applicable tax provisions. On July 5, 2005, O’Connor emailed to Malobabic the draft Share Transfer Agreement261 that his wife Barbara was to execute with InvestorCo in connection with the $5,000 converted into MonRoi shares for that purpose262.

 

[350] In fact, in his constant endeavours to be transparent towards Malobabic, having been removed by Malobabic from the work on MonRoi corporate structure and on the

 

 

 

260 PDO-60, page 000539.

261 PDO-67, pages 001286-001290.

262 PDO-67, pages 001285-001290.


 

ATA due to unidentified “errors” on the day before, O’Connor sent to Malobabic three Share Transfer Agreements that were destined to regularize the $50,000 investment made erroneously directly into MonRoi by Michael Stearns, the $5,000 paid by MonRoi for in-kind legal services rendered by O’Connor destined to be rolled into the O’Connor Family $100,000 investment and the transfer of 840,000 MonRoi shares from InnDe to InnDe Sub:

 

Attached are the three Share Transfer Agreements (rollover agreements) that I had prepared for the last structure discussed with Stikeman (Chart 2). They might be useful.263

 

[351] Malobabic, who had proposed the $5,000 operation to O’Connor, could not reasonably claim to be unaware that the $5,000 paid by MonRoi on July 26, 2005 was going to serve to supplement by as much the $95,000 O’Connor Family investment into MonRoi and that ultimately the O’Connor Family, as shareholder of InvestorCo, would indirectly hold 3% of MonRoi shares. At the time, Malobabic never raised any objections in connection with that operation proposed by her. Later on, she suddenly considered that O’Connor was in a blatant conflict of interest, prioritizing the interests of his family to the detriment of MonRoi’s interest, a fact that Malobabic failed to establish in a preponderant manner at trial.

 

[352] In any event, not only did Malobabic never raise any objections at the time, but on July 26, 2005, she caused MonRoi to issue a cheque dated July 26, 2005 in the amount of $5,766.72 in favour of O’Connor referring specifically to Invoice 2352264 and in compliance with O’Connor’s email of July 25th:

 

[353] The evidence revealed that on the same day, O’Connor arranged for the $5,000 pay back to MonRoi as agreed upon265.

 

[354] In brief, Invoice 2352 of May 23, 2005 in the amount of $18,266.72 (covering Invoice 2351) was paid by MonRoi to O’Connor as follows266:

 

-          $12,500.00 by cheque dated May 26, 2005 (Subject Legal services); and

 

-          $5,766.72 by cheque dated July 26, 2005 (Subject Legal services).

 

[355] As further evidence of their verbal agreement regarding the issuance of MonRoi shares in favour of O’Connor, Malobabic wrote the following email to him on June 7, 2005 while giving him instructions to incorporate InnDe Sub:

Dan,

 

 

 

263 PDO-67, pages 001285-001299.

264 D-56.

265 PDO-66, page 000942.

266 D-56.


 

Here are some data to complete the structure [of MonRoi]:

I would like to keep 60.5% of shares of MonRoi owned directly by InnDe.

New Sub [InnDe Sub or 427] needs to be incorporated. Roll-over preferred shares of to InnDe tax-free.

2% of New Sub common shares owned by InnDe, for emergency cash to MonRoi.

New Sub Common shares to:  Teresa Furneri +stock option plan Daniel O'Connor + stock option plan

Zeljka Malobabic + no stock option plan Maybe to Dejan Ristic, I do not know Maybe to Yves Durand, I do not know Me.

I invested in InnDe between $200k & $300k. R&D tax credit grants received or receivables by the company are over $200k.

Tony will file the amendment on tax returns, as it seems that my investment in InnDe (shareholder's loan) was presented for 2003 & 2004 fiscal year ends as common shares (and no additional shares were issued to me). I will review 2005 fiscal year end filing, to make sure that my investment is presented in terms of a shareholder loan, and hence I could benefit from tax-free return.267

[Emphasis added]

[356] With respect to O’Connor’s legal fees to be generated for the following four-month period between June 1st and September 30, 2005, Malobabic reached an agreement with her lawyer in virtue of which he accepted to provide further legal services to MonRoi during that specific period at a discounted hourly rate of $86.53268. O’Connor explained that he agreed to this significantly lower hourly rate precisely because of their existing agreement that he would also receive MonRoi shares as part of his compensation for legal services rendered in the previous months. He already considered himself a shareholder but expected the proportion of shares to increase with the additional discounted legal services. In her email dated June 25, 2005 confirming their understanding, Malobabic also praised O’Connor’s contribution as follows:

I truly appreciate your professionalism, expertise and commitment to make MonRoi successful.

It is a pleasure building the company together. This is to confirm:

16 hours I week

 

 

 

267 PDO-67, page 001050; PDO-60, page 000522.

268 Instead of his regular hourly rate of $250.


 

Please, let's schedule at least 1 full day per week in MonRoi's office- Thursday, for example

CAD$86.53/hr + tax

This is $6,937/month (incl. taxes), June, July, August, September, October

I would suggest issuing June's check of $6,937, as we are at the end of the month. Moving forward, maybe biweekly $3,184.

Brana269 [Emphasis added]

[357]  O’Connor responded as follows:

Hi Brana:

Thank you for the offer. This is acceptable.

As we have discussed, I would prefer spending a few hours each day at the Mon Roi offices. However, to be productive I would have to have a computer and Internet access. Do you think this can be arranged? We could also plan on a full day; Thursday is fine, in principle.

Please confirm whether the compensation is for 4 weeks or the full month. I suggest we sign an agreement for a retainer (I have a standard format that I can show you) and then I send an invoice twice a month. Will that work for you?

I am very excited about the company's future and very much look forward to helping the MonRoi Team and our shareholders succeed.

Regards,270 [Emphasis added]

[358]  Twenty minutes  later, Malobabic  replied  that  she  preferred  to use  “MonRoi standard contract for consistency purposes”:

Dan, Thanks.

Regular full-day I week would be better. It is easier to manage, plan & work. Wed, 2pm to 6pm (our weekly).

Thursday, 9am to 6pm (1 hour break). Fri, 9am to 1 pm.

Yves [Durand] is working on Tuesday & Wednesday in my x-office.

Maybe you could use the same office on Thursday (desktop, phone, Internet connection) & Friday.

 

 

 

269 PDO-60, page 000524.

270 PDO-60, page 000525.


 

Let's us MonRoi standard contract, for consistency purposes. I think that $6,937/month is full month for June.

This is $3,468.5/half month271. [Emphasis added]

[359] O’Connor responded “Sounds good to me. Let’s see how it goes.” and finally signed, on June 27, 2005, MonRoi’s standard contract normally used by Malobabic for hired contractors with May 30th, 2005 as the effective date (the “May 30th Agreement272) together with a standard confidentiality and non-disclosure agreement (the “NDA”)273. O’Connor testified that contrary to what was mentioned in Malobabic’s June 25th email mentioned above, this agreement only dealt with the cost of legal services that he was going to render to MonRoi during the four-month period covered by it (and not five), namely June, July, August and September 2005. O’Connor insisted that he never agreed to provide additional legal services for a significantly reduced hourly rate with a differential of some $165 in replacement of their existing agreement regarding the MonRoi shares that were to be issued in his favour for the legal services rendered in the previous months covered by Invoice 2352.

 

[360] The Court agrees with him that such an arrangement, as interpreted by Malobabic, just does not make any sense and, in any event, is contradicted by her own subsequent actions and representations.

 

[361] Again, at all relevant times during the present proceedings, Malobabic always categorically contested O’Connor’s assertion that she agreed to award to him any shares in MonRoi as a result of an inexistent agreement allegedly reached between them or otherwise. However, her denials evolved during the trial.

 

[362] At one point, Malobabic invoked that if such an agreement existed previously (May 20, 2005) with respect to the MonRoi shares, the “Entire Agreement” clause 9.5 of the May 30th Agreement would have automatically superseded and voided any such “inexistent” agreement. Malobabic added that if O’Connor still wanted to rely on the contested verbal share agreement, he could not avoid the legal ramifications of the May 30th Agreement that was binding on him, but that was no longer binding on her (MonRoi). In a nutshell, based on the provisions of the “Entire Agreement” clause, O’Connor was estopped from raising the alleged previous verbal agreement, even if it did not exist.

 

[363] Malobabic made certain that the May 30th Agreement had May 30th, 2005 as its effective date. Then, how does she explain her subsequent email of June 7th mentioned

 

 

 

 

 

271 PDO-60, page 000527.

272 D-13.

273 D-13.


 

above274 in which she clearly indicated that O’Connor would get shares and would be entitled to participate in the ESOP via InnDe Sub?

 

[364] O’Connor reiterated, quite appropriately, that the MonRoi shares already agreed upon in May 2005 were part of his remuneration for the services rendered in April and May 2005, the May 30th Agreement covered exclusively the legal services that he was to render for a limited period of time between June and September 2005. It did not cover the arrangements made for the services rendered in the previous months which entailed MonRoi shares.

 

[365] The evidence revealed that even though O’Connor rendered numerous legal services for MonRoi for the entire duration of the May 30th Agreement that far exceeded the agreed upon monthly fees, Malobabic paid the monthly fees of $6,937 for June275 and July276 2005 only. The Court finds that MonRoi and Malobabic failed unjustifiably to honour their own contractual obligations stemming from the May 30th Agreement for the remaining two months. It is true that on August 3rd, 2005, Malobabic decided unilaterally to tell O’Connor to take the month of August off and that there would be work in September. However, the evidence revealed that Malobabic nevertheless required the services of O’Connor during those two months without ever paying him the agreed upon fees. MonRoi and Malobabic failed  to honour their own basic  obligations towards O’Connor under that agreement.

 

[366] The Court also noted that in an email dated August 31, 2005, Malobabic sent the minutes277 that she had prepared in connection with a meeting held on the same day. She clearly indicated that O’Connor had rendered services in August 2005 and mentioned “that Brana would issue a cheque for the consulting services.” Notwithstanding the foregoing, Malobabic and MonRoi failed to honour their own financial obligations under the May 30th Agreement.

 

[367] Under such circumstances, the Court finds that MonRoi and Malobabic are precluded from invoking and opposing to O’Connor the terms and conditions of an agreement that they violated repeatedly on its most essential elements. In any event, the Court also finds that if O’Connor was bound by the “Entire Agreement” clause, a fact that is not recognized for the reasons mentioned above, Malobabic nevertheless waived the effect of that clause, if any, by subsequently awarding to O’Connor 1% of MonRoi’s common shares in June and October 2005. In other words, the argument stemming from the “Entire Agreement” clause of the May 30th Agreement is moot and must be set aside given her subsequent actions.

 

 

 

 

274 PDO-67, page 001050; PDO-60, page 000522. See paragraph 355 above.

 

275 PDO-60, page 000531.

276 PDO-60, page 000538.

277 D-164.2.


 

[368] Moreover, on July 22, 2005, in anticipation for the upcoming closing, Malobabic asked O’Connor to remove from the closing agenda Point E dealing with “InnDe Sub Issues Shares to Management Personnel278. Until then, it was clearly contemplated that InnDe Sub was to issue MonRoi shares in favour of O’Connor, Furneri and her sister Zeljka Malobabic at the closing. Malobabic wrote:

 

Thanks.

 

Point E we can do another day.

 

Purpose is to close the USA.279

 

[369] If the “Entire Agreement” clause of the May 30th Agreement really precluded O’Connor from claiming any right to MonRoi shares as he was only entitled to $6,937 monthly, why was Malobabic still envisaging awarding him shares in the latter part of July 2005? Her terse email did not indicate that this internal task that covered O’Connor, Furneri and her sister Zeljka was annulled definitely, it was simply postponed to a later date.

 

[370] O’Connor testified that he found that curt email offensive given his extensive efforts to complete the closing for the ultimate benefit of MonRoi (and of Malobabic, of course). He thought that Malobabic was feeling simply overwhelmed with the prospect of the closing finally taking place as discussions regarding the USA and the ATA were becoming particularly more difficult. In any event, he brushed it off believing that Malobabic was acting in good faith. O’Connor thought that it was simply postponed, not knowing that five days later Furneri, who was also to receive MonRoi shares, would be summarily fired without any prior warning with a simple email also addressed to Durand.

 

[371] As a matter of fact, the day of the re-scheduled closing with the minority shareholders on July 27, 2005 at 11:37 a.m., Furneri and Durand280 were both fired summarily from MonRoi by Malobabic with the same email addressed to both of them, with a copy to O’Connor who had not been consulted beforehand nor anyone else among the minority shareholders:

 

Subject: MonRoi Contract Termination

 

It is unfortunate that I have to terminate the MonRoi contracts today.

 

Yves Durand281, your contract with MonRoi is terminated, effective immediately.

 

 

 

278 PDO-68, page 002012.

279 PDO-68, page 002014.

280 Durand being also one of the shareholders in Morisco having invested himself $50,000.

281 With respect to Yves Durand, he was not only one of the investors within Morisco, but he was also part of the Morisco Financial Agreement which provided for his temporary employment by MonRoi for a period of six months with a remuneration of $6,000 per month paid in advance by Morisco with its

$536,000 investment The $36,000 covering Yves Durand’s salary for those six-months.


 

Teresa Furneri282, your contract with MonRoi is terminated, effective immediately.

 

Brana283

 

[372] These sudden and unexpected dismissals decided unilaterally by Malobabic a few hours before the long-awaited closing just served to exacerbate even more the relationship between her and the minority shareholders and their growing mistrust towards her.

 

[373] Be that as it may, to this day, O’Connor never received his agreed upon monthly consulting fees for August and September 2005 pursuant to the May 30th Agreement. He argued rightfully that through her actions and omissions, Malobabic effectively terminated the May 30th Agreement and could no longer rely on the same for anything other than the monthly consulting fees that MonRoi actually paid to him for June and July 2005.

 

[374] Back to the MonRoi shares, Malobabic seemed to ignore her own email of September 26, 2005, in which she wrote the following message to O’Connor:

I hope that you had a nice weekend.

I am updating MonRoi cash-flow. Overall, our expenses are lower then(sic) projected. However, professional services are much higher. I would like to clarify the bill from Stikeman Elliott- what is the amount.

Instead of cash for September and due to your support in the last 6 months284  I would like to assign you 0.5 (zero point five) shares of MonRoi - through InvestorCo.

It would be expected some basic help with FIDE answer (to review response, if needed) & to issues shares (at no charge to MonRoi). This would take max a week of work.

Please, let me know if that would be fair.285 [Emphasis added]

[375] By offering 0.5% MonRoi shares, Malobabic was modifying unilaterally the terms and conditions of the May 30th Agreement with respect to the consulting fees to be paid to O’Connor for the month of September 2005.

 

[376] The Court cannot help but keep in mind that her offer for MonRoi shares was made after the collapse of the scheduled closing at the end of July 2005 and after Malobabic had unilaterally removed O’Connor from most, if not all, work related to MonRoi corporate structure (InnDe Sub), the USA and the ATA. In late July 2005, as she had retained the

 

 

282 The Court understands that Teresa Furneri was closely involved with MonRoi since 2004 and that she was considered to become its Chief Operating Officer or another senior position.

283 PDO-67, page 001524.

284 Obviously, at the time, Malobabic was not relying on the Entire Agreement clause 9.5 of the May 30th Agreement…

285 PDO-60, page 000541.


 

services of other lawyers due to O’Connor’s “professional errors and conflict of interest”, not to mention his alleged unacceptable aggressive behaviour at meetings with investors from April 2005 and thereafter, where he apparently excelled at unnecessarily alienating and antagonizing the other parties and transgressing repeatedly her instructions.

 

[377] Yet, in September 2005, she offers MonRoi shares to O’Connor in compensation for his legal work performed in September 2005.

 

[378] Under such absolutely horrific circumstances and behaviour from O’Connor and with the benefit of other lawyers handling MonRoi’s legal affairs, why would Malobabic even consider having him back in MonRoi in September 2005? Even more mind-boggling, why would she offer to “assign” to him MonRoi shares in late September 2005, “due to your support in the last 6 months?”

 

[379] Thanks to the “Entire Agreement” clause, Malobabic was able to claim that her previous agreement with O’Connor respecting the MonRoi shares was no longer in force. And now, she was reopening the same door to O’Connor. Why could she possibly want O’Connor as a shareholder of her company with all his major flaws and faults?

 

[380] With all due respect, the countless contradictions between Malobabic’s testimony throughout the trial and her actions and written statements at the time are not only simply mind-boggling but also affected substantially her credibility in the eyes of the Court.

 

[381] In any event, O’Connor testified that he felt insulted by the content of Malobabic’s September 26, 2005 email. He considered that based on their May 20th verbal agreement with respect to Invoice 2351 converted to Invoice 2352 with him foregoing more than

$28,000 in legal fees for April and May 2005 alone, he was already entitled to 0.5% of MonRoi shares286. With all the concessions already granted regarding his remuneration for the legal services rendered subsequently, he considered that he was certainly entitled to a greater percentage.

 

[382] Malobabic’s September 26th email triggered additional discussions with O’Connor that led to another agreement concerning the shares.

 

[383] On October 5, 2005, the two met in a tense atmosphere, according to O’Connor, but they ultimately managed to reach an agreement with respect to MonRoi shares (1% of MonRoi shares) and to O’Connor’s subsequent involvement with MonRoi.

 

[384] Immediately after the meeting, O’Connor wrote the following email to Malobabic at 2:32 p.m. to confirm his understanding from their discussions and the agreement they had reached on that occasion:

Hi Brana:

Subject: OUR AGREEMENT

 

 

286 Based on a purchase price of $50,000 for 1%.


 

Again, thank you for the meeting this morning. I am pleased that we have come to an agreement that will permit us to move forward together, hopefully in a long and mutually beneficial relationship.

As compensation for my contribution to the company from the time we met until now, in addition to the fees that have been paid to date, my understanding is that we have agreed I will be given 1 % of the common equity of MonRoi plus 4% of the equity in the next business venture of InnDe to exploit its technology. This latter component will be kept confidential. I assume that I will be given the 1% of MonRoi equity at the same time as shares are issued to all other shareholders.

Please let me know without delay if I have misunderstood that agreement.

Going forward, I will go with you to Argentina next week to meet with the senior representatives of FIDE, primarily to discuss the DGT contract situation and as a follow-up to our detailed letter to FIDE on this subject. Following that trip, we will discuss whether, or under what arrangements, I will continue to work with Mon Roi. This morning, I reiterated my desire to do so287.

I hope the foregoing is an accurate reflection of our discussion. As mentioned, please let me know if I have misunderstood something.

I am confident that together we can build an exciting and prosperous future for all members of the MonRoi family and the global chess community.

Best regards,

Dan288

[Emphasis added]

[385] Malobabic never responded to that quite comprehensive email concerning the MonRoi shares that she agreed to award to him. She never signified her disagreement with O’Connor’s understanding of the agreement that they had just reached until the trial…

 

[386] The Court also retained from the foregoing that O’Connor was clearly not out of MonRoi and that Malobabic still wanted him to work with her at upcoming meetings in Quebec City to secure a grant from the Quebec government and in San Luis, Argentina, for further crucial negotiations with FIDE in connection with the impasse with the FIDE MOU.

 

[387] A few minutes before receiving O’Connor’s email, Malobabic confirmed to him that reservations had been made in his name for the San Luis voyage289. Six minutes after sending his email confirming their agreement, O’Connor wrote to Malobabic about a

 

 

 

 

287 The Court understands that the parties had also discussed O’Connor becoming the Chief Operating Officer of MonRoi (“COO”), a position that had been forecasted since the beginning but never fulfilled until then.

288 PDO-60, page 000542.

289 PDO-60, page 000543.


 

spelling error in his name that may have an impact on his visa application for Argentina290. A few minutes later at 2:51 p.m., Malobabic confirmed that instructions had been given to correct the spelling error without making any mention or comments about their agreement which involved O’Connor accompanying Malobabic to Argentina and to Quebec City291.

 

[388] At 3:06 p.m. on the same day, Malobabic wrote to O’Connor about the fees that she expected him to charge MonRoi in connection with the Quebec City and the San Luis trips at the following discounted rates determined on the budgeted salary of MonRoi’s future COO:

Dan,

Subject: Technology Showcase at 3pm [in Quebec City] We succeed(sic) to move the Quebec City meeting to 3pm. Let's leave Montreal tomorrow at 11am or earlier.

We should be at CRIQ (15 minutes from the office) at 11:15am, and leave our (or Michel's292 car) there.

Could you please pick me up? Maybe you could drive? Or Michel.

MonRoi will compensate for the car gas.

I would like to confirm that your trip to Quebec City will be compensated by MonRoi as 1- full day of work of MonRoi's projected salary for the COO: $366

Also, this is to confirm that your trip to Argentina will be compensated by MonRoi as one full week of work of MonRoi's projected salary for the COO - $2000.

Brana293 [Emphasis added]

[389] Again, Malobabic’s email did not dispute any of the elements of the agreement set out in O’Connor’s earlier email. At 3:30 p.m., O’Connor replied that the financial arrangements for the two trips were acceptable, understanding that all out of pocket expenses would also be reimbursed to him294.

[390] By October 5th, 2005, the period covered by the May 30th Agreement had elapsed without Malobabic ever paying the agreed upon fees to O’Connor for the remaining two months (August and September 2005). Clearly, on that day, Malobabic had negotiated and convened with him of different terms of remuneration for the future, commencing in October 2005 on the basis of fees equivalent to an hourly rate of $46. O’Connor confirmed that this hourly rate was determined with the remuneration of MonRoi’s future COO that

 

 

290 Idem.

291 PDO-60, page 000544.

292 Michel Éthier, the consultant hired by MonRoi in connection with the grant application.

293 PDO-60, page 000545.

294 PDO-60, page 000546.


 

the investors expected Malobabic to hire, given the fact that it had been budgeted in the 18-month Cash-Flow Forecasts submitted initially to them. Malobabic and he had agreed that using the COO’s forecasted salary as a measure for his upcoming professional services would not be burdensome for MonRoi as it was exactly in line with the salary budgeted for a COO, a position that O’Connor wanted to fill in the near future. Again, O’Connor was mainly motivated to accept this significantly reduced form of remuneration based on his firm trust in Malobabic’s word and his expectation that he was receiving shares in MonRoi (at least 1%) in partial compensation for his various services rendered and to be rendered.

 

[391] It is also quite obvious, in the opinion of the Court, that O’Connor had also discussed at the time with Malobabic the prospect for him to work longer hours for MonRoi as its COO. Otherwise, there was no logical reason to align his fees on the COO’s budgeted remuneration. Relying on the fact that none of this was ever documented in any writing bearing her signature, Malobabic steadfastly denied at trial that she had ever contemplated hiring O’Connor as MonRoi’s COO nor awarding him any shares in MonRoi.

 

[392] As a matter of interest, in Quebec City, Malobabic used PowerPoint slides that showed that O’Connor was part of MonRoi’s management in charge of “Legal Affairs295.

 

[393] O’Connor also noted that in that presentation, InnDe Sub was no longer present in the MonRoi corporate structure. However, the shares to be held by InvestorCo in MonRoi had been increased from 13.5% to 14.5%296, giving credence to his assertion that prior to the trips to Quebec City and to San Luis, Malobabic had effectively agreed to give him 1% of MonRoi’s common shares via InvestorCo (and no longer via InnDe Sub)297. The Court understands that O’Connor was not instrumental in the preparation of this PowerPoint presentation, the document emanated from Malobabic.

 

[394] In summary, other than confirming O’Connor’s presence and compensation for her two upcoming trips commencing on the following day with Quebec City, Malobabic never responded to nor disputed O’Connor’s October 5th email setting out the particulars of his understanding of their agreement concerning the 1% MonRoi shares attributed to him.

 

[395] O’Connor insisted that without that agreement respecting the 1% of MonRoi shares plus 4% of the equity in the next business venture of InnDe to exploit its technology, not to speak of him likely assuming the position of COO in the near future, he would have never accepted to travel to Quebec City and then to Argentina for a whole week for an amount equal to the budgeted salary of a COO representing roughly $46/hour as opposed to his standard rate of $250. He pointed out that with the agreed upon lump sum payment of $2,000 representing his remuneration for the upcoming trip to Argentina, he accepted to be paid on the basis of an hourly rate of $46 for less than 44 hours of work

 

 

295 PDO-60, page 000562.

296 PDO-67, page 001603; PDO-60, page 000563.

297  In her September 26th  email to O’Connor, Malobabic had offered to O’Connor 0.5% shares via InvestorCo, “for his support in the last six months


 

during a seven-day period. The MonRoi shares attributed to him made this financial sacrifice worthwhile. The Court is convinced that at the time, Malobabic did not give O’Connor any indications that his understanding of their latest MonRoi share agreement was inaccurate. She definitely needed his services for the upcoming meetings (surprisingly despite his so-called huge professional flaws and faults) and wanted him to go along with her plans.

 

[396] At trial, confronted to O’Connor’s email describing in detail the agreement that they had reached on October 5th, 2005 with respect to the MonRoi shares, Malobabic denied again the existence of any such agreement. In fact, she tried to dissociate herself from the content of that email and finally resorted to the feeble argument that despite the email’s title “Our Agreement”, there was no need for her to reply because it was not “MonRoi’s Agreement”. The email only reflected an agreement that was solely in O’Connor’s mind. In her view, as the content of his email did not reflect MonRoi’s understanding and position on that subject, who therefore was not bound by it, there was no need for her to respond to O’Connor that he had misunderstood an agreement that was in reality “inexistent”.

 

[397] With all due respect, the Court does not give any credence to such arguments that appeared to have been concocted by Malobabic during her testimony to extricate herself from undeniably evident facts to which she was repeatedly confronted.

 

[398] The evidence convinces the Court that in October 2005, O’Connor agreed to a newly revised form of monetary remuneration based on their existing agreement that he would receive, inter alia, 1% of MonRoi shares. The Court also believes that Malobabic and O’Connor had agreed to pursue their discussions regarding his future involvement in MonRoi as its COO upon their return from Argentina. This explains why he accepted to reduce his remuneration significantly on the basis of the budgeted salary of the COO in the financial forecasts of MonRoi.

 

[399] On October 12, 2005, Malobabic left for San Luis with O’Connor to pursue critical negotiations with FIDE regarding the FIDE MOU, since according to Malobabic, the latter had allegedly failed to promote MonRoi’s products since May 2005 in violation of their agreement. But in May 2005, the MonRoi products were not even ready to be commercialised. The evidence revealed that this meeting with FIDE was highly anticipated by all minority shareholders as it was crucial for MonRoi’s future financial success, just as it had been represented to them by Malobabic from the outset.

 

[400] The news coming from Argentina were very positive and the minority shareholders were anxious to meet with Malobabic and O’Connor. Malobabic and O’Connor flew back from Argentina on October 18, 2005 with a meeting already scheduled for October 20th, 2005 in the afternoon with all minority shareholders. An Addendum to the FIDE MOU had been negotiated between O’Connor and the FIDE lawyer (Morten Sand) and had been completed at the airport upon their departure for Canada. All that remained was for both boards of directors to approve it before proceeding to its execution.


 

[401] The Court will discuss more fully the San Luis meeting with FIDE and its aftermath with the minority shareholders in the following chapters.

 

[402] On the day following the October 20, 2005 meeting, Malobabic sent an email to the representatives of InvestorCo and of BEC who had remained until the end of that meeting that turned out to be disastrous298. Her email contained what she described as the minutes that were taken of that meeting to which O’Connor only joined towards the end, at Malobabic’s specific request, to provide a one-hour report to the minority shareholders on the San Luis meeting with FIDE, a report that he never delivered. Of great interest for the purposes hereof, Malobabic’s minutes contained the following mention:

 

Brana thanked to Dan O'Connor for helping her with San Luis meeting, where his professionalism and dedication added value to MonRoi. Dan was awarded with 1% of MonRoi common share for his 9-months achievements, through InvestorCo. Brana confirmed that this does not dilute299 minority shareholders.300

 

[Emphasis added]

 

[403] O’Connor was not present at the meeting when Malobabic made these favourable comments about him. However, he was pleased to finally get a public acknowledgment of their agreement despite that from the outset, they were to proceed via InnDe Sub and not InvestorCo because proceeding with the issuance of his shares through the latter holding company would have the effect of diluting the other minority shareholders, contrary to her own affirmation. In his view, this was finally the confirmation of their verbal agreements made on May 20, 2005 and on October 5, 2005. He felt that they were moving forward and he wanted to make it work. In any event, getting his shares through InvestorCo was good enough for him and he did not want to derail the already fragile equilibrium by making any comment that would cause Malobabic to change her mind.

 

[404] Confronted time and time again at trial to her minutes of the October 20, 2005 meeting, Malobabic developed during her testimony the novel argument that she only agreed to “give” to O’Connor 1% common shares in MonRoi conditionally upon the latter being actively instrumental in closing once and for all the USA with the minority shareholders301. Malobabic added that this “gift” had nothing to do with O’Connor’s prior legal services, an affirmation that was contradicted by her own words in her October 20th email. [Emphasis added]

 

 

 

298 With a copy addressed to O’Connor. The representatives of Morisco stormed out of the meeting upon discovering that Malobabic refused to provide any information concerning San Luis unless each and every one in attendance would sign beforehand a “Warranty Agreement” that no one had ever seen before. Taken by surprise, they refused to sign and left.

299 In order to avoid the dilution of the minority shareholders, O’Connor’s 1% shares had to come from InnDe’s own shares held in its subsidiary InnDe Sub not via InvestorCo.

300 PDO-60, pages 000565-000566.

301 Despite that she had removed him from those negotiations in July 2005.


 

[405] O’Connor testified that the notion of his MonRoi shares being a conditional “gift” was never raised in his presence nor was it ever discussed with him at the time. It only came up for the very first time late into the trial.

 

[406] At one point during her testimony, Malobabic resorted to this unbelievable excuse to counter in all likelihood her “damaging” statement found in her October 20, 2005 minutes and to justify the legitimacy of her refusal to issue the 1% shares to O’Connor. She also affirmed that he had failed to realise the aforesaid condition that was essential to enable him to benefit from that so-called “gift”.

 

[407] Then, Malobabic changed her story and abandoned the condition. She now considered that MonRoi was under no further obligations in that regard as O’Connor had apparently refused her “gift”, in circumstances unknown to all, even to O’Connor himself.

 

[408] In any event, Malobabic’s novel argument must be dismissed. Firstly, nothing in the evidence supported such an assertion introduced for the very first time some 13 years after the fact302. In any event, if the 1% of MonRoi shares were a “gift” to O’Connor that was strictly conditional upon him closing the USA with all minority shareholders, why wasn’t he invited by Malobabic to attend the October 20th meeting at the time when that subject was on the agenda? It just does not make any sense for Malobabic to keep O’Connor away from the meeting if he was allegedly expected to be involved actively on that very sensitive issue. Moreover, the minority shareholders had requested to hear his report of the San Luis meeting with FIDE, a report that apparently Malobabic did not want him to deliver as will be seen later.

 

[409] With all due respect, in light of the minutes of the October 20, 2005 meeting303 prepared by Malobabic that contradict completely her own testimony in that regard, her latest argument is simply ludicrous and completely devoid of any credibility.

 

[410]  But there is more…

 

[411] At the end of the trial, Malobabic testified in the context of the counter-proof offered by the corporate Defendants on their cross-demand. She took the opportunity to invoke for the very first time that the minutes of the October 20th meeting reflected in her October 21, 2005 email, emanating undeniably from her, were minutes that had been drafted by her sister Zeljka and not by her. She added that it unfortunately contained several errors that she had failed to correct prior to sending her email to Elio Tuccinardi, Walter Spirig, Louis Cousineau and to O’Connor himself. Of course, the mention of the 1% MonRoi shares awarded to O’Connor and the reference to his 9-month achievements were among the errors made by her sister Zeljka. In other words, Zeljka seriously misunderstood her sister’s comments and misrepresented them in the minutes if of course, Zeljka really wrote the same, a fact that the Court does not believe.

 

 

 

302 It was never even alleged in the written contestation that was even amended during the trial.

303 PDO-60, pages 000565-000566.


 

[412] The Court does not believe Malobabic’s last ditch effort to disavow one of the numerous damaging and self-incriminating statements or writings that she made herself since April 2005 that contradict completely her testimony.

 

[413] In any event, if that fact was true and that she never intended to award shares to O’Connor as stated therein, why didn’t Malobabic issue a correction soon after to dispel this major misunderstanding? The answer to that question is that this part of her October 20th minutes about O’Connor was true until it became more convenient for Malobabic to disavow the same.

 

[414] If Malobabic never agreed to award MonRoi shares to O’Connor, the Court cannot help but notice that on or about October 26, 2005, a few weeks after the October 5th meeting, Malobabic sent to Walter Spirig a “Warranty Agreement” that she expected him to execute as one of the shareholders of InvestorCo to be entitled to MonRoi corporate secrets. This document, not seen nor prepared by O’Connor, contained a listing of all InvestorCo’s shareholders and O’Connor was not only listed as one of its shareholders but his name did not appear as a shareholder of the O’Connor Family (6384331 Canada Inc.). The Court understands that this document dated October 25, 2005304 emanated from Malobabic or was drafted on her instructions. She was clearly acknowledging that O’Connor was a shareholder of InvestorCo as she previously announced on October 20th.

 

[415] Finally, to close on that particular subject, on October 26, 2005, O’Connor issued invoice #2578 to MonRoi pertaining to the Quebec City and the San Luis trips totalling

$2,721.49305. MonRoi paid him with a cheque bearing the same date306. It is worth mentioning that all other cheques paid to O’Connor in connection with his previous invoices bore the subject matter of “Legal Services”. This time, the cheque signed by Malobabic indicated “Business Services”. Had their legal relationship converted to a business relationship?

 

[416] In conclusion, there is no doubt in the opinion of the Court that Malobabic agreed on October 20, 2005 to award 1% of MonRoi shares to O’Connor via InvestorCo in partial compensation “for his 9-months achievements” and for his legal work and help during their meeting with FIDE in San Luis where “his professionalism and dedication added value to MonRoi.”

 

[417] The Court also finds that nothing in the evidence adduced at trial could lead it to conclude that O’Connor’s subsequent behaviour caused him to forfeit in any manner whatsoever his entitlement to 1% of MonRoi shares on the day of the filing of the Motion in Oppression Remedy and thereafter. As previously mentioned, the fact that he may have been entitled to the 1% shares via InnDe Sub at the outset, and not through InvestorCo, does not deprive him of his entitlement.

 

 

 

304 PDO-68, page 002547.

305 PDO-60, page 000575.

306 D-56.


 

[418] In his Motion in Oppression remedy, O’Connor also alleged, as one of the acts of oppression to the minority shareholders, a vital misleading statement made by Malobabic concerning MonRoi’s relationship with FIDE.

 

2.15           FIDE - A Vital Misleading Statement

[419] The Investment Fact Sheet that was drafted by O’Connor was based on the information (documents307 and discussions) provided by Malobabic in April 2005, including a PowerPoint presentation308 and MonRoi’s Business Plan309. The Business Plan came with an Executive Summary, which contained the following statements noted by the Court:

InnDe has secured the market through an IP strategy and an exclusive 10-year contract with FIDE** - World Chess Organization (recognized by the International Olympic Committee). FIDE is actively working with InnDe promoting MonRoi systems, which will generate revenues in the very short-term.”

[…]

FIDE and its members in the established chess organizations (in 140 national markets) will market MonRoi's products exclusively through their web-sites, magazines and on tournaments (more than 10,000 I year worldwide).

[…]

InnDe has:

Secured a 10 year exclusive contract with FIDE the World Chess Federation to supply MonRoi to chess players globally

[Emphasis added]

[420] However, evidence revealed that FIDE stopped marketing MonRoi products in May 2005310. This was a crucial information that came from the following statement made by Malobabic in her email of May 11, 2006, a year after her presentations to the potential investors:

MonRoi Marketing:

FIDE leadership did not market MonRoi since May 2005, thus failing to respect its agreement with the Company. Legal claim can be put forth at any time. The

 

 

 

307 PDO-63, page 000664-000677

308 Containing the following statement: “InnDe closed an exclusive10-year contract with FIDE 140 Chess Federations - InnDe’s distribution channel” and “FIDE - MonRoi products planned to be mandatory” with projected sales to exceed $420M in 4 years (PDO-63, pages 000673-000674).

309 PDO-63, pages 000685-000735 containing the following representation: “InnDe has secured the market through an IP strategy and an exclusive 10-year contract with FIDE** - World Chess Organization (recognized by the International Olympic Committee). FIDE is actively working with InnDe promoting MonRoi systems, which will generate revenues in the very short-term.” Evidence revealed that FIDE stopped marketing MonRoi products in May 2005 (D-158.1).

310 D-158.1.


 

company will evaluate alternative marketing options- global distribution, direct sales, and working with the USCF & the ECU chess entities.

[…]

[421] The fact that “FIDE leadership did not market MonRoi since May 2005” was a crucial information, in the Court’s opinion, that should have been disclosed to the investors at the May 11, 2005 investors meeting. It does not appear to be so.

 

[422] Clauses 14 and 15 of the Investment Fact Sheet311 distributed to the potential investors were inaccurate:

14.  Following this tournament [in Montreal in January 2005], FIDE gave formal Certification to use the ECM to replace pencil and paper at all FIDE- sanctioned tournaments.

15.    FIDE has now mandated the reporting of the results of all chess tournament games in electronic form within 30 days of the end of each FIDE- sanctioned tournament. This can be accomplished by either typing into a computer all hand-written score sheets (a very onerous and expensive task with thousands of score sheets), or by using the ECM [PCM].

[Emphasis added]

[423] O’Connor testified that it was crucial that all statements made in the Investment Fact Sheet and in the Executive Summary to be distributed to the potential investors be true and accurate as they were to rely on the same. Due to the urgency for MonRoi to secure the funds necessary to begin manufacturing its PCM for the August 2005 Dresden presentation, O’Connor’s time was limited to perform additional research on the FIDE situation. He insisted that Malobabic assures him that the statements made therein were indeed true. It was her Business Plan after all, and he assumed it was up to date and reflected the current status of MonRoi’s relationship with FIDE, otherwise why would she provide him such documents (PowerPoint and Business Plan) to prepare the Investment Fact Sheet? In any event, the preponderant evidence led the Court to conclude that Malobabic saw, reviewed and approved the Investment Fact Sheet before it being released to potential investors to the second investors meeting of May 11, 2005.

 

[424]  On May 3, 2005, O’Connor wrote the following message to Malobabic:

Subject: POTENTIAL INVESTORS' PROPOSAL AND FACT SHEET

Attachments: Investor Fact Sheet v3.doc; Private Investors Proposal 050305.doc Hi Brana:

In preparation for next week's meeting, I have updated the attached Proposal and prepared a "fact sheet" for potential investors. It might be useful to distribute this now to friends of the management team to give some preliminary information to make the presentation more valuable to answer questions and to

 

 

 

311 PDO-4.


 

provide information to potential investors who might not be able to make it to the meeting next week. I know of 2 that will be away that day.

Please review these as soon as you get a minute, especially the fact sheet to confirm that all statements are true. I do not have independent verification of some facts, like 10,000 tournaments each year  and 7.5 million FIDE members.

Please let me know what you think. Thanks,

[Emphasis added]

[425] Malobabic did not reply to this email but O’Connor testified that as he had not found any backup material for the statement, especially in clauses 14 and 15 dealing with FIDE, he asked Malobabic to verify the same and he relied upon her verbal assurances. Furthermore, as this document was distributed to the persons who attended the second investors meeting of May 11th in Malobabic’s presence, O’Connor concluded that she necessarily had to be in full agreement with its content as she was using it to induce potential investors to invest into MonRoi with the business relationship between MonRoi and FIDE being her biggest selling point.

 

[426] The evidence revealed that the Investment Fact Sheet312 contained erroneous and misleading statements concerning FIDE.

 

[427] Despite that the document was submitted to Malobabic’s prior review and approval, the latter, who had negotiated the agreement with FIDE before O’Connor becoming involved, had to be fully aware that such statements were inaccurate if not false. Yet, she never attempted to correct the same prior to releasing it to the potential investors together with the Executive Summary313.

 

[428] With statements such as the FIDE MOU giving InnDe/MonRoi a 10-year exclusive right to market the ECM (PCM) in all FIDE-sanctioned tournaments with an obligation by FIDE to promote the ECM (PCM)314, FIDE having given its formal certification to use the ECM at all FIDE-sanctioned tournaments315 and FIDE about to mandate the reporting of the results of all chess tournament games in electronic form within 30 days of the end of each FIDE-sanctioned tournaments316, it could very well be interpreted by the potential investors (and by O’Connor) that MonRoi was about to sell millions of PCMs (formerly ECM). Incidentally, the Cash-Flow Forecasts that were included with MonRoi’s Business Plan were used by O’Connor in his preparation of the Investment Fact Sheet and of the Executive Summary remitted to the potential investors. Those forecasts could only give

 

 

 

 

312 PDO-4.

313 PDO-8.

314 Paragraph 10 of the Investment Fact Sheet (PDO-4). 315 Paragraph 14 of the Investment Fact Sheet (PDO-4). 316 Paragraph 15 of the Investment Fact Sheet (PDO-4).


 

more credence to the misleading statement made by Malobabic concerning MonRoi’s relationship with FIDE.

 

[429] The Court has already mentioned that the financial forecasts elaborated by Malobabic appearing in the Executive Summary of MonRoi’s Business Plan317 revealed forecasted sales for the PCM alone totalling $572,445,000 between 2005 and 2009 and sold  subscriptions  to  gain  online  access  to  the  World  Databank  of  Chess  of

$27,765,000318.

 

[430]  Such impressive financial figures mirroring anticipated revenues in excess of

$600M in revenues could only find a reasonable explanation in the fact that FIDE’s mandated the reporting of the results of all chess tournament games in electronic form within 30 days of the end of each FIDE-sanctioned tournament was, to all intents and purposes, a fait accompli.

 

[431] Given the FIDE MOU that provided InnDe (MonRoi) with a 10-year exclusive right to market the PCM [ECM] for use in all FIDE-sanctioned tournaments319 and FIDE agreeing to market MonRoi certified products, potential investors, including O’Connor, could conclude that in all likelihood they were being offered access to a veritable gold mine.

 

[432] At all relevant times, Malobabic never made any attempts to correct the significant misleading representations in the Investment Fact Sheet. She could not ignore the fact that her representations were bound to create among the investors a reasonable expectation that MonRoi’s relationship with FIDE was not only absolutely crucial to the new company’s financial success, but it was also practically a fait accompli.

 

[433] At trial, Malobabic chose to blame severely O’Connor for such misrepresentations, accusing him of incompetence and gross malpractice as she blindly relied upon his advice and expertise. According to her, it was up to O’Connor, as her lawyer, to present in a truthful manner the relevant information in the Investment Fact Sheet and the Executive Summary with the assistance of the various documentation that had been provided to him beforehand. She could not be personally blamed for O’Connor’s failure to properly understand the information contained in the documents that she had provided to him in the context of his mandate.

 

[434] This is one of the many examples where Malobabic contradicted herself. Throughout her testimony, she did not miss any opportunity to depict O’Connor, among other things, as grossly incompetent in the legal field, but more importantly, he was totally incompetent on matters involving the international chess market for his total lack of knowledge thereof. Under such circumstances, wasn’t it appropriate for Malobabic to

 

 

 

317 Used by O’Connor to prepare the Investment Fact Sheet.

318 Paragraph 89 of the present judgment.

319 Another representation found at paragraph 10 of the Investment Fact Sheet (PDO-4).


 

review carefully the documents prepared at her own request by a person (O’Connor) who was allegedly incompetent and lacked the proper knowledge of the chess market?

 

[435] In any event and with all due respect, the Court does not believe the testimony of Malobabic that she did not review those documents. The preponderant evidence leads the Court to conclude that she was aware of the major misrepresentations contained in the Investment Fact Sheet that could only induce potential investors to invest in her company. And, if things were to go south, she could blame her lawyer for his professional incompetence as she would claim to have blindly relied on his legal advice.

 

[436] Given the misleading representations made to the potential investors who ultimately believed Malobabic and entrusted her with more than $1.4M, the Court is not surprised that in their view, MonRoi’s and Malobabic’s relationship with FIDE was absolutely crucial, if not fundamental, for MonRoi’s Business Plan to realise itself within the 5-year timeframe.

 

[437] From the outset of his mandate, Malobabic involved O’Connor increasingly with respect to FIDE.

 

[438] In an email dated September 1st, 2005 addressed to Cousineau and Spirig of InvestorCo, Malobabic offered a first glimpse concerning her “real” relationship with FIDE senior management, although not as clear as her subsequent written statement in May 2006 mentioned above:

 

Also, we have an issue with one FIDE official, who does not like Canadians, and is setting obstacles to MonRoi.320

 

[439] The evidence revealed that the relationship with FIDE was not as positive as what had been represented to the potential investor in the spring of 2005. FIDE was entertaining a relationship with DGT321, who offered a digital chess board. Malobabic perceived DGT to be a competitor of MonRoi despite the fact that MonRoi’s PCM was a better performer, in her opinion.

 

[440] On September 8, 2005, Malobabic wrote a six-page draft letter addressed to FIDE. This letter was meant to respond to a previous communication from FIDE, represented by its legal counsel and vice-president, Mr. Morten Sand (“Sand”). She asked O’Connor to review the same and to send it to FIDE under “Daniel O’Connor, Legal Affairs, MonRoi Inc.”:

 

Hello,

I have drafted a response to FIDE, based on your recommendations.

 

 

 

 

 

320 PDO-16.

321 DGT stands for Digital Game Technology (“DGT”).


 

Please, review it. Dan- please, e-mail the response to FIDE from [...].com or [...].com (…).

The  response  needs  to  be  e-mailed  to:  embassy@center.ru,  fide@inbox.ru, office@fide.com

Please, call me before ...

Attached are MonRoi_C.pdf, Press Release, E-mail Train in Word format (for easier editing) and DGT e-board History from their web-site.

I am taking the Bar exam next week. Ha, ha.

Here it is:322 [Emphasis added]

[441] Sand’s letter was FIDE’s reply to a previous letter from Malobabic dated August 25, 2005. Sand concluded his letter by asking MonRoi (Malobabic) to either come and meet with FIDE officials in San Luis, Argentina or alternatively, cancel the existing contract between FIDE and MonRoi (the FIDE MOU), not a very positive situation.

 

[442] The Court cannot help but notice the rather complex legal subjects dealt with throughout the lengthy letter written by Malobabic, who, during the trial, always claimed that at the time, she was totally oblivious to all legal aspects or notions and relying exclusively on the legal advice of O’Connor as she could not even understand any of the legal documents submitted to her review and comments, given that English was not her mother tongue.

 

[443] This six-page letter written in September 2005 contradicted completely those assertions of Malobabic who at trial, for reasons that escape the Court323, tried to distance herself from that letter addressed to FIDE by affirming that except for one or two paragraphs, the document had been entirely drafted by O’Connor324. The Court finds that Malobabic understood quite well many of the legal and technical issues that she dealt with in the said letter. With all due respect, the Court does not believe Malobabic’s version of facts on that subject. Moreover, Malobabic always claimed that O’Connor knew absolutely nothing about all the intricate aspects of the international chess market. If that was really the case, he had suddenly performed a spectacular transformation in that respect if he really drafted that letter himself.

 

[444] It is also highly improbable that O’Connor would have written, inter alia, the last two paragraphs (17 and 18) of that draft letter that served as a response to Sand’s previous letter. Their style and tone cannot reasonably be attributed to O’Connor. Those

 

 

 

322 PDO-71, pages 002967-002972.

323 Other than to justify the argument made by Malobabic that O’Connor was solely to blame for the sour relationship with FIDE due to his incompetence and lack of good manners.

324 Her testimony clashed with her email transmitting her draft to O’Connor, in which Malobabic mentioned: “I am taking the Bar exam next week. Ha, ha.”? It is another illustration of Malobabic denying repeatedly the obvious and the undeniable.


 

paragraphs were entitled “17. Your last point is an insult” and “18. Meeting in person” and contained aggressive comments and even surprising demands325 to FIDE that would have not been conducive to improve the already strained relationship between Malobabic and FIDE senior management in the context where Malobabic was invited to attend a meeting with them in San Luis, Argentina.

 

[445] The letter in its final version326 was clearly revised by O’Connor and refined in its tone and approach to induce the FIDE officials to look positively at an upcoming proposed meeting in San Luis with MonRoi representatives.

 

2.16 The Trip to San Luis, Argentina, the Meeting with FIDE and the Meeting of October 20, 2005 with the minority shareholders

[446] As previously mentioned, Malobabic asked O’Connor to accompany her to the FIDE meeting that was held in San Luis, Argentina in mid-October 2005.

 

[447] It is important to bear in mind that the FIDE relationship with MonRoi was particularly important for the minority shareholders based on the representations made to them at the outset by Malobabic with, inter alia, the Investment Fact Sheet327 distributed to the potential investors at the outset.

 

[448] Initially, the week-long trip was fruitful. According to O’Connor, Malobabic was very positive about the outcome of the San Luis meeting with FIDE. Her relationship had been preserved despite the presence of her competitor DGT and an Addendum328 to the existing FIDE MOU was extensively negotiated with O’Connor’s assistance and even finalized at the airport upon their departure to Canada on October 17, 2005.

 

[449] The shareholders were expecting anxiously Malobabic’s and O’Connor’s reports on their San Luis meeting given that on October 17, 2005, she had written the following message to representatives of Morisco, InvestorCo and BEC:

 

 

 

 

 

 

325 In her draft, Malobabic responded as follows to Sand’s invitation to meet in San Luis: “MonRoi's President shall not discuss the contract matters without a presence of the corporate lawyer. Should she be requested to travel in San Luis in order to advise on the solutions, we require FIDE to compensate her and the legal counsel travel expenses. Optionally, we welcome the opportunity to meet Mr. Ilymzhinov on his way to San Luis (in Canada or US) and converse without prejudice.

Please, let us know shortly. Kindly note that trips need be planed in advance due to our President's demanding business schedule.” (PDO-71, page 002995). O’Connor wrote instead: “We agree that a meeting in person is a good idea. Please advise us as soon as possible on what dates the president of FIDE will be in San Luis so that a meeting can be arranged. Please also confirm that MonRoi will be able to display its banners and the MonRoi system in San Luis.” (PDO-71, page 003019).

326 PDO-71, pages 003015-003019.

327 PDO-4.

328 PDO-77, pages 25-27.


 

We have reached some kind of understanding with FIDE, conditional to 2 weeks review (we can approve it or reject it by November 07 2005).329

 

[450] The Court also understands from the evidence that the “some kind of understanding” referred to by Malobabic was the Addendum and that its execution was subject to the approval of both board of directors. She also expected FIDE to put in motion important co-promotion steps called the FIDE Co-Promotion of the MonRoi System that had already been agreed in principle in San Luis, according to her330.

 

[451] The Addendum to the FIDE MOU provided for the MonRoi system being mandatory at all FIDE-sanctioned tournaments commencing on July 1, 2006331. O’Connor felt very positive about this prospect that was more in line with the gist of Malobabic’s representations in the Investment Fact Sheet. This Addendum was critical to MonRoi’s financial success. In return, MonRoi agreed to become FIDE Prime Sponsor paying

$1.5M per year to FIDE commencing on April 1st, 2007332. With the existing Cash-Flow Forecasts prepared by MonRoi, it was anticipated that with the FIDE mandatory use of MonRoi’s PCMs, the latter would generate some $4M in sales commencing in the fall of 2006333. According to O’Connor, the project was financially feasible, they stood to have sufficient money from sales to pay the $1.5M sponsorship fee in April 2007. He felt very positive and optimistic about it. He could sense the anticipation of the minority shareholders back in Montreal. The Addendum was finalized at the San Luis airport between O’Connor and Sand but was not signed at the time with the understanding that each party’s board of directors would ratify the same before its execution. At trial, O’Connor described this positive turn of events as follows:

 

“We had come from serious dark places to an extremely favourable position.”

 

[452] He felt that with the MonRoi’s Prime Sponsorship, “we had cemented our relationship with FIDE. This was a very special opportunity for MonRoi and for FIDE

 

[453] O’Connor reiterated that Malobabic and he considered that MonRoi was in a pretty good position coming back from their San Luis meeting on October 18th, 2005.

[454] And then “all hell broke loose” at the meeting of the minority shareholders scheduled for October 20, 2005. The meeting was planned before Malobabic’s departure to Argentina as, quite understandably, the minority shareholders were already aware of certain difficulties with FIDE and were anxious to get a report from Malobabic and O’Connor on the outcome of their discussions with FIDE senior management.

 

 

 

 

329 PDO-68, page 002519.

330 PDO-77, pages 23-24.

331 Clause 9 of the Addendum (PDO-77, page 26).

332 Clause 11 of the Addendum (idem).

333 With an exponential increase in revenues soon after, the sponsorship contribution could be easily paid by MonRoi.


 

[455] Morisco, among others, wanted first and foremost that the meeting begins with O’Connor’s briefing on the FIDE discussions in San Luis.

 

[456] On October 18, 2005, in an email sent by Tuccinardi on behalf of the minority shareholders about the upcoming October 20th meeting, the latter asked Malobabic the following:

In speaking to the investors, we all feel that the focus of Thursday's meeting should be the FIDE situation, as this is critical to MonRoi's future. We would all like to get a copy of the tentative agreement you signed or discussed with FIDE before Thursday's meeting, so that we can take the time to review it and be prepared to discuss the issues, first thing Thur. We feel it is important that both yourself and Dan be present to discuss the FIDE situation.

Following our last shareholders meeting regarding the USA, the shareholders still have issues regarding certain clauses in the agreement which we will have to re discuss.334

[457] Malobabic did not see it the same way. She decided that the meeting was first and foremost to close the USA335, even if the minority shareholders had informed her that they were not yet ready to do so without further discussions. She responded to Tuccinardi that she did not sign any agreement in San Luis, “contrary to some recommendations and requests”, as the FIDE MOU was still in full effect. However, she agreed with him that it would be a good idea that O'Connor attend the meeting to brief them, “as his goal was to define future collaboration steps with FIDE.” 336

 

[458] On October 19th at 10:40 in the morning, Malobabic wrote the following email to O’Connor who had previously confirmed his presence at the meeting asking if he should be present from the beginning:

Dan,

I know that your schedule is full, and appreciate you taking your time. Please, write a short summary:

Page 1 - MonRoi objectives, San Luis Page 2- MonRoi Achievements, San Luis Page 3- Follow up steps, Future

Please, keep it in a point format, very simple ... Would like to show your value to the company and to all the shareholders. As always- I see B.

Please, e-mail me the summary by tomorrow at 10am for my review. Thank you in advance.

 

 

 

 

334 PDO-68, page 002517.

335 PDO-68, page 002517.

336 Idem.


 

I think that you could arrive maybe at 5:30, so we would respect the schedule. I will discuss with guys the shareholder agr [USA] from 4:30 to 5:30.337

[459] Clearly, Malobabic did not want O’Connor to attend the prior discussions on the USA.

 

[460] At noon on October 19th, Alain Morissette sent directly to O’Connor an email that would upset Malobabic’s plans338:

Hi Dan,

In my view you should be there at beginning to give the info and explain FIDE situation from your trip to Argentina.

Have a nice day,

Alain339

[461] Alain Morissette was also of the view that the meeting should deal mainly with a briefing on the FIDE situation. It was obviously important to the minority shareholders to get the report on FIDE and Malobabic could not ignore it. The minority shareholders had heard that FIDE had signed an agreement with DGT supplying chess electronic boards in direct competition with MonRoi, albeit with a far less technologically advanced system than MonRoi’s. Such an agreement could have an adverse effect on MonRoi’s ability to sell its products with FIDE’s despite their existing agreement (the FIDE MOU). Moreover, preliminary echoes that they had receive from the San Luis meeting were that there had been excellent discussions with FIDE senior management and that MonRoi was close to an improved agreement.

 

[462] Therefore, a full briefing on what had transpired during their meeting with FIDE in San Luis was more crucial for the minority shareholders than trying to close on the USA that, in any event, required additional discussions.

 

[463] Disregarding the wishes and reasonable expectations of the minority shareholders, Malobabic unilaterally elaborated the following agenda on the eve of the meeting in an email addressed to Alain Morissette:

Alain,

Below is the proposed agenda (starting at 4:30pm):

 

 

 

 

 

337 PDO-68, page 002520.

338 As a side note, the Court finds such an email is quite surprising given the testimony of Malobabic that, under no circumstances, Alain Morissette and O’Connor should find themselves present in the same room at the same time, given the latter’s unacceptable hostility towards the Morissette brothers, the same persons that will negotiate directly with O’Connor during his subsequent attempt to buy Morisco’s shares in MonRoi.

339 PDO-77, page 002524, with a copy also sent to Malobabic.


 

1)  4:30pm: Approve a document340 on behalf of your shareholders: confidentiality, non-solicitation, non-assignable shares341 among others, which would allow MonRoi to share confidential information with attendees

2)  4:50pm - 5pm: 10-minute briefing by Brana, San Luis FIDE meeting, as you requested

3)   5- 6pm: Shareholder agreement closure- Please, email me points under consideration, so I could asses(sic) them prior to tomorrow's meeting.

4)  6pm - 7pm: 1-hour briefing by Dan, San Luis FIDE meeting

I called you many times from Argentina, left voice mail messages, even my hotel number, and did not receive a call back, nor email message.

My intention was to update all parties in real-time and get inputs.

Walter and Luis [Cousineau] were very responsive. Elio committed to be available, and when the conference call was scheduled, he was not reachable.

I spoke with Luis who gave me his input on behalf of InvestorCo.

Please, note again that due to your  request to continue working on the shareholder agreement, MonRoi success is negatively impacted, seriously impeding deliverables, which cause direct material damages to MonRoi.342

Brana343 [Emphasis added]

[464] Based on the foregoing email, if Malobabic’s intention on October 18th was to update the minority shareholders in real-time from San Luis and benefit from their input, how is it that a day or so later the same information suddenly became sensitive and confidential corporate information that could no longer be legally shared with the minority shareholders without each of them signing a “Warranty Agreement” which will turn out to be a non-disclosure agreement, a non-solicitation agreement and a non-competition agreement?

 

[465] Be that as it may, Alain Morissette’s reply344 to Malobabic’s proposed agenda must have been interpreted by the latter as an attempt to deter her from her goal to close on the USA at the upcoming meeting.

 

 

340 The document was the first reference to the “Warranty Agreement” that Malobabic will insist upon being executed by all minority shareholders at the beginning of the October 20th meeting without having been submitted to them beforehand for their review, failing which no confidential information about the San Luis discussions with FIDE would be disclosed to them.

341 Clearly, Malobabic was attempting to confirm her veto right in that new document.

342 This paragraph of Malobabic’s proposed agenda linking damages to the continued discussions on the USA requested by the minority shareholders leaves very little doubts about Malobabic’s intentions. The Court sees therein veiled threats of legal action against the minority shareholders, nothing to appease them.

343 PDO-77, page 002525.

344 PDO-77, page 002527. “I really do not understand your e-mail and neither where you are coming from on this. […] just to let you know that I am an investor not an employee on your payroll.”


 

[466] Later, seemingly with a view to apply pressure on BEC, she demanded to Tuccinardi that their points of disagreements with respect to the USA be communicated to her by October 20th at 10:00 a.m., failing which she would take for granted that BEC was now in agreement with it (and presumably ready to sign the USA at the meeting)345.

[467] This prompted another email from Alain Morissette at 11:43 a.m. on October 20th in which he conveyed Morisco’s position with respect to the USA and their expectations regarding San Luis and the presence of O’Connor at the meeting:

Brana,

Take note that Morisco will not send any comments regarding the USA, and do not assume by it that Morisco is undertaking to accept the terms of the USA that will be put forward at today's meeting.

Furthermore, Morisco would like to modify your proposed schedule of the meeting so that we first want to listen to Mr. O'Connor's presentation on FIDE Argentina meeting and discussion.

Secondly Morisco wants to present a FAR MORE IMPORTANT issue than the USA before entering in USA discussion. This will take 15 to 20 minutes.346

[Emphasis added]

 

[468] At 3:57 p.m., half an hour before the beginning of the October 20th meeting, Malobabic responded, adopting a far more formal tone and approach:

Dear Mr. Morissette,

I received your email message.

Kindly note that the Bi-Laws of the Corporation are clear as to which information you have access to. "You may not insist upon being informed with respect to the management of the business and of the affairs of the Corporation ... "

However, I am ready to provide you the access to the confidential corporate information in regards to FIDE meeting, San Luis 2005, upon your approval of the Warranty Agreement (which includes and in not limited to nondisclosure and non-solicitation). This is not an admission of any kind by MonRoi that any such data disclosure is permitted and authorized.

The meeting today is regarding the shareholder agreement [USA], as agreed a week ago.

I welcome all inputs, and have already modified the agenda to fit your needs.

Please, note that the capital letters in an email are considered screaming. Please refrain from threats.

 

 

 

 

345 D-6.

346 PDO-77, page 002531.


 

My good intentions to provide you the corporate information in real-time in order to be consulted on decisions, are practically not feasible to execute, as you may and may not be reachable. The corporate management has to make decisions in the best interest of the company, in a timely fashion.

Best regards, Brana.347 [Emphasis added]

[469]  Anticipating that the minority shareholders would renew their demands regarding a briefing on the San Luis meeting with FIDE, Malobabic did not want to take any chances with O’Connor who was to brief them on the FIDE meeting in San Luis for an hour at 6 p.m., according to her own proposed agenda. A one hour long briefing necessarily implied that he would have a lot of information to provide about FIDE.

 

[470] In an astonishing move, at 2:14 p.m. on October 20th, some two hours before the meeting, Malobabic sent another email to O’Connor under the subject heading “Confidentiality and non-solicitation”, which appears to the Court to be a form of ultimatum, if not a threat, aimed at her own lawyer:

Dan,

Please, note that you agreed to keep MonRoi's Confidential Information in strictest confidence and trust, to take all reasonable precautions against unauthorized disclosure of the Confidential Information, and that you shall not, directly or indirectly, disclose, allow access to, transmit or transfer the Confidential Information to any Person. Furthermore, you agreed not to copy or reproduce the Confidential Information.

[Confidential Information is defined in detail thereafter]

Confidential business information are all information about FIDE, FIDE meetings, and discussions.

Please, note that your disclosure of MonRoi confidential information to any Person (including and not limited to MonRoi investors) would be treated as a breach of contract with MonRoi.

Furthermore, any unauthorized solicitation of MonRoi partners, employees, contractors would be considered as a breach of contract with MonRoi. I respectfully do not authorize you to make any commitments or statements on behalf of MonRoi Inc to any Person (including and not limited to FIDE and MonRoi investors).

Please, understand that my job is to protect MonRoi resources, and have to act accordingly.

Thank you in advance, Best regards,

 

 

347 PDO-77, page 002531. Malobabic did not attach the “Warranty Agreement” with her email that was also sent to the representatives of InvestorCo and BEC.


 

Brana348 [Emphasis added]

[471] How could O’Connor possibly react to this incredible threat where Malobabic was obviously placing him in an impossible situation? On one hand, the minority shareholders were anxious to get a full briefing on the FIDE meeting in San Luis to which they were rightfully entitled and on the other hand, he was asked to brief them about the FIDE meeting for one hour without breaching MonRoi’s Confidential information, which, according to Malobabic’s latest email, was any information whatsoever related to FIDE and MonRoi349. Even worse, Malobabic had warned him that he would be in breach of his contractual obligations to MonRoi if he disclosed MonRoi’s Confidential information to the minority shareholders (the MonRoi investors).

 

[472] In other terms, according to Malobabic’s email, absolutely everything touching FIDE and MonRoi was now “Confidential Information” that could not even be disclosed to the “MonRoi Investors”. What could O’Connor possibly talk about later that afternoon for an hour without breaching his contractual obligations to MonRoi?

 

[473] The foregoing can only be reasonably interpreted by the Court as a blatant attempt by Malobabic to prevent and suppress any information concerning the San Luis FIDE meeting to the minority shareholders who were clearly expecting to be briefed on it. In her email to O’Connor, she did not even mention that the Confidential Information could be disclosed to the minority shareholders that would have signed a “Warranty Agreement”.

 

[474] The atmosphere was changing, and not for the better. The minority shareholders were not going to dictate their reasonable expectations to Malobabic who wanted to retain full control of MonRoi while restraining more and more the information that she agreed to communicate to them previously. This constituted a radical change, in the eyes of the Court, as on October 18, 2005, upon her arrival from San Luis, Malobabic had confirmed in an email350 the October 20th meeting at which time she was going to “present an update on the FIDE meeting” without any mention of the restrictions imposed by the corporate by-laws and the necessity to sign beforehand a “Warranty Agreement”. Moreover, no one was provided in advance with a copy of the document that Malobabic expected them to sign if they wanted to be briefed on the San Luis FIDE meeting.

 

[475] The Court also noted that in her proposed agenda351, Malobabic was extremely vague on disclosing her true intentions as she simply mentioned that the minority shareholders were to “[a]pprove a document on behalf of your shareholders [the shareholders of Morisco, BEC and InvestorCo]: confidentiality, non-solicitation, non-

 

 

 

 

348 PDO-71, pages 003143-003144.

349 PDO-68, page 002525.

350 PDO-77, page 002522.

351 PDO-68, page 002525.


 

assignable shares among others, which would allow MonRoi to share confidential information with attendees.”

 

[476] The word “approve” does not automatically mean “sign”. It was impossible for the minority shareholders to anticipate that there would not be a briefing on the San Luis FIDE meeting without signing a legal document that they had never seen since the second item on her agenda right after the “approval” of the aforesaid document was her own briefing on the San Luis FIDE meeting, followed one hour or so later with O’Connor’s hour-long briefing (item 4 on the agenda).

 

[477] According to O’Connor, by opposing the By-laws of MonRoi to the minority shareholders (that were standard corporate by-laws) to prevent the disclosure of so-called MonRoi Confidential corporate information in connection with the San Luis FIDE meeting, Malobabic was violating her own contractual undertakings stemming from the Morisco Financial Agreement that provided that with the USA to be entered into, the minority shareholders were to be treated as directors of MonRoi. Therefore, the clear intent of the parties had always been that they would be entitled to such information without being forced to sign any document such as a “Warranty Agreement” that, again, nobody had ever seen before the beginning of the meeting. Based on that previous agreement, the minority shareholders were entitled to this alleged Confidential corporate information without having to execute the documents demanded by Malobabic and without any prior warning.

 

[478] Suddenly, Malobabic had decided unilaterally that all information about FIDE and the San Luis meeting was now MonRoi corporate Confidential information that was so sensitive that the representatives of Morisco, InvestorCo and BEC were no longer entitled to it by law. She was even  under no legal obligations to share with the  minority shareholders any Confidential information relating to the San Luis meeting as this information was now part of the management of MonRoi’s business and affairs352.

 

[479] The minority shareholders, who had been steadfastly denied their shares despite their collective investment of more than $1.4M into MonRoi, were now denied any information on the outcome of the San Luis FIDE meeting that was crucial to them unless they agreed to sign beforehand a “Warranty Agreement” which had never been mentioned, announced or discussed before with the minority shareholders.

 

[480] In other words, without signing beforehand the “Warranty Agreement”, they would be barred from receiving the now highly Confidential corporate information regarding FIDE and the San Luis meeting. Furthermore, were they to execute the “Warranty Agreement” and was Malobabic to provide them with such Confidential corporate information, it would be done without any admission on her part and on behalf of MonRoi that any such disclosure was even permitted and authorized.

 

 

 

 

352 PDO-77, page 002531.


 

[481] In the opinion of the Court, the oppression by Malobabic towards the minority shareholders could not be more blatant. Malobabic, as sole director of MonRoi, was not respecting the reasonable expectations of the minority shareholders and was even resorting to the tactic of upholding valuable information to force the minority shareholders to agree to the version of the USA that she demanded. She was also using the long- awaited crucial information concerning the FIDE meeting in San Luis as leverage to force the immediate execution of an unannounced “Warranty Agreement” if the minority shareholders wanted information to which they were not entitled, in Malobabic’s opinion.

 

[482] Needless to say, the October 20th meeting soon turned into a disaster with the Morisco’s representatives storming out without ever signing the “Warranty Agreement” imposed by Malobabic.

 

[483] The Court understand that everyone in attendance refused to sign immediately the “Warranty Agreement”, a legal document that they had never seen nor that they had the opportunity to submit to their respective counsels. Malobabic put her threat into execution as the briefing on the FIDE meeting in San Luis did not take place.

 

[484] However, the minutes of that meeting prepared by Malobabic and communicated by email on October 21, 2005 revealed, inter alia, that those who were in attendance would have been told that the FIDE meeting in San Luis did not result in any changes to the FIDE MOU, although there were possibilities that MonRoi could consider in the near future to strengthen its entry in the FIDE chess market with a potential Addendum to the FIDE MOU353.

 

[485] As previously mentioned, on October 21, 2005, Malobabic circulated by email the minutes of the October 20th meeting that she had prepared354 to Tuccinardi, Cousineau and Spirig, who were the representatives of BEC and InvestorCo and who presumably stayed throughout the entire length of the meeting. O’Connor, who only arrived towards the end of the meeting, also received the email.

 

[486] Given the importance in the present instance of these minutes originating from Malobabic, which seemingly contains significant self-serving and less self-serving statements, it is necessary to reproduce the same in extenso:

Subject: Minutes, Thursday, October 20 meeting Confidential

Hello,

Thank you for attending the meeting on Thursday, October 20, 2005. The following is concluded:

 

 

 

 

353 PDO-68, page 002533.

354 PDO-68, pages 002533-002534.


 

1)   Warranty documents are to be approved prior to disclosure of the confidential corporate information. Suggested dates: Tuesday or Wednesday next week. Please, confirm your availability.

2) Brana stated that FIDE meeting in San Luis did not result in any MonRoi contract change.

There are possibilities which MonRoi could consider in the near future to strengthen MonRoi market entry with the potential Addendum to the contract. This is considered as a business opportunity, and no request of any kind.

It was noted that By-Laws of the corporation do not grant to the minority Shareholders access to the confidential business management information.

The only Director of the company is Brana. Any share issuance or transfer requires Director's approval.

Brana decided to provide access to the confidential business discussions with FIDE, San Luis 2005, upon approval of the Warranty agreement (which includes and is not limited to non-disclosure, non-solicitation and non-competition). All the attendees were informed about this agreement prior to their meeting. The agreement consists of points already agreed upon by all, which are part of the USA.

Elio stated that no one would compete with MonRoi, and that he does not mind approving the Warranty agreement. Louis stated that he wishes to speak about the FIDE meeting, and will not stay unless this is discussed. Brana said that there is no issue to discuss details of the FIDE meeting, upon the Warranty agreement approval. Louis said that he must validate the Warranty agreement with his lawyer. Brana said that we will schedule a meeting early next week, upon his lawyer review. Walter said that he does not mind approving the confidentiality agreement.

Yves and Alain Morissette refused to approve the Warranty Agreement. Yves Durand & Morissette requested to gain the access to all confidential corporate information without approving the Warranty Agreement. Brana disagreed that this would be a good business practice. Yves Morissette threaten to Brana by verbal and even physical intimidation. Alain Morissette said that he would send a letter to MonRoi on Monday. Brana engaged a litigation lawyer355.

Any disclosure of MonRoi information, or solicitation of MonRoi contractors, employees, clients, suppliers, FIDE, MonRoi investors, manufacturers is prohibited.

MonRoi over-achieved its objectives within the projected budget. The achievements of MonRoi are direct result of Brana's efforts.

Brana thanked to Dan O'Connor for helping her with San Luis meeting, where his  professionalism  and  dedication  added  value  to  MonRoi.  Dan  was

 

 

355 Indeed, Malobabic caused lawyer Labranche to send, on October 28th, 2005, a letter of demand to Alain and Yves Morissette and Yves Durant, all of Morisco, to cease and desist from all communications, harassment and intimidation to MonRoi and its management being composed of solely Malobabic. This letter of demand deals with Morisco’s intentions to dispose of its shares MonRoi. One thing is clear from this letter, the lawyer for MonRoi treats Morisco as a shareholder. (D-7)


 

awarded with 1 % of MonRoi common share for his 9-months achievements, through InvestorCo. Brana confirmed that this does not dilute minority shareholders.

Brana invited Morisco, BEC and InvestorCo representatives to attend the San Luis meeting. However, no one was available. She also tried to engage all in discussions from Argentina, but with no response (except Walter & Luis).

Brana feels that the corporate management must be able to make decisions in a timely manner, without waiting for inputs which delay decisions, causing a long term business implications.

Have a nice weekend,

Brana.356 [Emphasis added]

[487] Based on certain statements made by Malobabic in those minutes, if indeed the “Warranty Agreement” consisted of points already agreed upon by all, which were part of the USA that she wanted to execute at that very same meeting, why did she choose to cause so much commotion at that meeting by introducing this legal document that was not even necessary if the USA covered it anyway?

 

[488] It just did not make any sense for the sole director of MonRoi to act in such an oppressive manner towards the minority shareholders.

 

[489] On October 22, 2005, having received the Minutes of the October 20th Meeting, O’Connor wrote to Malobabic:

Hi Brana:

I should be available for a meeting on Tuesday or Wednesday, with a bit of notice.

If you want me to be involved, we should plan to talk soon to discuss my possible role or future with the company. I think you have an idea of the challenges I face with my busy practice.

Don't work too hard this weekend. I am trying to catch up on my office administration after our trip. I hope you enjoy the weekend.357

[Emphasis added]

[490] She wrote back to him to tell him that he did a great job in San Luis, but evidencing her ever-increasing preoccupation with confidentiality, she reminded him to refrain from communicating with the minority shareholders who seem to “misunderstand things”, adding that if the minority shareholders refused to sign the “Warranty Agreement”, they surely had to have “hidden motives”:

[…]

 

 

 

356 PDO-68, pages 002533-002534.

357 PDO-68, page 002535.


 

Hope that your practice will not suffer.

Please,  do  not  communicate  with  investors,  for  a  few  reasons:  1)  they

misunderstand things if they are given a story in bits and pieces 2) over analysis brings paralysis and forgetting objectives 3) there might be a communicated a legal position of the company soon- my file is complete.

Warranty agreement with investors should not be an issue, unless there are hidden motives. I will get a confirmation next week.

Have a nice weekend, Brana.

PS Please, take some rest, you did a great job in San Luis. […]358 [Emphasis added]

[491] This email revealed Malobabic’s poor opinion or the lack of consideration that she seemed to have for the minority shareholders who “misunderstood things if they are given a story in bits and pieces” and who must have ill intentions towards MonRoi if they objected to sign the “Warranty Agreement” despite that its content, by her own admission, was included in the USA. Based on the foregoing, it is difficult to understand what could have motivated Malobabic to accept $1.4M from such unreliable and suspicious persons.

 

2.17           Malobabic’s dissatisfaction with O’Connor’s work

[492] Malobabic has made it repeatedly clear during the trial that O’Connor’s professional conduct and his legal advice were objectionable from the outset of their professional relationship in April 2005.

 

[493] Despite the foregoing and her profound dissatisfaction with a lawyer that alienated needlessly the Morissette brothers and their lawyer Stuart in April 2005, who failed repeatedly to follow her instructions, who failed to advise her properly on legal matters and who placed himself in a conflict of interest situations by causing his family to become investors in MonRoi, by acting as legal counsel for InvestorCo and by incorporating InnDe Sub without her authorization, it is incomprehensible under such abominable circumstances why Malobabic would still require the services of O’Connor after the debacle of July 28, 2005, and invite him to assist her at important meetings in Quebec City and in San Luis, describe him as a member of the MonRoi management and award him 1% shares through InvestorCo…

 

[494] Respectfully, Malobabic’s behavior is incompatible with her recriminations and accusations towards O’Connor. It just does not make any sense.

 

 

 

 

 

 

358 PDO-68, page 002535.


 

[495] There were sporadic minor outbursts previously, and the Court has already mentioned that on June 28, 2005, upon receiving the first draft of the ATA359, Malobabic expressed to O’Connor her utter disappointment in a no uncertain terms360.

 

[496] The next signal came up on July 4, 2005 at 8:10 a.m., after O’Connor had written the following email to Malobabic in anticipation of the upcoming closing as soon as BEC’s financing was completed361:

I would like to meet with you today  to review all remaining aspects  of the InnDe/MonRoi structure to finalise this and issue shares. This includes the Asset Transfer Agreement.362

[Emphasis added]

[497] One hour later at 9:12 a.m., O’Connor received a surprising email from Malobabic who did not identify the errors nor what caused a conflict of interest situation:

Dan,

Thank you for your e-mail.

Due to errors in the Asset Transfer & InnDe Sub structure and to avoid conflict of interest, I have to hire an independent company to review it.

This continues to be an issue for more than 45 days, and is affecting the program performance.363

[Emphasis added]

[498]  Six minutes later at 9:18 a.m., O’Connor answered:

 

Brana:

 

I will leave it in your hands. Let me know if I can be of any assistance.

 

Dan364

 

[499] Given the gravity of her email, it is surprising that Malobabic never tried to meet with O’Connor and discuss the same.

 

[500] It must be pointed out that even though O’Connor filed Malobabic’s email above as part of an email chain365  between himself and her on July 4th, 2005, strangely, her email found in the middle of that chain was the only one dated August 3rd, 2005.

 

 

359 Sent to Malobabic on June 16, 2005. In his email, O’Connor indicated that this preliminary draft was not yet “tight”. He needed more information from Malobabic.

360 Paragraph 284 of this judgment.

361 BEC completed its $275,000 investment on July 14, 2005.

362 PDO-69, page 002641.

363 PDO-69, pages 002642 and 002853.

364 Idem.

365 Found in two locations in PDO-69 at pages 002642 and 002853.


 

Considering the nature and the content of  the exchanges between O’Connor and Malobabic in those emails, the timeline proposed by O’Connor is more plausible, as he sent his first email (July 4th) at 8:11 a.m., followed by her response (August 3rd) at 9:12

a.m. and then with O’Connor’s answer (July 4th) at 9:18 a.m. “I will leave it in your hands. Let me know if I can be of any assistance”, being a logical and credible reply to Malobabic’s somewhat cryptic message.

 

[501] This was not the only instance that such a strange reaction occurred, especially considering that they were only a few days before the closing. With all due respect, the explanations given by Malobabic that she really sent her email on August 3rd, 2005 and not on July 4th, a month earlier, failed to convince the Court as they were simply not plausible nor credible in the eyes of the Court.

 

[502] In order to justify such discrepancy in the dates, Malobabic accused O’Connor, among other things and more than on one occasion, of having unlawfully gained access to her office computer (hi-jacked) and drafted, if not forged, self-serving emails using her name that he would eventually use later on against her. With all due respect, the Court simply does not believe Malobabic’s version of the facts in that regard, especially since it is not supported by any credible evidence other than her own verbal accusations that proved groundless time after time during the trial.

 

[503] Moreover, Malobabic indicated that her “August 3rd” email could not have possibly been sent on July 4, 2005 because the so-called unidentified errors made in InnDe Sub were found after July 4th. However, the witness failed to explain her email of June 21, 2005 to O’Connor in which she advised him of the need to investigate the InnDe Sub structure as there may have been an error which she did not identify366.

 

[504] In any event, the Court does not believe that O’Connor would have manipulated or forged Malobabic’s emails in such a fashion, especially that he had nothing to gain by doing so.

 

[505] Moreover, this was not an isolated incident. On June 29, 2005 at 11:26 a.m., Tuccinardi sent an email to Malobabic asking certain confirmations in the context of his upcoming investment. At 12:51 p.m., Malobabic forwarded Tuccinardi’s email to O’Connor asking him “Please, follow-up with Elio”. Although the email of Elio Tuccinardi is dated June 29, 2005, Malobabic’s email right above it is dated July 29, 2005. By that latter date, BEC’s investment had been completed more than 14 days earlier. It just did not make any sense that Malobabic’s July 29 email, which was clearly part of an email chain of June 29th would have been sent on July 29th. Why would O’Connor have any interest in hijacking once again her office computer to forge such an email?367

 

 

 

 

 

366 PDO-67, page 001151.

367 PDO-68, pages 002402-002403.


 

[506] Bearing in mind that Malobabic’s new expression of mistrust368 followed her previous outburst of June 28th, 2005, it is not surprising that upon receiving Malobabic’s terse email on July 4th, O’Connor simply responded “I will leave it in your hands. Let me know if I can be of any assistance.”

 

[507] In any event, O’Connor testified that Malobabic never told him at the time what the “errors” were. But he understood that he was excluded of all work relating to the ATA and to InnDe Sub without affecting his involvement with respect to the USA and the other tasks related to the upcoming closing. However, despite her profound dissatisfaction, the evidence revealed that Malobabic continued to request services from O’Connor in connection with the ATA and InnDe Sub. For example, it was O’Connor who was mandated to incorporate InnDe Sub on July 22, 2005 in the circumstances more fully discussed elsewhere in the present judgment369.

 

[508] Despite her mixed messages, Malobabic kept O’Connor involved with the ATA shortly thereafter until the final aborted closing attempt of July 28th, 2005. In the meantime, he was carrying on his work on, inter alia, the USA, the other closing elements and on the trademarks and patents applications that he filed on behalf of InnDe370.

 

[509] At trial, Malobabic expressed her dissatisfaction with his failure to get the minority shareholders to sign the USA, believing firmly that her requirements (the veto rights) should have been accepted by all as she was totally justified to exact the same as the founder of InnDe and of MonRoi and as sole director of MonRoi. After all, she had the fiduciary duty to protect that company from the minority shareholders. Yet, O’Connor failed to convince them of “MonRoi’s legitimate reasonable expectations”.

 

[510] Her critiques towards O’Connor evolved. At one point, he should have never recommended the use of a USA at the outset, combined with his failure to properly advise her of the consequences of using such a legal document. At another point, he should have never transferred the $1.4M to MonRoi without having the USA signed by all minority shareholders.

 

[511] These arguments are not necessarily synonymous to the USA being a condition precedent to the issuance of shares.

 

[512] At the beginning of August 2005, even though she was bound by the May 30th Agreement, Malobabic decided unilaterally and without any explanations to tell O’Connor to take the month of August off, adding that there would be work for him in September. However, the evidence also revealed that Malobabic nevertheless required the services

 

 

 

 

368 O’Connor testified that Malobabic never told him at the time what the “errors” were and that her email of July 4th, 2005, was restricted to the ATA and to InnDe Sub (427) without alluding to the USA nor to the issuance of the MonRoi shares.

369 See Chapter 2.25.

370 PDO-69, pages 002649, 002668, 002679 and 002696.


 

of O’Connor throughout those two months without ever paying to him the agreed upon monthly fees.

 

[513] One thing that was undisputed, from the end of July 2005, O’Connor was systematically excluded by Malobabic of all meetings where the USA would be discussed. Another lawyer (Mtre Brian C. Forget) handled the task of closing on the USA, which he failed to do until the institution of the present proceedings some 18 months later.

 

[514] Also in October 2005, O’Connor and Malobabic came to a new agreement which involved accompanying her on the aforementioned Quebec City and San Luis trips and receiving, inter alia, 1% of MonRoi shares in partial remuneration for the services rendered, which was not synonymous to someone who had lost all confidence in MonRoi’s lawyer.

 

2.18 O’Connor’s proposal for employment and the termination of his mandate in January 2006

[515] In the fall of 2005, Malobabic continued to consult O’Connor on various issues that went beyond the legal realm.

 

[516] Following the previously mentioned October 20th meeting, the investors were particularly preoccupied with Malobabic’s sudden insistence that they all execute a “Warranty Agreement” to have access to the MonRoi so-called Confidential corporate information on FIDE. Several of the shareholders of the InvestorCo and BEC consulted with their own legal counsels.

 

[517] Walter Spirig of InvestorCo was uncomfortable with Malobabic’s “Warranty Agreement”. On October 25, 2005, he wrote to Malobabic and asked her if instead of the 4-5-page document submitted to the investors for execution, she could ask O’Connor “to draft a simple and effective "one pager", that states in a understandable few words that after I put my signature there that I will have to keep all info received regarding the company confidential.”371

 

[518] A few minutes later, Malobabic responded that “[w]e could ask Dan to look at it, and make it simpler.”372 However, Malobabic did not make such a request to O’Connor as some of the investors had already signed a version of the original “Warranty Agreement” which became a “Confidentiality, Non-solicitation, Non-competition Agreement373.

 

[519] On October 26, 2005, still acting as MonRoi’s lawyer, O’Connor was approached by Spirig374 with the full knowledge and approval of Malobabic. On the previous day, she

 

 

371 PDO-68, page 002545.

372 Idem.

373 PDO-68, pages 002546-002549

374 PDO-68, page 002544:


 

sent an email to Spirig indicating that she would be pleased to discuss with him the details about the San Luis meeting with FIDE if he signed the “Warranty Agreement” that was attached to her email. She concluded her email as follows:

 

Please, feel free to email the agreement to Dan.375

 

[520] Clearly, Malobabic knew that Spirig was one of the directors and an officer of InvestorCo and that her “suggestion” to “feel free” to email to O’Connor her “Warranty Agreement” implied that Spirig could seek O’Connor’s advice on the same, which is exactly what Spirig did.

 

[521] Later on, Malobabic will blame O’Connor for being in a conflict of interest situation by providing legal advice not only to MonRoi but also to InvestorCo and to its shareholders, which was a serious ethical breach in her view.

 

[522] Being so sensitive to conflict of interest situations, wasn’t Malobabic intentionally placing her lawyer in a position of conflict of interest? What if he disagreed with the MonRoi document that she expected Spirig to sign?

 

[523] Rightfully so, O’Connor contacted Malobabic immediately about the “Warranty Agreement” sent to him by Spirig, providing to her his own comments on the document and stating that he would not advise Spirig as he would be in a conflict interest position as attorney for MonRoi:

Walter has sent to me the agreement that you have asked him to sign and has asked me if he should sign it.

I have not, and will not, advise Walter about this because I am in a conflict of interest in my relationship with MonRoi.

However, I note for you the following points about the agreement, in an attempt to point out potential objections from the others.376

[Emphasis added]

[524] O’Connor simply responded to Spirig that he had sent his comments to Malobabic and that she would be in touch with him377. In fact, on the same day, Malobabic sent to Spirig a revised “Warranty Agreement” containing the modifications suggested by O’Connor378.

 

 

 

 

Hello Dan,

Since I am allowed [by Malobabic] to show you this latest agreement, here it is.

I have quickly gone trough(sic) it and it seems simple and straight forward to me. I can probably sign this !?”

375 PDO-68, page 002544.

376 PDO-68, page 002550.

377 PDO-68, page 002552.

378 PDO-68, page 002555.


 

[525] Incidentally, the Court noted that the “Warranty Agreement” submitted to O’Connor by Spirig for his review and comments was dated October 25, 2005 revealed that his own name was listed as one of the shareholders of InvestorCo. Moreover, O’Connor’s name did not appear as a shareholder of the O’Connor Family (6384331 Canada Inc.)379. This document had never been seen nor prepared by O’Connor.

 

[526] This document that emanated from Malobabic or at her behest constituted another element of evidence confirming her statement made at the October 20, 2005 meeting that:

 

Dan  was  awarded  with  1  of  MonRoi  common  share  for  his  9-months achievements, through InvestorCo.380

 

[Emphasis added]

 

[527] Despite her multiple denials at trial, this was another indication that on October 25, 2005, Malobabic was treating O’Connor as one of the shareholders of InvestorCo as per their agreement.

 

[528] In early January 2006, although the Addendum to the FIDE MOU had not yet been signed with FIDE, O’Connor was asked by Malobabic to work extensively on various issues involving FIDE, including the review of a FIDE press release promoting MonRoi products, elaborating MonRoi’s marketing strategy, making arrangements for FIDE’s 2006 Chess Olympiad in Turin, Italy, assisting with Malobabic’s article to be published with ChessBase GmbH and preparing for upcoming meetings with the United States Chess Federation (“USCF”), who now was as important as FIDE, in the eyes of Malobabic.

 

[529] On January 12, 2006, O’Connor reported to Malobabic on his latest conversation with a certain Paul from the USCF. Malobabic replied as follows:

Subject: Re: U.S. - PAUL - QUICK UPDATE

Great! I am glad that you will work well with Paul.

No one said that making Millions / Billions would be easy.

If it is easy, everyone would do it. But, we made some impressive steps so far. Send me an email about the conclusions. I forget things, my old age ...381 [Emphasis added]

[530]  All seemed to be going well between O’Connor and Malobabic at the time.

 

 

 

 

 

379 PDO-68, page 002547.

380 PDO-68, page 002534.

381 PDO-77, page 80.


 

[531] On January 16, 2006 at 5:29 p.m., as there was a possibility that O’Connor would fly to Houston in connection with the USCF, he asked Malobabic for instructions382.

 

[532] A few hours later at 7:38 p.m., Malobabic replied the following to O’Connor asking him, inter alia, to call Morten Sand of FIDE. Clearly, Malobabic was still contemplating a broader involvement of O’Connor within MonRoi for the upcoming year:

Subject: Re: PLEASE CALL

I was thinking of you calling Morten. Please, feel free to do so at any time.383

 

 

All MonRoi information, which are not published on the MonRoi web-site are confidential. Any information, plans, financial, sales or other nature are not be divulged to anyone, and this includes Morten.

 

Stay assured that everything you speak with Morten will be known clearly by all FIDE. Do not make any commitments, or any statements, because MonRoi could be held liable. Unquestionably Morten was sent to ask for info and $. I am not

 

interested.

 

[…]

 

Your Main Objective in 2006:

 

Execute sales of 20,000 devices in United States.

 

Therefore I think that you should go Texas, and do it. Plan 26 January.

 

Keep in mind that Sales and Marketing requires a certain personality, which is opposite to good engineers. Reach the schools, get done deal with the USCF, sell devices in the US.

 

I look forward to receive your Sales proposal for Paul today. We need to avoid one more situation where we offered 2 % for retail distribution. Nothing personal.

 

Based on what I know, it is in the best interest of MonRoi that you do not handle international business, until you have some previous experience in making deals with people who have different mentalities. Again, please do not take it personal. Things sometimes are not as they look like. Like me for example me ... Ha, ha.

 

Thank you,

 

Brana.384

 

[Emphasis added]

 

[533]

Upon  reading  this  email,  Malobabic  was  obviously  expecting  O’Connor

to

contribute to the business of MonRoi in a different fashion (sales) and not to limit him to legal matters. This was not the attitude of someone profoundly displeased with the professional that she hired in April 2005, despite his alleged total lack of knowledge of the

 

 

382 PDO-77, page 91.

383 O’Connor testified that the telephone call was a productive one as the FIDE officials were contemplating coming to Montreal to pursue their negotiations with MonRoi and to resolve any outstanding issues regarding the Addendum that had been drafted in San Luis, Argentina.

384 PDO-77, page 92.


 

chess market, inappropriate behaviour, incompetence and uncountable professional and ethical faults.

 

[534] On January 16, 2006 at 8:30 p.m., O’Connor wrote back as follows to Malobabic that he was going to reconsider the trip to Houston and that he would let her know on January 17th whether he could go or not:

I am not a sales and marketing specialist, nor am I an expert at preparing marketing materials. Here is some text regarding the options for a tournament director.

I'm going to re-consider the trip to Houston. I'll let you know tomorrow whether I can go or not.385

[535] On the following day, January 17th at 10:04 a.m., O’Connor reported to Malobabic his telephone conversation with Sand of FIDE and that there were still issues with MonRoi who not signed the Addendum to the FIDE MOU:

Subject: CALL TO MORTEN

Attachments: 001_A_001_Dan_Call MS Jan 17, 2006_2006_01_ 17.dvf Brana:

I spoke with Morten just now. He is in Athens. The call was 16 minutes and I recorded it using the speaker phone and the digital voice recorder.

I have attached the digital voice file, which is quite small but can only be played through your device I believe unless you convert the format to .wav.

I will also send the .wav file in a separate message, but this is 21 MB and probably will not get through the servers.

The call was productive in that Morten will try to get Makropoulos [a member of FIDE board of directors] to agree to issue the press release and Morten is also supposed to send me a summary of what they see as the issues and their approach to resolving them - we'll see. They still want to meet somewhere to resolve all "issues".

Let me know what you think.

Dan386

[Emphasis added]

[536]  Malobabic responded with a single word showing her approval of O’Connor’s work:

 

Excellent!387

 

 

 

 

 

 

385 PDO-77, page 94.

386 PDO-71, page 003186; PDO-77, page 97.

387 PDO-71, page 003188; PDO-77, page 101.


 

[537] At 11:11 a.m. on January 17th, O’Connor responded to Malobabic’s new and different request for his advice regarding the British Chess Federation388.

 

[538] Two hours later at 1:19 p.m., wanting to clarify his situation and future with MonRoi, O’Connor sent to Malobabic his proposed terms for his possible engagement by MonRoi, bearing in mind that the latter was giving indications that his services could be useful in other areas than legal:

Su