OMNUS INVESTMENTS LTD v RETHINK AND DIVERSIFY SECURITIES INC, 2018 ABQB 868
7.3: Summary Judgment (Application and decision)
In the summer of 2016, the Plaintiff, Omnus Investments Ltd (“Omnus”) and the Defendant, Rethink and Diversity Securities Inc. (“R&D”) agreed that Omnus would sell all or substantially all of its assets to R&D (the “APA”). The initial closing date of the APA was November 30, 2016. For various reasons, the APA did not close on November 30 but the parties continued to work towards closing following that date. On the eve of closing in January 2017, and without warning, R&D provided notice to Omnus that it was terminating the APA on the basis that closing had not occurred at the prescribed time.
In response, Omnus and its shareholders commenced the within Action and in accordance with Rule 7.3, filed an Application for Summary Judgment. Master Birkett noted that the overarching question to be decided was whether R&D was entitled to terminate the APA between the parties prior to the revised closing date. Master Birkett examined the existing record before the Court to see if a disposition that was fair and just to both parties could be made on that record and concluded that the case was appropriate for Summary Judgment.
Master Birkett reviewed the relevant jurisprudence and determined that R&D was estopped from relying on the termination clause as the reason for not completing the transaction on the basis that closing had not occurred on or before November 30, 2016. As such, Master Birkett granted Omnus’ Application for Summary Judgment and awarded $434,500 plus interest in accordance with the APA.
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