Winning Brands Corporation (WNBD)

[DrHarleyboy]

Did Mr. Perlman’s losses arise from fraudulent misrepresentation?


[40] Mr. Perlman also alleges that Mr. Lehner engaged in fraudulent misrepresentation when he represented the status of Winning Brands’ finances to him. I conclude that Mr. Lehner knowingly misrepresented Winning Brands’ finances and that Mr. Perlman was induced by the misrepresentation to make loans to the Defendants in November 2017, December 2017, and January 2018. By February 2018, Mr. Perlman was aware of the Defendants’ poor financial situation. He made the further loans in spite of that knowledge because he felt, as he describes it, “trapped.” By this point, he cannot be said to have been induced by Mr. Lehner’s prior statements.

[41] The test for fraudulent misrepresentation requires proof on a balance of probabilities showing: (i) a false representation by the defendant; (ii) some level of awareness of the falsehood of the representation on the part of the defendant (whether knowledge or recklessness); (iii) the false representation caused the plaintiff to act; and (iv) the plaintiff’s actions resulted in a loss: see Hryniak, at para. 87; Mughal v. Bama Inc. et al., 2019 ONSC 4504, at para. 12. As set out in Mughal, at para. 13: “Recent cases have placed less emphasis on the tortfeasor’s intention to deceive the Plaintiff, finding that where fraud is proved, the motive of the person committing the fraud is immaterial.”

[42] Here, I find that the representations Mr. Lehner made by email to Mr. Perlman dated November 14, 2017 constitute fraudulent misrepresentations, on which Mr. Lehner relied when he made the loans dated November 14, 2017, December 14, 2017, and December 18, 2017, for a total amount of $55,000 CAD.

[43] Addressing the first step of the test, I am satisfied that Mr. Lehner made a false representation. Shortly after Mr. Perlman made the loan to Supreme on October 30, 2017, Mr. Lehner asked Mr. Perlman whether he would continue lending funds to the Defendants. Mr. Lehner advised Mr. Perlman over the phone that he required a loan of $15,000 to pay another debt owed by the Defendants in order to ensure the Defendants did not default on that obligation.

[44] On November 13, 2017, Mr. Lehner provided Mr. Perlman with a loan document for a $15,000 loan to the Defendants, stating that the document had been prepared in the event Mr. Perlman decided to proceed with the loan. Mr. Perlman was hesitant to loan more money to the Defendants after he learned that his loan would be used to repay another loan. He was concerned that the Defendants had additional outstanding loans that had not previously been disclosed. He therefore emailed Mr. Lehner on November 14, 2017 expressing concerns and asking for information about other outstanding loans Winning Brands may have:

[I]s there any repayment penalty in the agreement if due date is not met? If not would you be open to some agreeable repayment penalty clause? Trust me I prefer no default but was a bit concerned after learning the $15k loan is to be used for not defaulting on another loan. I worry what would happen if that situation applied to me because of some delay from a buyer on an order. I hope you don’t have too many outstanding loans to be paid back from others? Perhaps you could disclose where you stand with that.

…

I am pretty sure I will move forward on this thus asking for banking information. Its [sic] better for me that you do well. You falling behind and me not helping with this could end up hurting me thus motivating me to go ahead, plus I want to help you.

[45] On November 14, 2017, Mr. Lehner responded with an email purporting to summarize other outstanding loans. He stated:

In terms of disclosure of short term transactional bridge loan, there is only you and Mr. Lugassy whom Tibor has known for a number of years. This type of funding would be too expensive to carry out on a larger scale, because the profit payments to the lender severely reduce the transaction margin (but is still appreciated because it is helping us to accelerate our business recovery).

Any other loan arrangements are institutionalized with monthly payments (secured by a mortgage on my house into monthly payments of about $3,500 per month) or long term founding lenders who have been with us for years and are being repaid from share issuances, such as Joe Canouse in Atlanta, and Blackbridge Capital in New York for example. (My step-mother Erika, who is in her 80’s, loaned the company $100,000 in 2015 when we ran into the delisting at that time of Walmart Canada and Canadian Tire. She was returning a favour that I had performed for her of a substantial nature many years earlier. She is declining in health, and I would like to utilize some of the Regulation A+ proceeds from Blackbridge Capital in New York to provide her with at least a partial cash payment as soon as possible because she is not in a position to make use of stock....

[46] Mr. Perlman’s evidence was that, based on Mr. Lehner’s response, he believed that the Defendants had some modest outstanding loans, including a $100,000 loan from a family member and some other debts that were being repaid in company shares. These amounts did not seem exorbitant to him and he was comfortable making additional short-term loans to the Defendants on the basis that their debts were not significant.

[47] However, I find that Mr. Lehner’s representations regarding Winning Brands’ outstanding loans were false both in what was said and what remained unsaid. In Winning Brands’ 2017 Q3 financial statements, which were signed and certified as accurate by Mr. Lehner on November 7, 2017 (approximately a week before the above email exchange), Winning Brands’ liabilities totaled almost $3.5 million. To the extent Mr. Perlman’s request for information was specific to information about loans, Winning Brands’ loans totaled over $2.3 million. In the financial statements, the loans were characterized as “Loans Payable – 2008 to present” (almost $1.5 million), “Loans Payable – 2006 & 2007” (over $88,000), and “Loans Payable – Brand Development” (over $700,000).

[48] In submissions, counsel suggested that Mr. Lehner’s description in the email above is not necessarily inconsistent with this list, as these loans could have fallen into the categories he referenced of institutionalized loans with monthly payments or long-term loans paid with share issuances. However, this is speculation on the record before me. While baldly denying that he misled Mr. Perlman, Mr. Lehner, in his affidavit, did not specifically state that the statements in the email were true, nor explain why. Moreover, it is difficult to square these statements with the list of amounts owed to third parties Mr. Lehner later provided in communications with Mr. Perlman’s counsel. This list includes multiple loans to individuals, such as $50,000 to “Angie Ricci”, $26,000 to “Armstrong”, $60,000 to “Berend and Jackie”, $2,000 to “Ron in Florida”, and so on, as well as debts to the CRA, the Ministry of Labour, and others. It does not contain anything that appears to fall within the category of “institutionalized loans”.

[49] Finally, non-disclosure of material facts can amount to fraud: see Canada Mortgage and Housing Corporation v. Evan Gray, 2013 ONSC 1986, at para. 34. In his response to Mr. Perlman’s question about loans, I find that Mr. Lehner downplayed the amounts owed. He misrepresented by omission when he vaguely referred to categories of loans but failed to advise that Winning Brands had loans in the amount of over $2.3 million and total liabilities of almost $3.5 million.

[50] Mr. Lehner’s statements meet the second part of the test, in that I find he knew they were false. Only a week earlier, he had certified the accuracy of the financial statements, including the almost $3.5 million in debt, over $2.3 million of which was in loans.

[51] I also find that the representations caused Mr. Perlman to act, in that he expressly sought assurance about outstanding loans prior to committing to making the loan in November 2017. Mr. Perlman previously had turned down other proposed loans (for example, an initial loan to Supreme in September 2017), but decided to go forward at this time after receiving Mr. Lehner’s information about Winning Brands’ loans. Mr. Perlman stated in his affidavit that he felt comfortable making additional short-term loans given the information Mr. Lehner provided.

[52] Mr. Lehner challenges Mr. Perlman’s alleged reliance on his representations by stating that Mr. Perlman “conducted, or could have conducted, the due diligence that he considered necessary before entering into any loan transactions.” He states that all necessary financial information was publicly available. Canadian courts have rejected categorically the defence of a lack of due diligence on the part of a victim of fraud: see Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club, 2002 SCC 19, [2002] 1 S.C.R. 678, at paras. 69-70; Man Financial Canada Co. v. Keuroghlian, 2008 ONCA 592, 240 O.A.C. 300, at para. 48; and Mughal, at para. 37.

[53] However, Mr. Lehner’s statements about Winning Brands’ loans only induced Mr. Perlman to make the loans of November 14, 2017, December 14, 2017, December 18, 2017, and January 26, 2018. These were the loans starting immediately after the fraudulent statements on November 14, 2017. Mr. Perlman suffered losses from these loans, as they remain unpaid.

[54] By February 2018, Mr. Perlman had become aware of the Defendants’ precarious finances. All of Mr. Perlman’s loans to the Defendants remained outstanding. On February 21, 2018, Mr. Lehner emailed Mr. Perlman to tell him that a deal he had been working on that promised significant returns had fallen through. He said he had intended to use those returns to pay back the outstanding loans. When Mr. Lehner asked Mr. Perlman for another loan, Mr. Perlman says he felt “trapped.” He was “terrified” that if Mr. Lehner’s business went bankrupt, he would lose everything and never be paid back for the loans he had made. He believed his options were to refuse and lose everything or provide additional loans and hope he eventually would be repaid. Given Mr. Perlman’s serious concerns about the Defendants’ finances, I cannot say that at this point he was induced by Mr. Lehner’s statements about Winning Brands’ finances to make the additional loans.

[55] In sum, Mr. Lehner’s representations, as detailed above, constitute fraudulent misrepresentation, which induced Mr. Perlman to make the loans from November to January 2018, causing him losses of $55,000 plus interest. I note that, as there is no evidence the Defendants have been assigned into bankruptcy, I am not making a declaration specifically under s. 178(1) of the BIA.


https://www.canlii.org/en/on/onsc/doc/2021/2021onsc612/2021onsc612.html