Trilwood Investments Limited (Trilwood) and Wendco Inc. (Wendco) have been successful in a claim to retain a $5.5 million deposit paid by Barry Sherman of Bruce Agra Foods Inc. (Bruce Agra) for the intended purchase of Sweet Ripe Drinks Ltd. Bruce Agra withdrew from the deal on the day of closing and counterclaimed for the return of the deposit. The trial judge decided for Trilwood and Wendco on the basis that the $5.5 million was a proper “good faith” deposit and not a penalty. The Ontario Court of Appeal upheld the trial judge’s decision early last year, and in March, 2000 the Supreme Court of Canada dismissed Bruce Agra’s application for leave to appeal.
Randy Pepper and Sonia Bjorkquist of Osler, Hoskin & Harcourt LLP represented Trilwood and Wendco at trial and on appeal. Bruce Agra was represented by Fasken Campbell Godfrey (now Fasken Martineau DuMoulin LLP). Jeffrey Kaufman and Gideon Forrest were counsel at trial, with Claude Thompson, Q.C., leading the appeal team.