The Ontario Superior Court of Justice has resolved a long-running shareholder battle between the co-owners of an Ottawa-based precision optics and engineering company, dismissing allegations of constructive dismissal and declining to appoint a receiver to wind up the business1. In reasons for judgment released on June 11, 2026, Justice Adriana Doyle determined that while majority owner Brian W. Creber acted within legitimate business discretion during periods of corporate distress, he unfairly disregarded the rights of minority shareholder Kirk Guttin by restricting access to financial records and software.
The dispute centres on B-Con Engineering Inc., an optics manufacturing firm founded by Mr. Creber in 1988 and incorporated in 1997, and BCE Realty Ltd., a real estate holding corporation formed in 2004 to hold the operating facility at 14 Capella Court in Ottawa. Through numbered holding companies, Mr. Creber controlled a majority voting interest in both entities, holding 77.2 percent of B-Con and 58.8 percent of BCE Realty. Mr. Guttin held minority stakes of 22.8 percent and 41.2 percent, respectively. While B-Con was governed by a formal unanimous shareholder agreement signed in 1997, BCE Realty had no executed shareholder agreement.
B-Con achieved substantial growth between 2008 and 2015, largely due to a lucrative manufacturing contract with an American military contractor. However, the company lost the contract in 2016 following changes in United States procurement policy under the Buy American Act. The loss led to severe operational cash crunches, sparking sharp disagreements between the two co-owners regarding compensation, debt servicing, and corporate strategy.
Mr. Guttin brought his initial court application in 2019, followed by a second application on behalf of his holding companies in 2023. He alleged that Mr. Creber engaged in pervasive oppressive conduct under Section 248 of the Ontario Business Corporations Act. Among his claims, Mr. Guttin sought 167,455.67 dollars for constructive dismissal, asserting that changes to his remuneration structure breached essential terms of his employment. He also challenged Mr. Creber’s charging of 7 percent interest on shareholder rescue loans, the payment of corporate salaries to Mr. Creber and his son, the delay in selling the Capella property, and the acquisition of corporate bank debt by Mr. Creber’s holding company. As an ultimate remedy, Mr. Guttin requested the court appoint a receiver-manager to wind up both companies.
Justice Doyle systematically reviewed the factual history, beginning with the employment and compensation arrangements. Between 2007 and 2016, B-Con paid formal salaries to both owners to qualify for Canada Revenue Agency Scientific Research and Experimental Development tax incentives. When those credits lapsed in 2016, the company ceased salary payments and returned to its earlier historical practice of issuing draws as shareholder loans, which were subsequently cleared at year-end through declared dividends. In 2018 and 2019, because B-Con was cash-strapped, corporate accountants recommended that dividends be declared from BCE Realty instead.
The court rejected the constructive dismissal claim on two independent grounds. First, Justice Doyle held that the claim was statute-barred under the Limitations Act, 2002. Mr. Guttin last received an employment wage and T4 tax slip in 2016, placing his December 2019 application outside the mandatory two-year limitation period. Second, applying the Supreme Court of Canada framework in Potter v. New Brunswick Legal Aid Services Commission, the judge found that shifting from wages to dividends did not substantially alter an essential term of employment, as it was an established historical practice implemented upon professional accounting advice during financial hardship. Furthermore, the court noted Mr. Guttin chose to disengage from operations in 2020 and subsequently secured employment elsewhere in early 2021.
Justice Doyle then examined the allegations of corporate oppression under the governing framework from BCE Inc. v. 1976 Debentureholders. The court held that the 2023 oppression application was not statute-barred, as later discrete actions, such as learning of specific interest accruals in September 2021, gave rise to timely causes of action.
Turning to the merits of the oppression claims, the court upheld the majority of Mr. Creber’s operational decisions under the business judgment rule. Justice Doyle noted that courts will not second-guess the good-faith business decisions of directors where their actions fall within a range of reasonable alternatives.
Regarding the 7 percent interest charged on shareholder rescue loans and the reinvestment of dividends back into B-Con, the court found that Mr. Creber had personally injected capital to keep the business operational. Although Section 2.06 of B-Con’s shareholder agreement restricted interest on pro-rata loans, the agreement expressly permitted interest on excess advances where one shareholder failed to contribute. Because BCE Realty lacked a signed shareholder agreement and the 7 percent rate was commercially normal, the court concluded that the financing arrangements did not amount to oppression or unfair prejudice.
The court reached a similar conclusion regarding executive remuneration and commercial loans. Mr. Creber’s hourly wage of 51.68 dollars was deemed fair market compensation for an engineer with four decades of experience, particularly because it allowed B-Con to re-qualify for federal research tax credits that subsidized roughly 60 percent of engineering payroll. Similarly, employing Mr. Creber’s son Bobby, who had worked at the company for twelve years and obtained trade credentials, did not breach any reasonable expectations.
Justice Doyle also evaluated the contentious history surrounding the commercial real estate at 14 Capella Court. In early 2022, an offer to purchase the property for 3.5 million dollars fell through because Mr. Guttin refused to execute mutual releases or acknowledge existing shareholder liabilities. To prevent the Royal Bank of Canada from executing on defaulted corporate debt and lines of credit, Mr. Creber’s holding company, 2047023 Ontario Inc., purchased the bank’s debt position and registered an 11 percent mortgage against the property. When municipal property tax arrears mounted to over 465,000 dollars in 2025 and the City of Ottawa threatened a municipal tax sale, Mr. Creber secured bridge mortgage financing at 12.99 percent interest from private lender Richard Lafrance to satisfy the arrears.
Justice Doyle found that Mr. Creber’s steps were legitimate rescue measures taken to protect the asset under urgent deadlines when Mr. Guttin offered no alternative capital or financing solutions. The court ruled that Mr. Creber was not required to surrender his own viable legal defenses or litigation rights merely to force an immediate commercial closing on Mr. Guttin’s terms.
However, the court found in favour of Mr. Guttin on his claim regarding corporate disclosure. Justice Doyle established that as a director and substantial shareholder, Mr. Guttin had an objective reasonable expectation of timely access to accurate corporate books, banking records, and accounting software. The evidence demonstrated that Mr. Creber changed banking codes, altered QuickBooks passwords, provided outdated software files that were expensive to open, and withheld routine financial visibility. Justice Doyle ruled that these delays and denials constituted conduct that unfairly disregarded Mr. Guttin’s statutory rights under Section 248 of the Act.
Addressing the appropriate remedy under Section 249, the court firmly rejected the appointment of a receiver-manager or the liquidation of B-Con. The court cited appellate authority establishing that remedial discretion should function like a scalpel rather than a battle axe, selecting the least intrusive mechanism necessary to address the established wrong.
The evidence established that B-Con had pivoted successfully into nuclear waste management and decontamination engineering, securing profitable contracts with Quantum Leap Energy, projecting 340,000 dollars in pre-tax profit for 2025, and expanding its workforce. Additionally, the company held specialized Professional Engineers Ontario authorization and Controlled Goods Program certification under the Defence Production Act, which a court-appointed receiver could not readily satisfy without jeopardizing sensitive operations and national security clearances.
Instead, Justice Doyle structured a tailored remedy focused on the pending June 2026 closing of 14 Capella Court at 3.6 million dollars. The court ordered that Mr. Guttin receive full transactional disclosure and be permitted to invoke corporate buy-sell mechanisms. From the real estate closing proceeds, closing fees and commissions must be paid first, followed by the first mortgage, the secured holding company debt, and the private bridge loan.
The remaining balance of the sale proceeds will be held in trust by the real estate closing solicitor pending a comprehensive accounting and formal determination of the final share values. If the parties are unable to reach an agreement on the equity valuation using certified business valuators, the court directed that the calculation be referred to an Associate Justice for a formal reference hearing. The parties were granted until August 2026 to resolve or submit written arguments regarding legal costs.
Read more about business cases in Canada here.
