Ontario Court of Appeal judges wrote in their decision to dismiss the appeal that the relatives were trying to relitigate facts that had already been decided by the courts.Fred Lum/Globe and Mail
An Ontario court has dismissed an appeal from the relatives of the late Barry Sherman, calling their bid to overturn a previous court decision and seize part of Mr. Sherman’s generic-drug fortune an “abuse of process.”
“There is no error in the motion judge’s meticulous analysis or findings," Ontario Court of Appeal judges Robert Sharpe, R.G. Juriansz and L.B. Roberts wrote in their decision to dismiss the appeal. The relatives, they wrote, were trying to relitigate facts that had already been decided by the courts.
The denied appeal is the latest episode of a bitter family feud. It resulted in years of legal battles between the late Mr. Sherman and his relatives, and has continued since Mr. Sherman and his wife, Honey, were found murdered in December. Mr. Sherman’s relatives – Kerry Winter, Jeffrey Barkin, Paul Barkin and Julia Winter, representing the late Dana Winter – have alleged that Mr. Sherman committed to look after their financial interests following the death of their parents when they were young, but broke that pledge, entitling them to compensation. After years of legal tension, Justice Kenneth Hood threw out the relatives' action last September, saying there was “no genuine issue requiring a trial."
The origins of the case began in 1965, when Louis Winter, owner of Toronto-based Empire Laboratories, died suddenly. His wife Beverley died just 17 days later. After their deaths, their nephew Mr. Sherman bought Empire with his friend Joel Ulster. Within a decade, the pair had sold the company for around eight times the amount they bought it for. Two years after the sale, Mr. Sherman and Mr. Ulster founded the generic drug company Apotex Inc., which started on shaky ground but would eventually turn Mr. Sherman into a billionaire.
The relatives, Mr. Sherman’s first cousins, have alleged that Mr. Sherman broke his duty to care for their financial interests and therefore they’re owed a 20-per-cent interest in Apotex or the equivalent in damages. Before his death in December, Mr. Sherman called his relatives' claims “absurd,” filing his own lawsuits in response.
After the relatives' action was dismissed by Justice Hood last year, their appeal claimed that the judge failed to recognize “the crux of the present action against the respondents,” which was whether Mr. Sherman owed them an “ad hoc” duty. The appeal court dismissed this claim, reiterating the motion judge’s findings.
“It was up to [estate trustee] Royal Trust to look after the plaintiffs’ interests, not Sherman,” they wrote. “There was only so much that Sherman was prepared to do for the plaintiffs if he was to become the buyer of the Empire Companies. Royal Trust knew that. At the end of the day, Sherman was looking after his own interests – not those of the plaintiffs.”
It would be unfair, they agreed, to allow the cousins to relitigate their case with a new theory, where others failed.
The relatives' lawyer, Brad Teplitsky, declined to comment on the outcome of the appeal bid and whether his clients will continue to pursue their case against the estate of Mr. Sherman. Apotex also declined to comment “as this is a private family matter,” said company spokesperson Jordan Berman.
The surviving Sherman family, Mr. Berman added, did not wish to be contacted.