加国无忧法律诉讼（II）: 赵平源无权收购其兄股份

在加国无忧公司于2002年进行注册时，赵平原将15%股权作为礼物赠送给哥哥赵平波。但是随着该网站名声鹤起，利润不断增加，兄弟二人的利益纷争亦逐步升级。2010年，赵平波发布公开信暴露了兄弟二人之间的内部冲突，凸显出在公司辉煌与成功之背后的内讧纷争。随之而来的一场代价高昂的法庭官司战让两兄弟心力交瘁，财源受损。在经过14天的审判后，法庭在2016年4月公布了“判决理由”，随后又在2016年11月公布了“补充判决理由”，给这场长达近5年的漫长而又代价高昂的官司战画上了句号。

When 51.ca was registered as a corporation in 2002, Pingyuan Zhao offered 15% of shares to his brother Pingbo as a gift. But as the website enjoyed growing popularity and financial success, the brothers’ fight over company’s profits escalated.  In 2010, Pingbo published an open letter, in which he disclosed the internal clashes between the brothers, revealing the dark side to the company’s glories and success. A costly legal battle ensued that has taken emotional tolls on the brothers and put a strain on their financial resources. After a lengthy court battle that included 14 days of trial, the court issued “reasons for judgement” in April 2016 and “supplemental reasons for judgement” in Nov.2016, putting an end to a stressful and costly legal battle that lasted for almost five years. 

法庭在2016年4月公布的“判决理由”认定，赵平波并非为其所愿非成为公司事实上的40%的合伙人，而是以独立承包商身份为公司提供了服务。法庭亦认定，赵平原在公司注册之时将股份作为礼物赠送给赵平波后，赵平波便是该公司持股15%的股东，而就这些股份而言， 公司从未进行过分过红，且不打算在日后分红。

The “reasons for judgement” issued in April 2016 concluded that Pingbo did not forge a 40% partnership relationship with the company as he claimed and that he provided services to the company as an independent contractor. It also recognized that Pingbo was a 15% shareholder, with shares given to him as a gift by Pingyuan at the time when the company was incorporated. However, according to the court, no dividends were ever paid, or are expected to be paid on such shares. 

由于赵平波在2010年10月发布了公开信，赵平原随即终止了他的独立承包商雇佣合约。可是，赵平原似乎并不满足于仅仅切断其哥哥的雇佣关系，而是决心与平波彻底决裂，切断平波与公司和平原尚存的唯一联系。他因此寻求法庭颁令，让加国无忧根据公司2010年8月28日的价值回购赵平波的所有股份。而据法庭根据加国无忧的收入潜力和资产估计，公司当日的合理价值为$345万元。

Since Pingbo published the open letter in Oct. 2010, his employment as an independent contractor was ended by Pingyuan. But cutting off the service relationship with his brother seemed not enough, as Pingyuan determined to sever all ties with his brother.  He sought a court order that 51.ca repurchases all the shares from Pingbo, the only connection he kept with the company and his brother, based on the company’s value on Aug 28, 2010. The court’s estimation of the company’s fair value on that date was $3.45 million, based on the evaluation of company’s earning potentials and assets.

赵平原在诉讼中指控，赵平波在担任公司主管期间滥用职权，将个人利益置于公司之上。赵平原在其诉状中对赵平波提出一系列指控，包括他未曾将所有广告收入存入公司账户；他未曾正确记录所有收入，从而导致公司遭到加拿大税务局的起诉；他通过公开信泄露了公司的敏感机密信息；他公然告知竞争对手和客户“加国无忧最辉煌的日子已经过去”，并公开了公司有关业务收入和广告模式的详细信息。

Pingyuan claimed that Pingbo abused his role as director of the company, putting his own interest above the company. He made a slew of accusations against Pingbo in his legal claim: He failed to deposit all advertising avenues into the company’s account; He failed to properly record all revenues, exposing the company to Revenue Canada’s prosecution; He disclosed company’s sensitive and confidential information through open letters; He publicly informed the competitors and customers that “the best day of 51.ca are over”, and published details of the business revenues and advertising model.

法庭称，虽然赵平波的一些行为可能令赵平原感到难堪，但公司业务并没有因此受损，而是在赵平原的独立管理下繁荣发展。此外，赵平波并没有从赵平原所指从这些行动中获利，并且他因此给自己所带来的难堪会胜于其他人士。

The court stated that while some of Pingbo’s actions may have caused Pingyuan some embarrassment, the business did not suffer from them but instead prospered under Pingyuan’s sole management. Moreover, the court says that Pingbo had not profited in any manner from his actions as Pingyuan claimed, and that he may have suffered more embarrassment from them than others.

法庭驳回了赵平原提出的多项指控，其中包括赵平波未曾据实申报需纳税的现金收入，并称这表明赵平原当时对这些行为心知肚明，但却没有采取行动阻止。法庭进一步称，赵平波是以独立承包商身份，而不是对公司负有诚信义务的主管或官员身份从事这些所指控的行为。法庭还称，作为一个小股东，赵平波对赵平原亦不负有任何诚信义务。

The court dismissed several of Pingyuan’s allegations, including Pingbo’s failure to disclose cash revenues for tax purposes, stating that Pingyuan was aware of the practices at the time but took no action to change it.  It further stated that Pingbo was taking these alleged actions as an independent contractor, rather than a director or an officer who owed a fiduciary duty to the company. Nor did Pingbo owe a fiduciary duty to Pingyuan as a minority shareholder, says the court. 

赵平原辩称，作为持股85%的大股东，他与哥哥之间长期存在的“不可调和之矛盾”已经导致他们的关系走到濒临决裂的地步。但是法庭驳回了他的论点，称大小股东间存在类似矛盾是平常之事，并且双方破裂的关系并未阻碍赵平原在2010年之后继续发展业务。据法庭称，虽然赵平原可以终止赵平波的雇佣合约，但他无权要求其出售所持的公司股份。法庭指出，赵平波的行为不足以让法庭下令剥夺其手中股份，并否决了赵平原要求赵平波出售股份的申请。

Pingyuan argued that as an 85% shareholder, he and his brother had maintained “irreconcilable differences” to the point that they should wind up their relationship. But the court refuted his argument saying that such a difference between a major and a minority shareholder are a common and that the relationship breakdown has not prevented Pingyuan from continuing to carry on the business since 2010. According to the court, while Pingyuan could end Pingbo’s employment contract, he had no right to request him sell his shares in the company. The court indicated that Pingbo’s conduct did not warrant the court ordering to take away the shares from him. It denied Pingyuan’s request to have Pingbo’s shares sold.

这是一场没有赢家的法庭之战。法庭判决未能让任何一诉讼方达到其预期目的，给诉讼双方都带来了一个悲凉的结局。为此，法庭在进行费用裁决时，拒绝做出对任何一方有利的决定。

The court battle between the brothers ended on a sad note as neither party had achieved its desired results entirely or is absolutely satisfied with the outcome. It was a battle without a winner at the end. As such, the court declined to award the cost in favor of either party involved.