Oppression Actions of Minority Shareholders

Oppression Actions of Minority Shareholders

Oppression actions of minority shareholder rights in companies was discussed in detail in Healthcare of Ontario Pension Plan v Neuro Discovery 2 Limited Partnership 2017 BCSC 1743

The Claims in Oppression

18 The claims in oppression are based upon s. 227 of the BCA, which is as follows:

Complaints by Shareholder

227 (1) For the purposes of this section, “shareholder” has the same meaning as in section 1 (1) and includes a beneficial owner of a share of the company and any other person whom the court considers to be an appropriate person to make an application under this section.

(2) A shareholder may apply to the court for an order under this section on the ground
(a) that the affairs of the company are being or have been conducted, or that the powers of the directors are being or have been exercised, in a manner oppressive to one or more of the shareholders, including the applicant, or
(b) that some act of the company has been done or is threatened, or that some resolution of the shareholders or of the shareholders holding shares of a class or series of shares has been passed or is proposed, that is unfairly prejudicial to one or more of the shareholders, including the applicant.

(3) On an application under this section, the court may, with a view to remedying or bringing to an end the matters complained of and subject to subsection (4) of this section, make any interim or final order it considers appropriate, including an order

(a) directing or prohibiting any act,
(b) regulating the conduct of the company’s affairs,
(c) appointing a receiver or receiver manager,
(d) directing an issue or conversion or exchange of shares,
(e) appointing directors in place of or in addition to all or any of the directors then in office,
(f) removing any director,
(g) directing the company, subject to subsections (5) and (6), to purchase some or all of the shares of a shareholder and, if required, to reduce its capital in the manner specified by the court,
(h) directing a shareholder to purchase some or all of the shares of any other shareholder,
(i) directing the company, subject to subsections (5) and (6), or any other person, to pay to a shareholder all or any part of the money paid by that shareholder for shares of the company,
(j) varying or setting aside a transaction to which the company is a party and directing any party to the transaction to compensate any other party to the transaction,
(k) varying or setting aside a resolution,
(l) requiring the company, within a time specified by the court, to produce to the court or to an interested person financial statements or an accounting in any form the court may determine,
(m) directing the company, subject to subsections (5) and (6), to compensate an aggrieved person,
(n) directing correction of the registers or other records of the company,
(o) directing that the company be liquidated and dissolved, and appointing one or more liquidators, with or without security,
(p) directing that an investigation be made under Division 3 of this Part,
(q) requiring the trial of any issue, or
(r) authorizing or directing that legal proceedings be commenced in the name of the company against any person on the terms the court directs.

(4) The court may make an order under subsection (3) if it is satisfied that the application was brought by the shareholder in a timely manner.

(5) If an order is made under subsection (3) (g), (i) or (m), the company must pay to a person the full amount payable under that order unless there are reasonable grounds for believing that
(a) the company is insolvent, or
(b) the payment would render the company insolvent.
(6) If reasonable grounds exist for believing that subsection (5) (a) or (b) applies,
(a) the company is prohibited from paying the person the full amount of money to which the person is entitled,
(b) the company must pay to the person as much of the amount as is possible without causing a circumstance set out in subsection (5) to occur, and
(c) the company must pay the balance of the amount as soon as the company is able to do so without causing a circumstance set out in subsection (5) to occur.

(7) If an order is made under subsection (3) (o), Part 10 applies.

19 The applicants argue that the relationship between the parties is governed by three interrelated agreements: (i) the LP agreement, (ii) the IM agreement, and (iii) a subscription agreement. They argue that the reasonable expectations pleaded are simply that the terms of the agreements will not be breached, and that, without more, these cannot ground an oppression claim. They argue that the oppression remedy is not intended to be used to resolve limited partnership disputes where there are detailed agreements made between sophisticated parties. For this proposition they rely on authorities such as BCE Inc., Re, 2008 SCC 69 (S.C.C.) [BCE]; Hui v. Hoa, 2015 BCCA 128 (B.C. C.A.); 1043325 Ontario Ltd. v. CSA Building Sciences Western Ltd., 2016 BCCA 258 (B.C. C.A.) [CSA]; Landvis Canada Inc. v. Ocean Choice International Limited Partnership, 2016 NLTD(G) 4, 377 Nfld. & P.E.I.R. 250 (N.L. T.D.) [Landvis]; Stahlke v. Stanfield, 2010 BCSC 142 (B.C. S.C.); Cote v. Milltown Marina & Boatyard Ltd., 2015 BCSC 2033 (B.C. S.C.) [Cote]; J.S.M. Corp. (Ontario) Ltd. v. Brick Furniture Warehouse Ltd., 2008 ONCA 183 (Ont. C.A.) [J.S.M.]; Finness Yachting Inc. v. Menzies, 2016 BCCA 360 (B.C. C.A.).

20 In making their submissions, the applicants made extensive reference to the terms of the LP agreement. Such evidence is not admissible on this type of application.

21 The authorities are clear that oppression claims are fact-specific and contextual. The required analysis cannot be undertaken on this application, in the circumstances of this case. In the result, it is not plain and obvious to me that the petitioner’s claims in oppression are bound to fail.

22 I adopt the discussion of BCE found in the decision of N. Smith J. in Cote, as follows:

65 The leading authority on the oppression remedy is the decision of the Supreme Court of Canada In BCE Inc. v. 1976 Debentureholders, 2008 SCC 69. That case dealt with the equivalent provision in the Canada Business Corporations Act, R.S.C. 1985, c. C-44, s. 241, which protects not only shareholders but also creditors, officers, and directors. The court therefore uses the term “stakeholder,” but the use of that general term cannot be taken as authority for extending the application of the provincial statute beyond what is contemplated by s. 227.

66 However, the court confirmed a number of general principles, including:

• The court has a “broad, equitable jurisdiction to enforce not just what is legal but what is fair.” Courts considering claims for oppression “should look at business realties, not merely narrow legalities”: para 58;

• The remedy is concerned with the reasonable expectation of shareholders and is subject to a two-part inquiry: whether the evidence supports “the reasonable expectation asserted by the claimant” and whether it establishes “that the reasonable expectation was violated by conduct falling within the terms ‘oppression’ or ‘unfair prejudice’: para 68;

• The petitioner “must identify the expectations that he or she claims have been violated by the conduct at issue and establish that the expectations were reasonably held”: para 70;

• The existence of a reasonable expectation is to be determined objectively, based on the circumstances. The actual or subjective expectations of the petitioner are not determinative: para 62;

• Factors that may be relevant to determining whether a reasonable expectation exists include: “general commercial practice; the nature of the corporation; the relationship between the parties; past practice; steps the claimant could have taken to protect itself; representations and agreements; and the fair resolution of conflicting interests between corporate stakeholders”: paras 72-81; and

• Oppression is conduct that is “burdensome, harsh and wrongful,” a “visible departure from standards of fair dealing,” and an “abuse of power.” It is a wrong of the most serious sort. “Unfair prejudice” may involve less offensive conduct, such as squeezing out a minority shareholder, preferring some shareholders with management fees, or failing to disclose related party transactions: paras 92-93.

23 As noted above, in BCE, the court endorsed a two-step analysis to oppression claims: (1) one should look first to the principles underlying the oppression remedy, and in particular the concept of reasonable expectations; (2) if a breach of a reasonable expectation is established, one must go on to consider whether the conduct complained of amounts to “oppression”, “unfair prejudice” or “unfair disregard” as set out in s. 241(2) of the CBCA; paras. 56, 68.

24 The court summarized this as follows:

68 In summary, the foregoing discussion suggests conducting two related inquiries in a claim for oppression: (1) Does the evidence support the reasonable expectation asserted by the claimant? and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression”, “unfair prejudice” or “unfair disregard” of a relevant interest?

25 The BCA refers only to “oppression” and “unfair prejudice”, not “unfair disregard”. This does not affect the nature of the appropriate analysis.

26 Given the nature of the relief and the remedies, the assessment of oppression claims is inevitably fact specific, and contextual: BCE, paras. 59, 62, 71 and 82.

59 …like many equitable remedies, oppression is fact-specific. What is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play. Conduct that may be oppressive in one situation may not be in another.
. . .

62 As denoted by “reasonable”, the concept of reasonable expectations is objective and contextual. The actual expectation of a particular stakeholder is not conclusive. In the context of whether it would be “just and equitable” to grant a remedy, the question is whether the expectation is reasonable having regard to the facts of the specific case, the relationships at issue, and the entire context, including the fact that there may be conflicting claims and expectations.
. . .

71 It is impossible to catalogue exhaustively situations where a reasonable expectation may arise due to their fact-specific nature. …
. . .

82 …There are no absolute rules. In each case, the question is whether, in all the circumstances, the directors acted in the best interests of the corporation, having regard to all relevant considerations, including, but not confined to, the need to treat affected stakeholders in a fair manner, commensurate with the corporation’s duties as a responsible corporate citizen.

27 As Justice Newbury stated in Icahn Partners LP v. Lions Gate Entertainment Corp., 2011 BCCA 228 (B.C. C.A.) [Icahn Partners], at para. 1, “…the analysis in each case is highly contextual and fact-specific…” See also CSA at para. 50, “…the analysis in each case is highly contextual and fact-specific…” per Newbury J.A.. Clearly, then, whether oppression is available in a given case depends on the nature of the claims, the evidence, and the full context.

28 Representations and agreements may be relevant considerations: BCE, paras. 72, 78, 79. This includes the question of whether the claimant could have protected itself in the negotiations leading to a relevant agreement. It may be difficult for a claimant to establish a reasonable expectation that it could have negotiated, but did not. The results in both BCE and Cote are examples of this. See BCE at para. 108; Cote, paras. 78-82.

29 The applicants rely heavily on Landvis. However that case does not go as far as they would require in order to succeed on this application. There, Orsborn C.J.T.D. stated:

[141] From the decisions in BCE and J.S.M., I take that in circumstances involving sophisticated participants in a commercial relationship which was entered into on the basis of comprehensive written agreements, it would be the exceptional case where a complainant could establish, for the purpose of pursuing an oppression claim, a reasonable expectation that exists independently from the rights and obligations set out in the agreements. In any commercial relationship with serious participants and serious money at stake, the reasonable observer would expect the negotiated agreements to represent the sum total of the parties’ expectations of each other […]
[Emphasis added].

30 The reference to “the exceptional case” demonstrates that the claims of the petitioner cannot be struck out on the basis of this principle. The principle is not absolute.

31 Likewise, in CSA Newbury J.A. stated:

53 It is clear the oppression action was intended to permit courts to remedy oppressive or unfairly prejudicial conduct not generally susceptible to correction by other forms of redress. Where the claimant already has a clear remedy — in contract, tort, or debt, for example — the court is unlikely to grant a remedy under s. 227.
[Emphasis added]

32 In Madco Investments Ltd. v. Western Tank & Lining Ltd., 2017 BCSC 219 (B.C. S.C.), the defendants applied to strike out the oppression claims of the plaintiff. They argued that the plaintiff could not pursue an oppression remedy as an alternative to his claims in wrongful dismissal. DeWitt-Van Oosten J. held that the law was not as absolute as the applicants contended, and that whether the plaintiff would be entitled to an oppression remedy would depend upon the evidence at trial. Her comments are apt to the application before me:

37 The defendants argue that [CSA] and Cote support two fundamental propositions; namely, that a claim in oppression cannot be advanced on the same set of circumstances that give rise to another identifiable cause of action, and, in any event, to initiate an action in oppression, a plaintiff must plead specific breaches of a “reasonable expectation” that are held as a shareholder or qua shareholder and for which a breach cannot be remedied in any other form.

38 I do not read [CSA] and Cote this way. I accept from these cases that the remedy for oppression established under s. 227 was created as a means by which to provide shareholders and qua shareholders with an avenue for equitable relief against unfairly prejudicial treatment in circumstances where remedial intervention by the courts might not otherwise be available. However, I do not take from these cases the absolutisms that are posited by the defendants.

39 As I understand these authorities, the factual matrix pled in support of an oppression claim can be one that also supports another cause of action. However, after a trial on the merits, it will be up to the trial judge to decide whether one, both or all of the causes of action that were pled have been established on the evidence.

40 Because of the unique nature of the oppression remedy, and the need for proof of a “reasonable expectation” of a shareholder or qua shareholder that has been breached, it may be that the evidence does not meet the test for oppression and the claim is dismissed. A remedy for oppression is intended to rectify oppressive conduct within the meaning of the enabling legislation, not some other form of wrongdoing.

However, this does not mean that a plaintiff cannot include a claim for oppression as an alternative pleading arising out of a set of facts that is said to engage both oppressive conduct and other alleged wrongs.

33 Similarly, in the case before me, questions as to whether the petitioner’s asserted expectations are reasonable and whether, if so, breach thereof is oppressive or unfairly prejudicial should be decided at trial.

34 Claims in oppression may overlap with other civil claims: CSA, at para 54; Icahn Partners at para 71 (fiduciary duty); Furry Creek Timber Corp. v. Laad Ventures Ltd. (1992), 75 B.C.L.R. (2d) 246 (B.C. S.C.), at 254 (derivative action); Malata Group (HK) Ltd. v. Jung, 2008 ONCA 111 (Ont. C.A.) at para. 30, citing Jabalee v. Abalmark Inc., [1996] O.J. No. 2609 (Ont. C.A.) at para 5 (derivative action); Fedel v. Tan, 2010 ONCA 473 (Ont. C.A.) at paras. 56-57 (contract).

35 The applicants argue that the oppression remedy is unavailable as the claims the petitioner advances are in its capacity as a limited partner, not a shareholder.

36 The applicants rely on Landvis, at para. 158, for this proposition:

[158] Recourse to the statutory remedy is only available when the complaint concerns corporate conduct or affairs. It is not available when the complaint relates to the functioning of a relationship such as a partnership.

37 Unlike the case before me, in Landvis the judge considered the evidence. See para 20: “These applications require an evidentiary assessment.” I must infer that the Rules of Court for Newfoundland and Labrador relating to applications to strike out differ from British Columbia’s Rules.

38 In any event, in Landvis, Orsborn C.J. qualified his comments, as follows:

170 Of course, even in the context of a partnership or relationship, to the extent that oppressive conduct may properly be considered as that of a corporate participant and prejudicial consequences of such conduct can be said to accrue to a ‘complainant’ as defined by the governing legislation, recourse to the statutory oppression jurisdiction may still be appropriate.

39 Here, the petitioner alleges that it is the beneficial owner of Viable. Section 227 of the BCA allows a beneficial owner of a share of the company to apply for relief.