Author Archives: Jassmine Girgis

About Jassmine Girgis

B.A. (Calgary); JD (With Distinction) (Western); LL.M. (Cambridge). Associate Professor. Member of the Alberta Bar. Please click here for more information.

Fairness and The Corporate Oppression Remedy: What is the Difference Between “Prejudice” and “Unfair Prejudice”?

By: Jassmine Girgis

Paper Commented On: “Fairness in The Oppression Remedy: How Does Harm Become Unfair?”, 19th Annual Review of Insolvency Law, 2021 CanLIIDocs 13557

PDF Version: Fairness and The Corporate Oppression Remedy: What is the Difference Between “Prejudice” and “Unfair Prejudice”?

[The National Judicial Institute (NJI) recently held its civil law seminar in Calgary, Alberta, where I participated in a panel on director and officer liability. The following blog captures some of my remarks during that panel, as well as excerpts from a recent paper that formed the basis of those remarks]

People have a strong intuitive sense of fairness – even children sense when an adult has treated them unfairly. Perhaps for this reason, in the context of the corporate oppression remedy, which has fairness as its foundation, spotting oppression in a set of facts can be relatively straightforward. The problem, however, is that while unfairness (and oppression) can be easy to see, why something is unfair or oppressive can be much more difficult to explain. Indeed, oppression remedy jurisprudence often fails on this point – prejudice or harm may be plainly evident on the facts (Kevin P McGuinness, Canadian Business Corporations Law, 3rd ed, vol 3 (Toronto: LexisNexis Canada Inc, 2017) at §21.135), but without guidance the fairness test can seem obscure, and courts sometimes struggle with it. They get the results right, and they give some reasons, but these reasons often do not provide a clear articulation as to what fairness means. Continue reading →

Exemptions to the BIA “Fresh Start” Policy

By: Jassmine Girgis

PDF Version: Exemptions to the BIA “Fresh Start” Policy

Case Commented On: Alberta Securities Commission v Hennig, 2021 ABCA 411 (CanLII)

In this decision, the Alberta Court of Appeal (CA) considered whether a debt fell within the exceptions contained in s 178(1) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA), and therefore survived the discharge of the bankrupt.

The CA allowed the appeal. The majority reasons were written by Justice Ritu Khullar and concurred in by Justice Jack Watson. Justice Dawn Pentelechuk wrote reasons concurring in the result. Continue reading →

Interpreting the Generalized Duty of Good Faith in Insolvency Proceedings

By: Jassmine Girgis

PDF Version: Interpreting the Generalized Duty of Good Faith in Insolvency Proceedings

Case Commented On: CWB Maxium Financial Inc v 2026998 Alberta Ltd, 2021 ABQB 137 (CanLII)

In CWB Maxium Financial Inc v 2026998 Alberta Ltd, 2021 ABQB 137 (CanLII), the court considered the duty of good faith in the Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 4.2 [BIA], and the Personal Property Security Act, RSA 2000, c P-7, s 66(1) [PPSA], in relation to the plaintiff lenders seeking a final order of receivership against the defendant debtors. This post will focus on the duty in the context of insolvency. It will also comment on and contrast the equitable duty of fairness under the corporate oppression remedy. Continue reading →

A Generalized Duty of Good Faith Applied to Disclaimer Under the CCAA

By: Jassmine Girgis

PDF Version: A Generalized Duty of Good Faith Applied to Disclaimer Under the CCAA

Case Commented On: Laurentian University v Sudbury University, 2021 ONSC 3392 (CanLII)

In this case, the court considered the new generalized duty of good faith in relation to setting aside a disclaimer under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (CCAA). When Laurentian University (LU), sought to disclaim agreements with the University of Sudbury (Sudbury) as part of its restructuring, Sudbury brought this motion to set the disclaimer aside, arguing that LU was using the CCAA restructuring process for a collateral or illegitimate purpose, namely to destroy a competitor (at paras 22—24). Sudbury argued that LU’s attempt to disclaim these agreements was a violation of its duty to act in good faith as per s 18.6. Concurrent to this motion, Thornloe University (Thornloe) also brought a motion against LU, dealing with the same issue – to set aside a disclaimer – using similar good faith arguments (Laurentian University of Sudbury, 2021 ONSC 3272 (CanLII) [Laurentian University]). Each motion was dismissed. Continue reading →

Applying the Rule in Foss v Harbottle to Limited Partnerships

By: Jassmine Girgis

PDF Version: Applying the Rule in Foss v Harbottle to Limited Partnerships

Case Commented On: Asher Place Senior Residency Limited Partnership v Balcom, 2021 BCCA 162 (CanLII)

In Asher Place Senior Residency Limited Partnership v Balcom, 2021 BCCA 162 (CanLII), the issue was whether a common law derivative action may be brought on behalf and in the name of a limited partnership against the partnership’s general partner based on alleged wrongs committed by the general partner in its conduct of the business of the limited partnership (at para 1). The Court of Appeal found that procedurally and substantively, it is possible. Continue reading →