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The Expanding use of the Oppression Remedy may give legal teeth to Corporate Social Responsibility

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On March 8, 2013

In Corporate / Commercial

 PDF version: The Expanding use of the Oppression Remedy may give legal teeth to Corporate Social Responsibility

Case considered: Wrzesien v Arnett & Burgess Pipeliners Ltd, 2013 ABQB 59.

The oppression remedy is a statutory right available under section 242 of the Alberta Business Corporation Act, RSA 2000, c B-9 [ABCA] and other corporate statutes in Canada. The remedy is a powerful tool for correcting prejudicial, unfair and oppressive conduct. It is available to shareholders, directors and officers who have been oppressed or unreasonably prejudiced through corporate conduct. Under the legislation a creditor may utilize the oppression remedy only if the court exercises its discretion to find that the creditor is a ‘proper person’ to make an application under the oppression remedy (ABCA, s 239).

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Indalex: Priority of Provincial Deemed Trusts in a CCAA Restructuring

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On March 6, 2013

In Bankruptcy and Insolvency, Supreme Court of Canada

PDF version: Indalex: Priority of Provincial Deemed Trusts in a CCAA Restructuring

Case considered: Sun Indalex Finance, LLC et al v United Steelworkers et al, 2013 SCC 6.

Introduction

On February 1, 2013, Supreme Court of Canada (“SCC” or “Court”) released its much awaited decision, Sun Indalex Finance, LLC et al. v United Steelworkers et al. The case involved a company, Indalex, that was pursuing restructuri ng proceedings under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA”). Prior to its restructuring, Indalex had been failing to meet its employer contribution obligations to the company’s pension plan and when the pension plan was wound up, there was a deficiency in the funds.

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Selling Drug Paraphernalia a Pithy Criminal Substance

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On March 4, 2013

In Constitutional, Criminal, Municipal Law

PDF version: Selling Drug Paraphernalia a Pithy Criminal Substance

Case considered: Smith v St Albert (City), 2012 ABQB 780.

In January, 2013, Alberta Court of Queen’s Bench Justice Terry Clackson ruled that a recent St. Albert bylaw that restricted the sale of drug paraphernalia must be struck down, because the bylaw fell outside the jurisdiction of the municipality (i.e., it was ultra vires). The bylaw in this case prohibited the display or sale of more than two products from a list of banned items, including pipes, marijuana grinders or products which display an image of a marijuana leaf. Business establishments that sell these and other forms of drug paraphernalia are sometimes referred to as “bong” or “head” shops, and exist in many municipalities across Canada.

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Whoever heard of such a thing? A Crown oil and gas lease an intangible form of personal property?

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On March 1, 2013

In Bankruptcy and Insolvency, Oil & Gas

PDF version: Whoever heard of such a thing? A Crown oil and gas lease an intangible form of personal property?

Case considered: Kasten Energy Inc v Shamrock Oil and Gas Ltd, 2013 ABQB 63.

In this case Justice Lee granted Kasten’s application to appoint a receiver\manager over all of the assets of Shamrock, including Shamrock’s Crown oil and gas lease. Kasten was a secured creditor of Shamrock claiming under a general security agreement (GSA) over Shamrock’s present and after acquired personal property. In the course of making his decision to appoint a receiver Justice Lee concluded that Shamrock’s lease was an intangible form of personal property. Kasten brought its application for the appointment of a receiver\manager Kasten under section 13(2) of the Judicature Act, RSA 2000, c J-2 rather than under section 65(7) of the Personal Property Security Act, RSA 2000, c P-7 (PPSA).

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Limitation Periods and the Subjective Element

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On February 28, 2013

In Limitations

PDF version: Limitation Periods and the Subjective Element

Case considered: Boyd v Cook, 2013 ABCA 27.

As my University of Calgary law professors repeat time after time, a missed limitation date is one of the few things you cannot fix as a lawyer. So, when I came across this recent Alberta Court of Appeal case, naturally I paid close attention. The underlying claim was an investment in an unsuccessful development project. Mr. Cook induced Mr. Boyd to invest in a mortgage company. The majority of the funds were used to invest in a development project that Mr. Boyd had flatly refused on several occasions to invest in. Mr. Boyd filed a Statement of Claim. Mr. Cook sought summary dismissal on limitation grounds. A Master dismissed the summary dismissal application (2012 ABQB 284), which was upheld by a chambers judge. It looked like the parties were going to trial. However, the Court of Appeal decided to allow the limitations defense.

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