Summary

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Summary

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Judgments and orders — Summary judgment — Commercial law — Corporations — Oppression — Definition of complainant — Administrative law — Appeals — Standard of review — Courts — Enforcement of orders — Whether Mr. McDonald qualifies as a complaint — Whether the facts support oppression — Whether the Court of Appeal breached stare decisis — Whether the Court of Appeal committed palpable and overriding error.

Birch Mountain Resources Limited was a publicly traded company focussed on developing a limestone quarry. However, it had financial trouble from the outset, and eventually lost the quarry in receivership proceedings despite the involvement of Brookfield Asset Management Inc., Brookfield Special Situations Partners Ltd. and Hammerstone Corporation (collectively, the “Brookfield parties”). The Brookfield parties provide capital and financial and operating experience to companies which have both business potential and business challenges, with a view to eventual profit. After the receivership proceedings were brought to a close, the shareholders attempted to start an action in Ontario. That action was stayed as having no real and substantial connection to Ontario (Bond v. Brookfield Asset Management Inc., 2011 ONSC 2529, aff’d 2011 ONCA 730), but was continued in Alberta with Mr. McDonald, a director and shareholder of Birch Mountain, as the potential representative plaintiff in a potential class action. Before an application could be heard to certify a class proceeding, a motion for summary dismissal was brought by the Brookfield parties. The demise of Birch Mountain can be traced to a number of financial transactions and events, including the default on interest payments on convertible debentures issued to certain of the Brookfield parties.

Strekaf J. dismissed the action finding that Mr. McDonald had not presented sufficient evidence to substantiate any of his claims. The Court of Appeal dismissed an application to submit new evidence and Mr. McDonald’s appeal.

Lower Court Rulings