Westminer Canada Ltd. v. Amirault

Westminer Canada Ltd. v. Amirault

The Court upheld the trial judge's factual findings that the Seabright directors acted honestly and in good faith and did not commit fraud; Westminer and related companies negligently failed to notify insurers and deliberately prosecuted the Ontario action with predominant purpose to injure the directors (civil...

Source-derived case information.

Citation
1994 NSCA 13
Parties
Appellant/respondent by Cross Appeal: Westminer Canada Limited; Appellant/respondent by Cross Appeal: Westminer Canada Holdings Limited; Appellant/respondent by Cross Appeal: Western Mining Corporation Holdings Limited; Appellant/respondent by Cross Appeal: James H. Lalor; Appellant/respondent by Cross Appeal: Peter Maloney; Appellant/respondent by Cross Appeal: Donald Snell; Appellant/respondent by Cross Appeal: William B. Braithwaite; Appellant/respondent by Cross Appeal: Robert Couzin; Respondent/appellant by Cross Appeal: John A. Amirault; Respondent/appellant by Cross Appeal: H. Robert Hemming; Respondent/appellant by Cross Appeal: Colin J. MacDonald; Respondent/appellant by Cross Appeal: William S. McCartney; Respondent/appellant by Cross Appeal: Fred Hansen; Respondent/appellant by Cross Appeal: Terence D. Coughlan; Respondent/appellant by Cross Appeal: John A. Garnett
Court
Nova Scotia Court of Appeal
Jurisdiction
Canada
Judgment Date
18 January 1994
Procedural Posture
Civil Appeal From Multi‑party Trial (directors Liability, Indemnity, Insurance, Torts) / Judgment on Appeal (court of Appeal Decision Affirming Trial Judge With Modifications on Costs and Interest)
Outcome
Appeal dismissed except for certain modifications ordered by Court of Appeal regarding inclusion of Nova Scotia costs in indemnity and pre‑judgment interest timing; cross-appeals largely dismissed; parties awarded damages, indemnity and costs as modified.
Legal Topics
Directors' Duties and Indemnification, Directors' and Officers' Liability Insurance, Civil Conspiracy, Negligent and Wilful Misrepresentation, Inducing Breach of Contract, Abuse of Process, Costs (solicitor and Client), Pre‑judgment Interest
Source Language
english
Corporate Law Tort Law Insurance Law Securities Law Civil Procedure Remedies Directors' Duties and Indemnification Directors' and Officers' Liability Insurance +6 more

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Parties

Westminer Canada Limited

Appellant/respondent by Cross Appeal

Westminer Canada Holdings Limited

Appellant/respondent by Cross Appeal

Western Mining Corporation Holdings Limited

Appellant/respondent by Cross Appeal

James H. Lalor

Appellant/respondent by Cross Appeal

Peter Maloney

Appellant/respondent by Cross Appeal

Donald Snell

Appellant/respondent by Cross Appeal

William B. Braithwaite

Appellant/respondent by Cross Appeal

Robert Couzin

Appellant/respondent by Cross Appeal

John A. Amirault

Respondent/appellant by Cross Appeal

H. Robert Hemming

Respondent/appellant by Cross Appeal

Colin J. MacDonald

Respondent/appellant by Cross Appeal

William S. McCartney

Respondent/appellant by Cross Appeal

Fred Hansen

Respondent/appellant by Cross Appeal

Terence D. Coughlan

Respondent/appellant by Cross Appeal

John A. Garnett

Respondent/appellant by Cross Appeal

Procedural Posture

Civil Appeal From Multi‑party Trial (directors Liability, Indemnity, Insurance, Torts) / Judgment on Appeal (court of Appeal Decision Affirming Trial Judge With Modifications on Costs and Interest)

Legal Issues

  1. 1 Whether Seabright directors committed fraud or wilful misrepresentation
  2. 2 Whether D&O insurance coverage was lost and whether defendants had duty to give notice
  3. 3 Whether defendants breached indemnity by-law and entitlement to indemnity

Ratio Decidendi

The Court upheld the trial judge's factual findings that the Seabright directors acted honestly and in good faith and did not commit fraud; Westminer and related companies negligently failed to notify insurers and deliberately prosecuted the Ontario action with predominant purpose to injure the directors (civil conspiracy), therefore respondents are entitled to indemnity for defence costs (including Nova Scotia costs), damages as assessed, solicitor‑client costs in rare and exceptional circumstances, and pre‑judgment interest on indemnity and certain awards; appellate review will not overturn trial credibility findings absent palpable error.

Court Disposition

Appeal dismissed except for certain modifications ordered by Court of Appeal regarding inclusion of Nova Scotia costs in indemnity and pre‑judgment interest timing; cross-appeals largely dismissed; parties awarded damages, indemnity and costs as modified.

Orders

  • Appeal, cross‑appeals and notices of contention dismissed except as to specified variations on costs and pre‑judgment interest
  • Award general damages: Coughlan CAD 1,000,000; Garnett CAD 50,000; Amirault CAD 200,000; Hemming CAD 200,000; MacDonald CAD 200,000; McCartney CAD 200,000; Hansen CAD 200,000