Ferguson v. Mapleguard Apartments Ltd.

Ferguson v. Mapleguard Apartments Ltd.

The Articles unambiguously allow the ROFR and the Consent Transfer process to operate concurrently; consents under article 25.1(e) need only be obtained before the transfer is registered (i.e. before the proposed transfer is "made"); directors' absolute discretion to decline registration prevents ROFR acceptance alone from creating an enforceable contract against the company; the consents obtained met the two‑thirds threshold and were valid; therefore no contractual breach, tort, unjust enrichment or oppression was established and all claims fail.

Citation
2024 BCSC 123
Parties
Plaintiff/petitioner: Mark Ferguson; Plaintiff/petitioner: Cheryl Kermeen; Defendant/respondent (company): Mapleguard Apartments Ltd.; Defendant/respondent (shareholder): Neal Davidge; Defendant/respondent (shareholder): Isobel Davidge (deceased); Defendant/respondent (executor/vendor): Lawrence Engelsman (Executor of the Estate of Jan Engelsman); Defendant/respondent (shareholder/director): Barbara Dunsmore; Defendant/respondent (shareholder): Robert Christie; Defendant/respondent (shareholder): Belva Christie; Defendant/respondent (shareholder): Patrick Wadden; Defendant/respondent (shareholder): Aiko Wadden; Defendant/respondent (shareholder): Leonard Hindle; Defendant/respondent (shareholder): Juanita Brillion
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
29 January 2024
Procedural Posture
Action and Petition (summary Trial) / Final Judgment / Reasons for Judgment
Outcome
All claims in the Action and the Petition dismissed
Legal Topics
Share Transfer Provisions, Right of First Refusal, Consent Transfer Provision, Directors' Discretion, Oppression Remedy (bca S.227), Unjust Enrichment, Inducement of Breach of Contract, Unlawful Interference With Economic Relations, Interpretation of Articles
Source Language
English
Corporate Law Contract Law Tort Law Equity Share Transfer Provisions Right of First Refusal Consent Transfer Provision Directors' Discretion +5 more

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Parties

Mark Ferguson

Plaintiff/petitioner

Cheryl Kermeen

Plaintiff/petitioner

Mapleguard Apartments Ltd.

Defendant/respondent (company)

Neal Davidge

Defendant/respondent (shareholder)

Isobel Davidge (deceased)

Defendant/respondent (shareholder)

Lawrence Engelsman (Executor of the Estate of Jan Engelsman)

Defendant/respondent (executor/vendor)

Barbara Dunsmore

Defendant/respondent (shareholder/director)

Robert Christie

Defendant/respondent (shareholder)

Belva Christie

Defendant/respondent (shareholder)

Patrick Wadden

Defendant/respondent (shareholder)

Aiko Wadden

Defendant/respondent (shareholder)

Leonard Hindle

Defendant/respondent (shareholder)

Juanita Brillion

Defendant/respondent (shareholder)

Procedural Posture

Action and Petition (summary Trial) / Final Judgment / Reasons for Judgment

Legal Issues

  1. 1 Whether a ROFR exercise creates a binding contract enforceable against transferor
  2. 2 Whether a two‑thirds consent under article 25.1(e) can be obtained after ROFR notice is given
  3. 3 Whether the directors' absolute discretion clause prevents crystallization of a contract

Ratio Decidendi

The Articles unambiguously allow the ROFR and the Consent Transfer process to operate concurrently; consents under article 25.1(e) need only be obtained before the transfer is registered (i.e. before the proposed transfer is "made"); directors' absolute discretion to decline registration prevents ROFR acceptance alone from creating an enforceable contract against the company; the consents obtained met the two‑thirds threshold and were valid; therefore no contractual breach, tort, unjust enrichment or oppression was established and all claims fail.

Court Disposition

All claims in the Action and the Petition dismissed

Orders

  • Action dismissed with costs to Mapleguard Apartments Ltd. and Neal Davidge on the ordinary scale
  • Petition dismissed with costs to Mapleguard Apartments Ltd. and Neal Davidge on the ordinary scale