MacKinnon v. Ontario Municipal Employees Retirement Board

MacKinnon v. Ontario Municipal Employees Retirement Board

On a generous reading of the pleaded facts (deemed proven for Rule 21 purposes) the knowing receipt, knowing assistance and unjust enrichment claims against the respondents, and fiduciary/agent claims against BREMI and against Latimer (and limited s.22 claims against BCC related to performance), have sufficient prospect of success to survive a Rule 21 strike; however common‑law fiduciary claims against BCC (negotiation) and against former employees Collier and Nobrega were plain and obvious failures and were struck; representative plaintiff costs are payable from the Fund where action seeks due administration and benefits all beneficiaries.

Citation
2007 ONCA 874
Parties
Plaintiff/appellant: Wyman MacKinnon; Defendant/respondent: Ontario Municipal Employees Retirement Board; Defendant/respondent/appellant: Borealis Capital Corporation; Defendant/respondent: Borealis Real Estate Management Inc.; Defendant/respondent: Ian Collier; Defendant/respondent: R. Michael Latimer; Defendant/respondent: Michael Nobrega
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
13 December 2007
Procedural Posture
Civil Appeal From Motions Judge Orders / Court of Appeal Disposition of Rule 10 and Rule 21 Motions; Appeal of Costs Order
Outcome
Allow MacKinnon appeal in part; vary paragraphs 1–5 of motions judge Order to conform to reasons; dismiss BCC appeal; grant leave to appeal Costs Order and allow costs appeal; dismiss BCC cross‑appeal on costs; strike specified fiduciary claims and allow specified equitable claims to proceed.
Legal Topics
Representative Proceedings, Rule 21 Motion to Strike, Rule 10 Representative Plaintiff, Knowing Receipt, Knowing Assistance, Unjust Enrichment, Agency Under Pension Statute, Related Party Transactions, Costs From Pension Fund
Source Language
English
Pension Law Trusts and Fiduciary Duty Civil Procedure Equitable Remedies Corporate Law Representative Proceedings Rule 21 Motion to Strike Rule 10 Representative Plaintiff +6 more

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Parties

Wyman MacKinnon

Plaintiff/appellant

Ontario Municipal Employees Retirement Board

Defendant/respondent

Borealis Capital Corporation

Defendant/respondent/appellant

Borealis Real Estate Management Inc.

Defendant/respondent

Ian Collier

Defendant/respondent

R. Michael Latimer

Defendant/respondent

Michael Nobrega

Defendant/respondent

Procedural Posture

Civil Appeal From Motions Judge Orders / Court of Appeal Disposition of Rule 10 and Rule 21 Motions; Appeal of Costs Order

Legal Issues

  1. 1 Whether the amended statement of claim discloses a reasonable cause of action against defendants
  2. 2 Whether corporate and individual defendants owed fiduciary duties at common law or under s.22 PBA or FIR related party rules
  3. 3 Whether claims for knowing receipt and knowing assistance are pleaded sufficiently

Ratio Decidendi

On a generous reading of the pleaded facts (deemed proven for Rule 21 purposes) the knowing receipt, knowing assistance and unjust enrichment claims against the respondents, and fiduciary/agent claims against BREMI and against Latimer (and limited s.22 claims against BCC related to performance), have sufficient prospect of success to survive a Rule 21 strike; however common‑law fiduciary claims against BCC (negotiation) and against former employees Collier and Nobrega were plain and obvious failures and were struck; representative plaintiff costs are payable from the Fund where action seeks due administration and benefits all beneficiaries.

Court Disposition

Allow MacKinnon appeal in part; vary paragraphs 1–5 of motions judge Order to conform to reasons; dismiss BCC appeal; grant leave to appeal Costs Order and allow costs appeal; dismiss BCC cross‑appeal on costs; strike specified fiduciary claims and allow specified equitable claims to proceed.

Orders

  • Vary Order dated August 16, 2006, paragraphs 1–5 to conform to appellate reasons
  • Strike common‑law fiduciary claims against BCC (except limited s.22 claim relating to performance) and against Collier and Nobrega