Canada Case Law

Murray v. Young

Court

Supreme Court of British Columbia

The application to add Michael Holmes and Pemberton Holmes Ltd. is dismissed because the plaintiff failed to plead or establish an independent relationship with the proposed defendants and a loss distinct from the company's loss; therefore the Foss v. Harbottle derivative action doctrine bars the individual claims and the threshold under R.6-2(7)(c) was not met; additionally the July 31, 2020 release likely encompasses agents and further undermines the claim.

Source excerpt

• Joinder/joinder of parties
• Derivative action/foss v. harbottle
• Fiduciary duties
• Agency
• Release and settlement
• Limitation period

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Mohajer v. Mohagheghi

Court

Supreme Court of British Columbia

Plaintiff failed to prove on the balance of probabilities that the parties reached consensus ad idem on the essential terms of a joint venture or share ownership entitling him to 50% of the shares; contemporaneous corporate records and transactions establishing share issuance or transfer and payment by the plaintiff are absent, draft agreements were incomplete or unsigned and bank forms were inconsistent and unreliable, therefore the onus was not met and the action is dismissed.

Source excerpt

• Share ownership
• Joint venture
• Meeting of the minds
• Certainty of terms
• Credibility assessment

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Alyousef v. Alyousef

Court

Court of Appeal for Ontario

The Court of Appeal for Ontario declined to deduct notional income taxes from several income items, but ordered proof of 229’s tax remittances before final recalculation.

• Partnership accounting
• Diversion of corporate funds
• Calculation of damages
• Notional tax deduction
• Production of financial records
• Fresh evidence on appeal

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Thomson v. Thomson Estate

Court

British Columbia Court of Appeal

Appeal dismissed: trial judge correctly concluded no enforceable oral contract was formed in November 2009 because the parties did not reach agreement on all essential terms (notably financing for the full 15% interest, the services to be provided on reinstatement, and the mechanism for partner approval) and there was no objective intention to create legal relations; the credibility findings and factual inferences supporting those conclusions attract appellate deference and disclose no reviewable error.

Source excerpt

• Contract formation
• Intention to create legal relations
• Certainty of essential terms
• Authority/agency
• Partner admission under partnership agreement
• Credibility findings and standard of review

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Chan v. Vintila

Court

Supreme Court of British Columbia

Application dismissed because petitioner sought mandatory relief but failed to show a strong prima facie case on the merits; petitioner established only a modest risk of irreparable reputational harm on an uncertain evidentiary basis; and the balance of convenience favoured respondent because granting the injunction would certainly destroy an ongoing profitable business, alter the status quo, and impose significant financial harm while the merits (including enforceability of the written partnership clauses) were not sufficiently in petitioner's favour.

Source excerpt

• Dissolution of partnership
• Interlocutory mandatory injunction
• Irreparable harm
• Balance of convenience
• Interpretation and enforceability of written partnership agreement
• Ownership of digital content and accounts

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Alyousef v. Alyousef

Court

Court of Appeal for Ontario

The Court of Appeal upheld findings of an oral partnership and most damages issues, but requested further submissions on income-tax deductions in the profit calculation.

• Partnership formation
• Oppression remedy (obca s.248)
• Inspector report (obca s.161)
• Breach of fiduciary duty
• Unjust enrichment
• Prejudgment interest (cja s.130)

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Sanovest Holdings Ltd. v. Ecoasis Developments LLP

Court

Supreme Court of British Columbia

The Receivership Order was varied to bring the Bear Mountain Litigation within the receivership because the litigation's outcome is materially intertwined with the receivership distributions and asset quantum, variation of a consent receivership order is permissible without a demonstrated change in material facts, and s.187(5) BIA supports inclusion to preserve the single proceeding model and avoid inconsistent findings.

Source excerpt

• Receivership
• Variation of court order
• Derivative actions
• Oppression remedy
• Case management
• Sale approval

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Deml Investments Limited v. Canada

Court

Federal Court of Appeal

The GAAR applies to deny the portion of DEML's claimed capital loss that is attributable to the paragraph 88(1)(d) bump because using the bump to preserve ACB while also retaining CCOGPE for the same Canadian resource properties frustrates the rationale of the bump provisions; however, the portion of the loss attributable to the partnership income allocation (which increased ACB by $9,084,659) is not abusive and should not be denied because denying it would cause double taxation. Accordingly the capital loss is reduced by $39,402,330 and the matter is remitted to the Minister for reassessment.

Source excerpt

• General anti-avoidance rule (gaar)
• Paragraph 88(1)(d) bump
• Capital loss and adjusted cost base
• Cumulative canadian oil and gas property expense (ccogpe)
• Abuse analysis (object, spirit and purpose)
• Double taxation concern

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Porisky v. Canada

Court

Federal Court of Appeal

The appellants' activities exhibited objective, business-like profit-making conduct and were properly characterized for tax purposes (including as a partnership); the appellants failed to identify any error of law or palpable and overriding error in the Tax Court's findings, and the Court rejects the appellants' contention that subjective lack of intention to profit, under their reading of Stewart, removes tax liability; therefore the appeal is dismissed.

Source excerpt

• Source of income
• Tax avoidance arguments
• Gst collection obligations
• Characterization of partnership
• Subjective intention vs objective business-like conduct
• Standard of review

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Ecoasis Developments LLP v. Sanovest Holdings Ltd.

Court

Supreme Court of British Columbia

La Cour ordonne que quatre actions liées au projet Bear Mountain soient entendues ensemble, concluant que les faits, les relations et les questions se recoupent fortement.

• Joinder of proceedings
• Consolidation vs joinder
• Trial scheduling
• Admissibility of evidence across actions
• Oppression remedy
• Partnership disputes

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