From Justice Newbould comes Solar Harvest Company v. Dominion Citrus Limited, a decision on the commencement of the limitation period for the oppression remedy. This is not an especially developed area of limitations jurisprudence, and it’s of interest that Justice Newbould determined, for the purposes of section 5 of the Limitations Act, 2002, that damage in an oppression claim occurs when there is loss attributable to the alleged oppression.
The applicant Solar and Fortune owned preference shares of the respondent Dominion. Solar and Fortune sought oppression relief as a result of, among other things, a Plan of Arrangement involving Dominion that converted its business into an income trust in 2005.
The Arrangement affected Solar and Fortune as preference shareholders:
[10] […] Prior to [the Arrangement], Dominion had had the option on the retraction of the preference shares to pay for them in common shares of Dominion or in cash, and if Dominion chose to pay for them in cash, there was no debt in priority to the preference shares and thus no concern that cash could not be paid. After the Arrangement, because there was no ability of Dominion to pay with its common shares on a retraction of the preference shares, whether Dominion had the cash to pay for the preference shares depended on whether Dominion had available cash after paying interest on the participating notes. For this reason, the applicants say they were oppressed.
Dominion objected to the application on the basis of the expiry of the limitation period. Its position was that the Solar and Fortune knew of the material facts of the alleged oppression more than two years before bringing the application. Solar and Fortune argued that they did not suffer any damage until they received a letter from Dominion refusing to redeem the preference shares and the limitation period ran from that date.
Justice Newbould noted that in the context of an oppression claim, the word “damage” in section 5 of the Limitations Act is the “condition of being worse off than if the oppressive activity had not occurred and at least some of the loss is attributable to that oppressive activity.” The damage was not Dominion’s refusal to redeem the preference shares, but the effect of the Arrangement on the ability of Solar and Fortune to have their preference shares redeemed, and a 2009 change to the participating notes to make them secured.
Should it be of interest, this is the discovery analysis:
[29] Prior to the meetings of the shareholders and of the preference shareholders held on December 22, 2005, the preference shareholders were sent an information circular for their special meeting that included the entire information circular for the proposed Arrangement sent to the shareholders. Mr. Fortune, a chartered accountant, received this material. He was made aware that the participating notes would be issued by Dominion to Dominion Fund and was aware from the audited financial statements that the amount of the notes issued on January 1, 2006 was $19,258,000. The interest owing on that liability each year spelled doom for Dominion ever having enough cash to redeem the preference shares without being offside the OBCA solvency requirements.
[30] As well, whereas before the Arrangement, Dominion had experienced earnings for the past four years of between $2.6 million and $1.3 million, after the Arrangement, Dominion had earnings losses each year, beginning with a loss of $2.4 million in 2006, $399,000 in 2007, $3.978 million in 2008, $2.364 million in 2009, $1.278 million in 2010, $4.152 million in 2011, $249,000 in 2012 and $357,000 in 2013. These were reported in the audited financial statements and known to Mr. Fortune. Mr. Fortune had to know that with these liabilities and losses occurring each year that the ability of Dominion to redeem the preference shares was remote.
[31] Also known to Mr. Fortune from the audited financial statements was the amount of interest paid by Dominion to Dominion Fund each year. $2.5 to $2.7 million was paid out each year to 2009 when the rate on the notes was 13% and $881,000 was paid out 1n 2011 after the rate was reduced to 5%. In December, 2011 the participating notes were again changed to provide for another interest free holiday to the end of 2013.
[32] In 2008 Dominion stopped paying interest on the preference shares. Mr. Fortune acknowledged on cross-examination that at that time he realized that there was something going on “that was not quite right”. Taken he was a chartered accountant, that is not a surprising statement.
[33] In June, 2012, more than two years before this application was commenced, Mr. Fortune said that he opened negotiations with Dominion regarding the upcoming retraction date for the preference shares. He said he was told at that time that there was an issue with the participating notes taking priority over the preference shares. It would be surprising indeed if Mr. Fortune did not realize that before in light of all of the information that he had had since the Arrangement in 2005 and the change to the terms of the participating notes in 2009 that he knew about. If he didn’t know of this issue before, he ought to have, taking all of the information he had been given, but in any event, he knew of it by June 2012. He acknowledged that by that time he felt that his interests and rights or privileges as a preference shareholder had been disregarded, and that they had been disregarded by the restructuring of the notes in 2009.
[34] Taking all of the evidence into account, I cannot help but find that Mr. Fortune well knew the material facts on which this claim is based before October 6, 2012, two years before he commenced this application. In the circumstances the application must be dismissed as being statute barred.
