Noble v. North Halton Golf and Country Club is noteworthy because it’s the first decision to apply the Court of Appeal analysis in Maurice v. Alles to a claim for continuing oppression. It will also interest people curious about the internal politics of golf clubs.
This is Justice Belobaba’s limitations analysis:
[18] The defendant says the action is time-barred because the plaintiff has been voicing his concerns and complaints for years at shareholder meetings and otherwise about his inability to sell his Class G share and was fully aware of ongoing developments. There was nothing “new”, says the defendant, in the May and August, 2015 share sale and pricing resolutions. The defendant says that any and all claims of oppression were discovered or discoverable well before June, 2013 – that is, more than two years prior to the commencement of this proceeding. The action is therefore time-barred and should be summarily dismissed.
[19] I do not agree. As the Court of Appeal recently noted in Maurice v. Alles,[5] where there is an allegation of continuous oppression stretching over many years, any threatened or actual conduct that is oppressive or unfairly disregards the interests of any complainant can constitute a discrete claim of oppression. And if the action is commenced within two years of this “discrete claim of oppression” that is sufficient. Here is how the Court of Appeal put it:
A party that engages in a series of oppressive acts can always make the argument that it is all part of the same corporate malfeasance and that the limitation period begins to run with the discovery of the first oppressive act. In analyzing that conduct, courts must have regard to the remedial nature of the oppression remedy and the fact that any threatened or actual conduct that is oppressive, or unfairly prejudicial to, or unfairly disregards the interests of any complainant can constitute a discrete claim of oppression. The oppression remedy section of the OBCA is drafted in the broadest possible terms to respond to the broadest range of corporate malfeasance.[6]
[20] In my view, even though the plaintiff has been writing letters of complaint and voicing his concerns for many years, the share sale and pricing resolutions in May, 2015 (and again in August, 2015) raised a new and discrete claim of oppression. Indeed, as the plaintiff, noted in his affidavit, the May share pricing resolutions were “the trigger” for his statement of claim.
[21] The actions in May, 2015 and again in August, 2015 were the first time that the defendant decided to sell treasury shares at prices that were well below the $22,000 price that was paid for the McNally family shares in 2006 or the $32,000 book value price (let alone the price based on current land values.) These decisions reduced the capital of the non-golfing shareholders for the sole purpose of supporting the golfing shareholders and members. By reducing and redistributing shareholder equity, the defendant breached its duty, says the plaintiff, to be even-handed in its treatment of all shareholders and not to oppress the minority who did not play golf.
[22] The discrete acts of alleged oppression occurred in May and August of 2015. The action was commenced on June 15, 2015. The action is obviously not time-barred. The defendant’s motion is dismissed.
