The Casing Push Company Limited v. Army of One Power Tongs Ltd., 2011 ABQB 582

Court of Queen ’ s Bench of Alberta Citation: The Casing Push Company Limited v. Army of One Power Tongs Ltd., 2011 ABQB 582 Date: 20110927 Docket: 1103 13307 Registry: Edmonton Between: The Casing Push Company Limited Applicant - and - Army of One Power Tongs Ltd., Jason Thorsen and Andrew Carlow Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Donald Lee _______________________________________________________ [ 1 ] The Casing Push Company Limited (“Casing”) is an Alberta corporation in the oilfield business.

The initial Directors of Casing were Mr. Curlett, and the Respondents Thorsen and Carlow. Curlett raised $50,000 from investors for the purpose of developing oilfield tools. It is alleged in May 2011 that Thorsen caused cheques to be written to himself from Casings bank account totalling $29,000 for use in his corporation Army of One Power Tongs Ltd. (“Army”). [ 2 ] It is alleged in May 2011 that Thorsen caused one cheque to be written to Ken Loveless from Casing’s bank account in the amount of $5,000. Loveless was a former employee or contractor of Army.

[ 3 ] It is alleged that Carlow was the Director of Casing and all material times, and as such have knowledge of the events given rise to the application. [ 4 ] It is alleged that no monies have been returned to Casing from Thorsen, Loveless or Army and that they are jointly and separately indebted to Casing for $34,000. [ 5 ] When this matter first was argued in morning Chambers, the relevant provisions of the Business Corporations Act and the Rules of Court were not specified in the order submitted herein. [ 6 ] I conclude that s. 243 of the Business Corporations Act provides broad remedies, and allows the Court to “make any interim or final order it thinks fit including, without liberty to generality of the foregoing any of the following 243

(1) An application made or an action brought or intervened in under this Part shall not be stayed or dismissed by reason only that it is shown that an alleged breach of a right or duty owed to the corporation or its subsidiary has been or may be approved by the shareholders of the corporation or the subsidiary, but evidence of approval by the shareholders may be taken into account by the Court in making an order under

section 215, 241 or 242.

(2) An application made or an action brought or intervened in under this Part shall not be stayed, discontinued, settled or dismissed for want of prosecution without the approval of the Court given on any terms the Court thinks fit and, if the Court determines that the interests of any complainant may be substantially affected by the stay, discontinuance, settlement or dismissal, the Court may order any party to the application or action to give notice to the complainant.

(3) A complainant is not required to give security for costs in any application made or action brought or intervened in under this Part.

(4) In an application made or an action brought or intervened in under this Part, the Court may at any time order the corporation or its subsidiary to pay to the complainant interim costs, including legal fees and disbursements, but the complainant may be held accountable for the interim costs on final disposition of the application or action. [ 7 ] As for costs, when this matter was initially argued in morning Chambers, the amount of costs sought were $1,000. However this matter was commenced by Originating Application and the fee for commencement documents in uncontested matters is 50% of s. 1(1) of

Schedule C, a fee of $1,000, therefore the costs for the commencement documents in this case should only be $500. Since the application was uncontested, s. 6(1) of

Schedule C of the Rules of Court provide for an additional $300. [ 8 ] I will also allow disbursements of $200 for filing the Originating Application, $438.80 for service on the two individuals and the Corporation in Whitecourt, Alberta, for a total $1,438.80. [ 9 ] Given the non appearance of the Respondents in this matter, Casing will only be at liberty to enforce the debts owed to it by Thoreson, Carlow and Army pursuant to this order after the order has been served on the Respondents, or October 1, 2011, whichever is earliest. Heard on the 23 rd day of September, 2011. Dated at the City of Edmonton, Alberta this 27 th day of September, 2011.

Donald Lee J.C.Q.B.A. Appearances: Allison L. Murray Fraser Milner Casgrain LLP for the Applicant No one appeared for the Respondent