Anderson v. Sun Taxi (Ft. McMurray) Inc., 2012 ABQB 700

Court of Queen ’ s Bench of Alberta Citation: Anderson v. Sun Taxi (Ft. McMurray) Inc., 2012 ABQB 700 Date: 20121109 Docket: 1103 16234 Registry: Edmonton Between: Neil Anderson and 853726 Alberta Ltd. Plaintiffs - and - Sun Taxi (Ft. McMurray) Inc., Thickwood Taxi Inc., and Ron MacNeill Defendants Corrected judgment: A corrigendum was issued on December 10, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application for

summary dismissal. The Defendants say that this action was started out of time.

[ 2 ] The individual Plaintiff started an action for wrongful dismissal March 3, 2003. There was a Defence and a Counterclaim. The action went through production and questioning. It was set down for trial by Order but adjourned on the eve of trial, October 17, 2011. [ 3 ] This action was started on October 13, 2011. It was one of the reasons that the trial of the other action was adjourned. The

preamble to the adjournment Order notes the overlap of this case and the wrongful dismissal action. [ 4 ] This action is essentially an oppression action. The action arises out of the conversion and redemption of shares. The Numbered company was the shareholder. The individual Plaintiff is the sole shareholder of the Numbered company. [ 5 ] On June 6, 2008, the Defendants ’ class B common shares were converted to class G preferred shares. On November 5, 2008, the class G preferred shares were redeemed for $82,450.00.

A T-5 was issued April 29, 2010 for the dividend in the 2009 taxation year, though no funds were received by the Plaintiffs because they were said to have been credited against a shareholder ’ s loan. [ 6 ] The Defendants say that the Plaintiffs should have sued in June 2010 or, at the latest, in November 2010. This Statement of Claim was not filed until October 13, 2011. [ 7 ] The Limitations Act , R.S.A. 2000 c. L-12,

section 3, requires the coincidence of three elements in order for the time to run: (

i) that the injury for which the claimant seeks a remedial order has occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, [ 8 ] The Plaintiff argues that until it received financial statements, it could not tell whether the conversion and redemption of shares caused the Plaintiff harm, or warranted bringing a proceeding. Some financial statements had been produced in 2006, but, despite demands, the balance were not produced until 2012, after the action was started.

It could not be said that the financial statements triggered the lawsuit because they weren ’ t received until later. However, this does not mean that the Plaintiffs had sufficient information in 2010 to conclude that they had been injured. [ 9 ] The possibility of amending the earlier wrongful dismissal action to add the oppression claim was raised in the course of argument. The Parties prepared supplemental briefs on this point.

The thrust of the argument was that it would be pointless to strike this action if the first could simply be amended to include these claims. [ 10 ] Because this involves additional claimants and defendants, subsections 6(3) or 6(4) of the Limitations Act would apply. There is no doubt the claims are related. The overlap was acknowledged when the trial was adjourned in the wrongful dismissal action. [ 11 ] Section 6(3) provides:

(3) When the added claim adds or substitutes a claimant, or changes the capacity in which a claimant sues, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding.

(

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits, and (

c) the court must be satisfied that the added claim is necessary or desirable to ensure the effective enforcement of the claims originally asserted or intended to be asserted in the proceeding. [ 12 ] If the limitation clock were to begin to run November 5, 2008 when notice of redemption of the class G shares were given, the October 13, 2011 Statement of Claim (if it were served before November 5, 2011) would satisfy the notice requirement. [ 13 ] I am not convinced that the third requirement has been met.

It may be desirable that the Plaintiffs ’ financial stake in the Defendant be resolved all at once - especially if there might be a procedural set off, but adding the oppression claim to the wrongful dismissal claim seems more a question of tacking two things together than effectively enforcing the original claim. However, I do not need to decide this. [ 14 ] In my view, there is enough here that the action ought not to be summarily dismissed. To put it in the language of this type of application, I cannot say that it is beyond doubt that this action was started too late.

Whether there is an immunity conferred by the Limitations Act will be decided at trial with the benefit of a full factual record. [ 15 ] It is time that these claims were brought to conclusion so the parties can have some closure. Consolidation and a litigation plan may be useful to achieve this. [ 16 ] The Defendants ’ application is dismissed with costs in the cause. Heard on the 01 st day of October, 2012. Dated at the City of Edmonton, Alberta this 9 th day of November, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances: Damian Shepherd

Chatwin LLP for the Plaintiffs Barry King Strathcona Law Group for the Defendants _______________________________________________________ Corrigendum of the Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ Paragraph [12] where it states: (if it were served before November 5, 2008) is hereby amended to read: (if it were served before November 5, 2011).