Amack v Wishewan, 2014 ABQB 613

Court of Queen ’ s Bench of Alberta Citation: Amack v Wishewan, 2014 ABQB 613 Date: 20141024 Docket: 1303 18226 Registry: Edmonton Between: Jonathan James Amack Plaintiff - and - Dale Wishewan, Li Yu and Frozen Canuck Import Corp. Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.J. Gill _______________________________________________________ Introduction [ 1 ] The Plaintiff (“Mr.

Amack”) commenced this action on December 31, 2013 seeking to be reinstated as a director and shareholder of the Defendant, Frozen Canuck Import Corp. (“Frozen Canuck”). He alleges wrongful retention of shares, conversion, detinue, unjust enrichment and oppressive conduct. He seeks damages arising for the alleged wrongs. [ 2 ] The Defendants deny any wrongdoing and in this application seek

summary dismissal of the action on the basis that the

Defendants are entitled to immunity from liability pursuant to s 3(1)(

a) of the Limitations Act Alberta, RSA 2000, c L-12 , as amended (“ Limitations Act” ). Background [ 3 ] This is one of several actions commenced by Mr. Amack against Mr. Dale Wishewan (“Mr. Wishewan”) and several corporate entities . [3] Mr. Amack and Mr. Wishewan are the founders, sole directors and sole shareholders of Alberta corporations, AW Holdings Corp. (“AW”) and 952110 Alberta Ltd. (“952”). AW was incorporated in August of 1999 by Mr. Amack (a resident of West Linn, Oregon, U.S.A.) and Mr. Wishewan (a resident of Sherwood Park, Alberta). Prior to entering into business together, Mr. Amack and Mr.

Wishewan were college friends. [ 4 ] AW is the franchisor of “Booster Juice” which retails fresh fruit smoothies and juice bars in Canada and internationally. 952 is a single purpose corporation which exists solely to receive rebates paid by AW franchisees in accordance with the franchise agreements. [ 5 ] Mr. Amack and Mr. Wishewan jointly developed and managed the business of AW from 1999 until 2004. From and after 2005, Mr. Amack assumed primary responsibility for the U.S. operations of the “Booster Juice” franchise (the franchisor of which was a Nevada corporation owned by Mr. Amack and Mr. Wishewan), and Mr.

Wishewan assumed virtually exclusive responsibility for the Canadian-based operations of AW. Mr. Wishewan has served as an employee, president and CEO of AW, and runs the “Booster Juice” franchise in Canada and internationally (apart from the U.S.). From and after 2006, Mr. Amack travelled from Oregon to Edmonton approximately once a year. [ 6 ] Frozen Canuck is an Alberta corporation which was incorporated in February 23, 2005 with Mr. Amack and Mr. Wishewan each holding 50% of its shares and serving as its sole directors.

Frozen Canuck is in the business of importing individually quick frozen fruit from China and South America and selling it to a distributor for re-sale to AW franchisees. [ 7 ] In the fall of 2009, Mr. Amack was contacted by Summer Bradko, an Edmonton lawyer who then worked as in-house counsel to AW. At an October, 2009 meeting with Mr. Amack in Edmonton, Ms. Bradko provided Mr. Amack with certain information regarding the business activities of Frozen Canuck and certain conduct of Mr.

Wishewan relating to the business and financial affairs of AW which caused her concern. [ 8 ] As a result of receiving this information from Ms. Bradko, Mr. Amack swore an Affidavit on December 28, 2009 (the “December 28, 2009 Amack Affidavit”). The December 28, 2009 Amack Affidavit made a number of allegations (the “Subject Allegations”) including: (

a) that Mr. Amack appeared potentially to have been removed as a shareholder and/or director of Frozen Canuck and that Frozen Canuck appeared to have continued to carry on business subsequent to 2005 (contrary to information that had previously been provided to Mr. Amack); (

b) that Mr. Wishewan had caused employees and resources of AW to be actively deployed in the development of a new frozen yogurt enterprise by a corporation owned or controlled by Mr. Wishewan and known as Kiwi Kiss Frozen Yogurt Ltd. (“Kiwi Kiss”) in which Mr. Amack had no ownership interest; and (

c) that rebates which ought to have been paid to 952 by AW franchisees had been improperly diverted to Frozen Canuck (which corporation Mr. Amack had previously been informed had been eliminated). [ 9 ] Mr. Amack filed the December 28, 2009 Amack Affidavit in Action No. 1003 00161 and on January 6, 2010, Mr. Amack commenced the

Part 18 Proceeding with an application pursuant to

Part 18 of the Alberta Business Corporations Act (the “Part 18 Proceedings”) for an order appointing an inspector to investigate and prepare a report for the Court in relation to certain aspects of the business and affairs of AW and 952. [ 10 ] Mr. Justice R.P.

Belzil granted an Order (the "Inspection Order") on January 6, 2010 appointing KPMG Forensic Inc. (the "Inspector") as Inspector to conduct an investigation and prepare a report to the Court into certain aspects of the business and financial affairs of AW and 952. [ 11 ] The Inspector delivered its First Interim Inspector’s Report on January 25, 2010 (the "First Interim Report"). A number of case management conferences took place in the

Part 18 proceedings, including one on January 27, 2010 where information was provided to the Court concerning the financial position of Frozen Canuck. [ 12 ] The work of the Inspector was delayed as a result of a number of applications relating to the “Inspection Order”. The Inspector resumed its work under the Inspection Order in March of 2012. Between March 2012 until March 2013, the Inspector issued six additional Interim Reports and a Final Report, dated March 22, 2013 (the “Inspector’s Final Report”). [ 13 ] On August 28, 2013, Mr. Justice Belzil ordered that no remedial relief would be granted within the

Part 18 Proceedings and that all applications for remedies arising out of the Inspector’s Final Report ought to be brought before another Judge under

Part 19 of the Business Corporations Act , RSA 2000, C. B-10 (the “ABCA”). [ 14 ] Mr. Amack filed an application (the “Derivative Action Leave Application”) on August 19, 2013 for leave under s 240 of the ABCA:

(

a) to commence a derivative action in the name of AW Holdings Corp. (“AW”) against the Respondents, Dale Wishewan (“Mr. Wishewan”), Kiwi Kiss Frozen Yogurt Ltd. (“Kiwi Kiss”) and Booster Juice Inc. (“BJI”) (the proposed “AW Derivative Action”); (

b) to commence a derivative action in the name of 952110 Alberta Ltd. (“952”) against Dale Wishewan (the “Proposed 952 Derivative Action”). [ 15 ] In the Proposed Derivative Action (Action No. 1303 11857) Mr. Amack alleges improper conflicts of interest, self-dealing and breach of fiduciary, statutory and other duties by Mr. Wishewan in his administration of the business and financial affairs of AW and 952. [ 16 ] Mr. Amack commenced this action on December 31, 2013. Submissions Defendants [ 17 ] The Defendants submit that this action is statue barred as the evidentiary record from the

Part 18 Proceedings and the questioning show that Mr. Amack knew everything necessary to commence this action prior to the limitation period expiring. They further submit that the limitation period had expired by the time Mr. Amack commenced this action in December 2013 and consequently the Defendants are immune from liability pursuant to s 3(1)(

a) of the Limitations Act . [ 18 ] It is submitted that there is sufficient undisputed evidence for this Court to be satisfied that there are no genuine issues for trial relating to the

interpretation and application of s 3(1)(

a) of the Limitations Act and

summary judgment should be granted. Plaintiffs [ 19 ] The Plaintiffs submit that the Defendants’

summary judgment application should be denied for a number of reasons. [ 20 ] Firstly, in raising the limitation issue the Defendants are attempting to re-litigate an issue that has already been decided. This is barred by the doctrines of Collateral Attack and Issue Estoppel. [ 21 ] Secondly, the doctrine of Election applies as the Defendants are attempting to rely on documents to which they previously claimed solicitor/client privilege. [ 22 ] Thirdly, there are four different types of injuries that are being claimed by Mr. Amack. Each of these injuries has a separate and distinct limitation attached to it.

On the evidentiary record available the Court cannot make the necessary findings of fact in relation to each of these separate and distinct limitations. [ 23 ] Fourthly, in light of Mr. Amack’s efforts to get information concerning Frozen Canuck, it cannot be said he knew, or would have known, of the facts as required under s 3(1)(

a) of the Limitations Act , nor did he know of the financial situation of Frozen Canuck until he received the Inspector’s Report. Issue: [ 24 ] Should

summary judgment be granted? The Law Legislation [ 25 ] The applicable legislature and Rules of Court are as follows: Alberta Rules of Court, Alta Reg 124/2010 Division 2

Summary Judgment Application for judgment 7.2 On application, the Court may at any time in an action give judgment or an order to which an applicant is entitled when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence is contained. Application and decision 7.3

(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following

grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. Limitations Act , RSA 2000, c L-12 Limitation periods 1 (e) “injury” means (

i) personal injury, (ii) property damage, (iii) economic loss, (iv) non-performance of an obligation, or (

v) in the absence of any of the above, the breach of a duty; . . . 3(1) Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had 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, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. Case Law

Summary Judgment [ 26 ] In Windsor v. Canadian Pacific Railway Ltd. , 2014 ABCA 108 , the Alberta Court of Appeal summarized the principles relating to

summary judgment. Beginning at paragraph 11: 11. Under the common law system, the default method for resolving disputes is the viva voce trial. Traditionally, interlocutory procedures that denied any party its "day in court" were strictly interpreted. When

summary judgment procedures were first introduced, they were only considered appropriate when it was "plain and obvious", or "clear" or "beyond doubt" that there was no issue that should or could be put to trial. Likewise, the procedure for striking proceedings that did not disclose a cause of action was narrowly applied.

12. Modern civil procedure has come to recognize that a full trial is not always the sensible and proportionate way to resolve disputes. In Canada (Attorney General) v. Lameman , 2008 SCC 14 at para. 10 , [2008] 1 SCR 372 the Supreme Court reacted to the traditional restrictive view by stating: "The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial." In R. v. Imperial Tobacco Canada Ltd . , 2011 SCC 42 at para. 19 , [2011] 3 SCR 45 the Supreme Court made similar comments about striking pleadings: "The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation.

It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial." The test is whether there is "a reasonable prospect that the claim will succeed", not whether it is "plain and obvious" that no claim is disclosed (paras. 17, 21). 13. This modern trend has now been confirmed in Hryniak v. Mauldin ( 2014 SCC 7 ): 1. Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted.

Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted. 2. Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system.

This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. 3.

Summary judgment motions provide one such opportunity. ... 4. In interpreting these [new

summary Judgment] provisions, the Ontario Court of Appeal placed too high a premium on the "full appreciation" of evidence that can be gained at a conventional trial, given that such a trial is not a realistic alternative for most litigants. In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. 5. To that end, I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.

Summary judgment is now an appropriate procedure where there is no genuine issue requiring a trial: 49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. The modern test for

summary judgment is therefore to examine the record to see if a disposition that is fair and just to both parties can be made on the existing record. 14. While Hryniak v. Mauldin applied Ontario R. 20, the principles stated in it are consistent with modern Alberta

summary judgment practice as set out in Alberta R. 7.3: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. Ontario R. 20 and Alberta R. 7.3 are both procedures for resolving disputes without a trial (as compared with Alberta's

summary trial procedure which is a form of trial). As in Ontario, viva voce evidence may exceptionally be allowed in chambers applications: R. 6.11(1) (g). New R. 7.3 calls for a more holistic analysis of whether the claim has "merit", and is not confined to the test of "a genuine issue for trial" found in the previous rules. Since one of the objectives of class proceedings is to provide affordable access to justice, these principles relating to

summary judgment are applicable to the class procedure as well. 15. The theory that disputes eventually "went to trial" was always something of a legal fiction. Even when the court implied that a trial was called for, and declined to grant

summary judgment, or declined to strike pleadings, it was well known that trials were a rarity. Hryniak v. Mauldin refers several times to the need for a change in culture. In other words, the myth of trial should no longer govern civil procedure. It should be recognized that interlocutory proceedings are primarily to "prepare an action for resolution", and only rarely do they actually involve "preparing an action for trial". Interlocutory decisions that can resolve a dispute in whole or in part should be made when the record permits a fair and just adjudication. Hryniak v. Mauldin rejected the ruling by the Ontario Court of Appeal to the effect that the old test for

summary judgment should continue to apply even in the face of the newly amended Ontario rule (Emphasis

added). The Limitations Act [27] In Gayton v. Lacasse, 2010 ABCA 123, the Court of Appeal outlined the approach to be taken in applying section 3(1)(

a) ofthe Limitations Act. Starting at paragraph 15 : [15] The Supreme Court of Canada reviewed the common law rule of discovery in Central Trust Co. v. Rafuse, (SCC), [1986] 2 S.C.R. 147, 31 D.L.R. (4th) 481, and Le Dain J. restated that rule at 224: [A] cause of action arises for purposes of a limitation period when the material facts on which it [the cause of action] is based have beendiscovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence.... [16] In Alberta, that common law rule has been replaced by specific limitations legislation.

Section 3(1) now provides the limitationperiod for actions.... [17] The expanded nature of the inquiry required by these provisions relating to limitation issues has been confirmed in the case law.In De Shazo this court discussed the common law rule and then stated at para. 28: The common law statement of the discoverability principle will inform the application of section 3(1)(a), but courts must also be mindfulof the three criteria listed in that section: J.N. v. G.J.K., 2004 ABCA 394 , 2004 ABCA 394, 248 D.L.R. (4th) 245; Owners:Condominium Plan 9421549 v.

Main Street Developments Ltd., (AB KB), 2004 ABQB 962 . The statutespecifies the type of knowledge that must have been available to the claimant in order to trigger the running of the limitation period. Theclaimant must know or have been reasonably able to discover that: (

i) the injury occurred; (ii) the injury was attributable to the conductof the defendant; and (iii) the injury warrants bringing a proceeding. ... [20] Finally, the test for determining when a claimant has discovered, or ought to have discovered, the enumerated criteria in section3(1)(

a) was discussed by this court in J.N. v. Kozens, 2004 ABCA 394 , 2004 ABC 394, 361 A.R. 177 at paras. 14-16. Thecourt adopted the test described by McLachlin J. (as she then was) in Novak v.

Bond, (SCC), [1999] 1 S.C.R. 808, 172D.L.R. (4th) 385, a case dealing with British Columbia’s limitation legislation, in which she described the test as a “restrictivesubjective/objective approach” which asks the question “in light of his or her own circumstances and interests, at what point could theplaintiff reasonably have brought an action?” Thus, while the test is objective, in that it employs the “ought to have known” standard, thetest is applied having regard to a claimant’s personal circumstances.

In Alberta, given the decision in Kozens, this test applies to all threeof the criteria set out in section 3(1)(a). [21] In

summary, therefore, in Alberta the legislative scheme must be applied to the facts of a given case when determining thecommencement date for a limitation period.

A claimant is not required to bring a claim for a remedial order until two years afterdiscovery of the three criteria enumerated in section 3(1)(a) – namely, when the plaintiff first knew, or in the circumstances ought tohave known, of the injury, that the injury could be attributed to the respondent, and that the injury warranted bringing the action.Moreover, these three criteria must be examined taking into account the circumstances, including the personal circumstances of theclaimant. [28] I find the following comment from the Supreme Court is applicable: “Whatever interest a defendant might have in theuniversal application of a limitation period must be balanced against the concept of fairness to a plaintiff who was unaware that hisinjuries met the conditions precedent to commencing an action” (Peixeiro v.

Haberman, (SCC), [1997] 3 SCR 549(SCC) at para. 34). Analysis [29] I find that this action is not statute barred for two reasons: 1) In light of his circumstances and interests, Mr. Amack could not reasonably have brought an action prior to the Inspector’s FinalReport being issued; 2) The injuries alleged by Mr. Amack may have different limitation periods. 1) In light of his circumstances and interests, Mr. Amack could not reasonably have brought an action prior to the Inspector’s FinalReport being issued

[ 30 ] The test for determining when a claimant “ought to have known” that an action should have been started is set out in paragraph 20 of Gayton v. Lacasse , supra : “in light of his or her own circumstances and interests, at what point could the plaintiff reasonably have brought an action ?”(Emphasis added). [ 31 ] The relevant circumstances and interests in this case are as follows:

a) what Mr. Amack knew of the injuries and when he knew it,

b) the actions he took,

c) the fact of the

Part 18 Proceedings and

d) the benefit of avoiding a multiplicity of proceedings. [ 32 ] I conclude that when one takes into account these circumstances and interests Mr. Amack could not reasonably have brought an action prior to the Inspector’s Final Report being issued in March 2013. Consequently, this action is not statute barred. The circumstances and interests

a) Mr. Amack’s knowledge [ 33 ] Up until October of 2009 Mr. Amack was not aware of the alleged inappropriate conduct of Mr. Wishewan (and Mr. Yu) that forms the basis of this lawsuit. He swears that Frozen Canuck had been the subject of a planned elimination and he had been led to believe Frozen Canuck had ceased operation four years earlier.

b) The actions taken by Mr. Amack [ 34 ] After Mr. Amack obtained information which forms the basis of the subject allegations from Ms. Bradko in October of 2009, he quickly took steps to obtain more information. He attempted to obtain financial statements for Frozen Canuck for 2008 and 2009, but was unable to do so. He obtained a public record corporate search which appears to confirm that he had been removed as a director and shareholder of Frozen Canuck [ 35 ] In December 2009, Mr. Amack commenced the

Part 18 Proceedings. The issue of ownership of Frozen Canuck shares was a significant part of the

Part 18 Proceedings and the information he received during the course of the

Part 18 Proceedings form part of the basis of this claim. [ 36 ] In the December 28, 2009 Amack Affidavit, filed to support the

Part 18 Proceedings application, Mr. Amack described in detail his concerns in regards to Frozen Canuck and his apparent removal as a director and a shareholder of Frozen Canuck. [ 37 ] The Inspection Order granted on January 6, 2010, appointing the Inspector directed an inquiry into the affairs of Frozen Canuck. [ 38 ] The issue of Mr. Amack’s removal as a director and shareholder of Frozen Canuck was identified by the Inspector in his first interim report filed on January, 2010. [ 39 ] During the

Part 18 Proceedings Mr. Amack took other steps relating to Frozen Canuck, including obtaining an order freezing the balance of funds on deposit in a bank account belonging to Frozen Canuck and attempting to obtain information from Mr. Wishewan relating to his removal as a director and shareholder of Frozen Canuck. [ 40 ] The Inspector’s Final Report was filed on March 22, 2013. Mr. Amack claims that this is when he learned for the first time: A. that his removal as shareholder and director of Frozen Canuck had been induced and orchestrated by Mr.

Wishewan and Li Yu; B. that Frozen Canuck continued to carry on business subsequent to 2005 (without the knowledge of Mr. Amack) and had earned gross profits of at least $8,739,948.00 during the period of 2005 to 2011; C. that Mr. Wishewan was the person responsible for some of the key business decisions of Frozen Canuck in their relationship with AW. D. that Mr. Wishewan and Mr. Yu took the position that Mr. Yu was a ten percent shareholder of Frozen Canuck and that Mr. Wishewan was a ninety percent shareholder of Frozen Canuck.

c) The

Part 18 Proceeding [ 41 ] Also of significance is what knowledge or lack of knowledge, if any, can be or should be attributed to Mr. Amack from the fact that a

Part 18 Inspection Order was granted by the Court. [ 42 ] Mr. Amack submits that it is a precondition to the granting of a

Part 18 ABCA Inspection Order that the Court finds that the applicant lacks the facts required to bring an action, or to determine whether or not to do so, and that such facts would be inaccessible without a court-ordered inspection. [ 43 ] The following cases support that position. In Archmetal Industries Corp. v. Jag Flocomponents (North America) Inc. , 2004 ABQB 662 , Mr. Justice Lee referred to the purpose of appointing an Inspector under the

Part 18 Proceedings. Commencing at para 11 he states: 11 What does concern me about this application, is the purpose that it would serve. The primary purpose of an investigation is "to bring to light facts which otherwise might be inaccessible to shareholders and security holders"- Re First Investors , [1988] A.J. No. 44 at page 9 (Q.B.) . 12 The application to appoint an Inspector may be refused if the court finds no additional facts need to be brought out, and that the

issues raised in the case are better disposed of in litigation between the parties, where rights can be determined, rather than in aninvestigation which cannot determine rights - Canada v. Royal Trustco Ltd., [1981] O.J.

No. 252 (H.C.) at paragraphs 7 and 13. 13 The purpose of the order appointing an Inspector is to allow the Applicant access to further information so that the Applicantmay decide if it has enough information to commence legal proceedings, but in the present case legal proceedings have already begunand these legal proceedings will essentially address the very issues that the Inspector would purport to examine. [44] In Western Canadian Oil Management Services Inc. v.

Arlyn Enterprises Ltd., 2008 ABQB 521, Madam Justice Benslerdenied the request for the appointment of an Inspector on the basis that the Applicants had sufficient material on which to decidewhether or not to commence legal proceedings. At para 114, she states as follows: 114 On the facts before me I find that the Applicants have sufficient material on which to decide whether or not to commence legalproceedings. The Court in Royal Trustco Ltd. noted that an investigation may be an improper remedy when the complainant alreadypossesses enough information to determine whether to take legal proceedings.

The Court in Archmetal similarly held that the purpose ofappointing an inspector is to allow an applicant access to further information in order to decide if it has enough information to commenceproceedings. Likewise, in First Investors Corp., the Court held that the primary purpose of an investigation is to bring to light factswhich may be otherwise inaccessible to shareholders or security holders. [45] I find that the granting of a

Part 18 ABCA Inspection Order supports a conclusion that Mr. Amack lacked the facts required tobring an action, or to determine whether or not to do so, and that such facts might have been inaccessible until the court-orderedinspection was completed.

d) Avoiding Multiplicity of Proceedings [46] Some of Mr. Amack’s knowledge about Frozen Canuck only came as a result of the commencement of

section 18Proceedings. It does not make sense that upon obtaining information concerning Frozen Canuck from the

Part 18 Proceedings that Mr.Amack should be required to commence a separate action while the Inspector is still investigating the issues. Such an action would be orcould be an unnecessary duplication of efforts and a potential waste of resources. It was in Mr. Amack’s interest to try to avoid theprospect of multiple actions or proceedings dealing with the same issues. 2) The injuries alleged by Mr. Amack may have different limitation periods [47] In Sun Gro Horticulture Canada Ltd. v.

Alberta Metal Building Sales Inc., 2006 ABCA 243, the Court of Appeal confirmedthat separate limitation periods may now arise when there are different injuries arising from the same event. At paragraph 11: [11] I agree with the Respondent that the Appellant confuses the concept of a cause of action with that of an injury. TheLimitations Act defines a “claim” as a matter giving rise to a civil proceeding in which a claimant seeks a remedial order (s.1 (a)).

A“remedial order” is defined as a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with the dutyor to pay damages for the violation of a right (s.1(i)). The Act defines “injury” to mean personal injury, property damage, economic loss,non-performance of an obligation or, in the absence of any of the foregoing, the breach of a duty (s.1(e)). It is true that a factual nexusgives rise to only one cause of action, and a judgment merges all claims for damages arising from that cause of action.

Section 3(1)(a),however, links immunity with the discoverability of the injury, not the discoverability of a cause of action for any injury. This accordswith a plain and purposive reading of the enactment reflecting as it does the legislative choice for discoverability of the injury. In soconcluding, I am not unmindful that statutory

interpretation cannot be founded on the wording of the legislation alone. As made clearin Rizzo v. Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, the words of

an Act are to be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature.See also Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 , [2002] 2 S.C.R. 559.

In my opinion, the injuries for whicha remedial order is sought in this case, are properly characterized as “property damage” and resulting “economic loss” as defined by theAct. [48] That there are separate limitation periods that might be applicable to the same events means that there are also distinctdiscoverability periods related to the same events. In Sousa v.

Mayo, 2005 ABQB 845, Binder J. referred to the Alberta Law ReformInstitute’s Report No. 55, Limitations, and noted at paragraph 24 that “the discoverability period may begin at different times fordifferent injuries arising out of the same incident, and that ‘it is possible that there will be separate claims based on different injuriesarising from the same event’ (at p. 33)”. [49] In addition to the return of shares, Mr. Amack is seeking damages for several different types of injuries. Mr. Amack testifiedthat he had no knowledge if Frozen Canuck had earned any profit prior to the Inspector’s Report in March 2013.

He seeks fifty percent(50%) of the profits and damages for the wrongful cancellation, extinguishment and/or transfer of the shares. His claim includesconsequential damages such as past and ongoing loss of profits, or loss of rental income. The unjust enrichment claim includes a claimarising from the initial enrichment and a claim for consequential enrichment. The claim under the tort of detinue is a continuing cause ofaction. [50] Some of these claims may involve rolling Limitations periods. Each of these injuries potentially has a separate and distinctlimitation period [51] In Seidel v.

Kerr, 2003 ABCA 267, the Court addressed the issue of limitation periods in the context of an action foroppression. As in this case, the alleged oppressive conduct was ongoing. Starting at paragraph 51 Wittmann J.A. (as he then was ) held: [51] The trial judge focussed on the first act in the course of conduct and treated the entire series of transactions as one act. This isnot logical when the claim involves a series of acts amounting to a course of oppressive conduct.

[54] Even if some of his claims are barred by the expiry of the limitation period, Seidel may have a remedy for acts of oppression orthose damages arising within the limitation period. The limitation period may define the time during which a remedy will be awarded,but does not eliminate the entire claim: Amoco Canada Resources v. Amax Petroleum of Canada, 1992 ABCA 93 , (1992), 2Alta. L.R. (3d) 168 (C.A.).

By dismissing all the claims, the trial judge implicitly barred any remedy including those relating to wrongfulacts which occurred after 1994. [52] In this case I find that the issues surrounding the different limitation period issues cannot be fairly and justly adjudicated onthe evidentiary record. The rationale from Seidel, supra, is applicable: [66] It is premature to determine whether the claims of the Appellants are barred by the Limitation of Actions Act. All issuespertaining to this defence should be determined at trial with one exception. Conclusion [53] The

summary dismissal application is denied. If the parties cannot agree on costs they can speak to them within 60 days. Heard on the 10th day of July, 2014. Dated at the City of Edmonton, Alberta this 24th day of October, 2014. J.J. Gill J.C.Q.B.A. Appearances: J. M. Lee, Q.C. and Dean A. Hutchison (McPherson Leslie and Tyerman) for the Plaintiff Richard J. Cotter, Q.C. and Jonathan Hillson (Dentons Canada LLP) for the Defendants Dale Wishewan, and Frozen Canuck Import Corp. Brian Kickham, Q.C. (Miller Thomson) for the Defendant Li Yu