JBRO Holdings Inc v Dynasty Power Inc, 2021 ABQB 463

Court of Queen’s Bench of Alberta Citation: JBRO Holdings Inc v Dynasty Power Inc, 2021 ABQB 463 Date: 20210614 Docket: 1801 03952 Registry: Calgary Between: JBRO Holdings Inc., Jason Brown, Jason Brown as trustee of The Brown Family Trust, JBRO Investments Inc. and JDFA Holdings Inc.

Plaintiffs (Applicants) - and - Dynasty Power Inc., Dynasty North America Holdings Inc., Dynasty Energy California Inc., Dynasty Property Holdings Inc., 1713845 Alberta Ltd., Allan Cho, 1691399 Alberta Ltd., Nancy Cho, Quacho Holdings Ltd, Gaurav Sharma, Christopher Quilley, Andrew Hoang, Kelly Elias and Todd McRae Defendants (Respondents) _______________________________________________________ Decision of the Honourable Madam Justic e B.E. Romaine _______________________________________________________ I. Introduction [ 1 ] This is an application for

summary disposition of certain claims of oppression. While there is considerable conflicting evidence, there is sufficient relevant uncontested evidence to allow the Court to make findings of oppression, and to grant remedies in relation to those findings. The application and decision however, do not address all issues between the parties, and further hearings or trials may be necessary. II. Facts

[ 2 ] I find as facts the following, except where indicated otherwise. [ 3 ] Dynasty Power Inc. is an electricity trading company incorporated in 2011 under the Business Corporations Act , RSA 2000, c B-9 by, among others, the Defendant Allan Cho and the Plaintiff Jason Brown. The shareholders of Dynasty Power, including Mr. Cho, Mr.

Brown, the Plaintiff JBRO Holdings Inc., and the Defendants 1713845 Alberta Ltd., 1691399 Alberta Ltd., Nancy Cho, Quacho Holdings Ltd., Gaurav Sharma, Christopher Quilley, Andrew Hoang, Kelly Elias and Todd McRae, entered into an Unanimous Shareholders Agreement dated July 1, 2013 (the USA.) [ 4 ] Mr. Brown provided capital to the new venture and held 275,000 shares in Dynasty Power, 10.38% of the share capital at the time it was formed. Through subsequent reorganizations, Mr. Brown's shares were converted, and then assigned to his holding company, JBRO Holdings. [ 5 ] Mr.

Brown served as a director and Chief Financial Officer of Dynasty Power. Dynasty Power expanded its trading operations through affiliates, the Defendants Dynasty North America Holdings Inc. (Dynasty NA) and Dynasty Energy California Inc. (Dynasty California). The shareholders of these companies are largely the same as those of Dynasty Power, and the directors and officers, being Mr. Cho, Mr. Sharma and Mr. Brown, were the same. All of these companies are incorporated under the ABCA.

However, there are no unanimous shareholder agreements governing these affiliates. [ 6 ] The Defendant Dynasty Property Holdings Inc. (Dynast Property) is a "sister company" of Dynasty Power. The shareholders of Dynasty Property executed an unanimous shareholder agreement dated November, 2014, (the Property USA) that largely mirrors the Dynasty Power USA. The Plaintiff JBRO Investments Inc. is a shareholder of this company. [ 7 ] On September 28, 2016, Mr. Brown's employment with Dynasty Power was terminated. The letter of termination states that termination was for cause, that Mr.

Brown had failed to fulfill his responsibilities as CFO, had attempted to cover up, or failed to disclose, serious errors he had made, and failed to provide the company with critical financial information. Specifically, it states that Mr. Brown failed to submit 2015 financial statements on time, and failed to understand and anticipate certain tax implications that affected the company. [ 8 ] The termination letter purports to remove Mr. Brown as a director of Dynasty Power. Mr. Brown commenced a wrongful dismissal action. [ 9 ] On April 18, 2016, Mr.

Brown had subscribed for 275,000 shares of Dynasty California, which were issued to his company, the Plaintiff JDFA Holdings Inc. The directors' resolution authorizing the issuance of the shares indicates that the corporation had received money on behalf of this, and other, share subscriptions. It indicates that the amount received from JDFA was $165,000 (USD). The resolution was signed by Mr. Cho, Mr. Brown and Mr. Sharma, the directors of Dynasty California. [ 10 ] On October 5, 2016, about a week after his termination, Mr. Brown advised Mr. Cho and Mr.

Sharma through their counsel that his subscription price for JDFA's shares in Dynasty California remained outstanding. Mr. Brown says that his understanding was that this would likely be addressed through negotiations with respect to his departure from Dynasty Power and the likely withdrawal of his involvement in the Dynasty group. He says that no request for payment of the subscription price for those shares was ever made, and that past practice indicated that the shares of Dynasty Power's affiliated companies had always been issued to shareholders prior to the company's receipt of funds.

Documentary evidence indicates that none of the subscribers had paid for their shares as of the date of the resolution, although payment from the other subscribers was made in the following months. [ 11 ] Mr. Brown says that, in post-termination discussions with Mr. Cho, he was asked to execute a revised USA that would substantially impair his rights within the company, including the ability to nominate a director, and included certain revisions to the definition of Fair Market Value which were incorporated by reference in the Shotgun-Buy/Sell provisions of Dynasty Power's USA.

He refused to do so. [ 12 ] He also says that Mr. Cho advised him that he was not agreeable to Mr. Brown continuing as a director of Dynasty Power and the other members of the Dynasty group, despite the terms of the USA. However, on February 13, 2017, Mr. Brown provided notice to the shareholders of Dynasty Power of his nomination of himself as a director of the company for the following year. [ 13 ] Mr. Brown says that, on or around February 23, 2017, he was told that the 2015 financial statements of Dynasty NA had been audited in the prior three months.

Although he was a director of that company, he had been excluded from all communications between the company's auditors and its directors. [ 14 ] On April 10, 2017, the other shareholders of Dynasty Power issued a Buy/Sell Notice to Mr. Brown under which they proposed to acquire JBRO Holdings' shares for consideration of $1,919,500.

In accordance with the notice, JBRO Holdings had the corresponding opportunity to acquire the shares of the other shareholders for $16,572,793. [ 15 ] JBRO Holdings responded, objecting to the notice on the basis that it did not comply with the terms of the USA and the requirement for a determination of Fair Market Value as set out in the USA. The JBRO group submits that material errors are contained in the valuation.

The remaining shareholders of Dynasty Power initiated legal proceedings on May 11, 2017, seeking a declaration that the Buy/Sell Notice had been properly issued and was binding upon JBRO Holdings in accordance with its terms. [ 16 ] Mr. Brown says that on May 16, 2017, he met with Todd McRae, the risk manager for the Dynasty group, and was informed that JDFA's shares in Dynasty California had been cancelled, and was further warned that the assets of the Dynasty NA would be moved to a company in which Mr.

Brown was not a shareholder if he did not agree to certain terms related to the buyout of JBRO's shares in Dynasty Power. [ 17 ] Mr. Brown says that on or about May 17, 2017, he received notice from Mr. McRae that on March 13, 2017, the shareholders of Dynasty California had removed him as a director by majority vote. In addition, he learned that immediately following that shareholders meeting, Mr. Cho and Mr. Sharma along with the company's counsel, Michelle S. Bullas held a meeting of directors and

resolved to void JDFA's share certificates in Dynasty California on the basis of non-payment of the subscription price. The directors' resolution states that the corporation had discovered that it had not received the subscription amount and the share certificate was "issued in error". [ 18 ] The Defendants do not contest these facts, except that Mr. Cho says that, in settlement discussions over the termination, Mr. Brown indicated a willingness to have his shares in Dynasty California cancelled. Mr. Brown denies this.

There are a number of inconsistent statements by various parties relating to the reason why the Dynasty California shares were voided. However, Mr. Cho concedes that the shares were voided without prior notice to Mr. Brown. [ 19 ] Effective June 15, 2017, Dynasty NA transferred a portfolio of derivative contracts to Dynasty California for consideration of $788,000 (USD). Mr. Cho says that this was the fair market value of this portfolio as of June 15, 2017, and that the assets sold represented less than 10% of the value of Dynasty NA at the time. Mr.

Cho's opinion with respect to the fair market value of the portfolio is not uncontested. However, it is uncontested that these contracts represented the majority of Dynasty NA's trading assets. [ 20 ] In June, 2017, following cancellation of his shares in Dynasty California, Mr. Brown says that he learned that Dynasty California had applied for participation in the PJM and MISO markets, being the markets in which Dynasty Power and Dynasty NA had traditionally operated. Dynasty California became active in those markets in September, 2017. [ 21 ] In December 2017, Mr.

Brown received dividends from Dynasty NA in respect of the JBRO group shareholdings in that company in the amounts of $466,981.13 USA and $237,641.51 CDN. [ 22 ] Mr.

Brown estimates that these amounts are equal to about 85% of the tangible net worth of Dynasty NA if proportionate amounts were issued to each of the other shareholders, thus closely approximating the JBRO group's respective share of the total trading capital of Dynasty NA. [ 23 ] Meanwhile, in the course of the application brought by the majority Dynasty Power shareholders for a declaration that the Buy/Sell Notice had been properly issued, Master Farrington issued an order dated December 7, 2017 directing that the applicants provide an extensive list of undertakings arising from the cross-examination of a Dynasty group officer on November 1, 2017.

The order also provided that any further affidavits be filed and served by January 31, 2018, that questioning be completed by February 26, 2018, and that, after these steps had been completed, the parties were to contact Master Farrington to arrange a special application for the nearest available date. [ 24 ] On December 20, 2017, however, the remaining shareholders of Dynasty Power discontinued their application and utilized a power of attorney contemplated by the USA for the purpose of completing the purchase of JBRO's shares, despite JBRO Holding's continued objections.

They tendered the purchase price set out in the notice to Mr. Brown, purportedly adjusted in accordance with the USA, in the amount of $2,033,979.39, plus a cheque for outstanding dividends declared by Dynasty Property in the amount of $98,000. JBRO Holdings has not accepted the tendered purchase price, but has deposited the cheque in trust with its counsel. The funds were subsequently directed to be held in trust by Mr. Brown's counsel pursuant to an order granted by Master Robertson on June 19, 2018, including a direction that dividends from Dynasty Property be paid into trust with Mr.

Brown's counsel and that enough funds to pay taxes be released to Mr. Brown. [ 25 ] On December 7, 2017, at a time when Mr. Brown was not a director, a meeting of directors was held for Dynasty Property. Following this, Ms. Bullas provided a notice to shareholders of the 2017 Annual General Meeting of Dynasty Property to be held on January 10, 2018. Ms. Bullas also provided a package of written resolutions for the shareholders' consideration in lieu of holding the meeting. [ 26 ] On January 10, 2018, Mr. Brown returned signed copies of the written resolutions to Ms.

Bullas by email. [ 27 ] However, on January 11, 2018, he received a reply email from Ms. Bullas indicating that she had checked her email prior to the meeting start time, and upon not receiving anything from Mr. Brown, had proceeded with the meeting. Mr. Brown points out that the receipt timestamp from his email was almost an hour earlier than Ms. Bullas informs him that she checked her email. Ms. Bullas did not provide any information pertaining to the resolutions passed at the meeting, but Mr.

Brown later learned that his nomination of himself as a director of Dynasty Property, a right granted pursuant to the terms of the Property USA, had not been acted on, and he was not elected as a director. [ 28 ] On March 20, 2018, the Plaintiffs filed a statement of claim commencing this action. [ 29 ] Mr. Brown says that, shortly after this, he searched the corporate record of the Dynasty group of trading companies and Dynasty Property and discovered that:

a) Dynasty Property's register of directors and officers had been revised to reflect that he had ceased to be director and secretary on October 27, 2017, although the 2016 and 2017 annual resolutions of the directors and officers had been fully executed effective November 16, 2016 and November 19, 2017, both appointing him as a director;

b) an annual general meeting of the shareholders of Dynasty Property was held on January 10, 2018. In attendance at this meeting was Mr. Cho, Ms. Cho and Ms. Bullas, with the remaining shareholders of Dynasty Property (exclusive of JBRO Investments) voting via proxy. During this meeting, a motion was passed to set the number of directors at two. Despite being entitled to one nominee pursuant to the Property USA, Mr. Cho offered two nominations, including himself and Mr.

Sharma, and a motion was carried electing them both as directors of the corporation. [ 30 ] From his review, he confirmed that Dynasty NA and Dynasty California had entered into two agreements in June and July of 2017, respectively entitled "Asset Purchase Agreement" and an "Amendment to the Asset Purchase Agreement". Under the terms of those agreements, Dynasty NA sold its Financial Transmission Rights trading portfolio to Dynasty California for the purchase price of $788,000 USD. The effect of those agreements is to transfer the trading assets of Dynasty NA to Dynasty California.

[ 31 ] Mr. Cho says that in the fall of 2018, Dynasty Property was considering acquiring a real estate asset. The parties disagree about circumstances surrounding this proposed acquisition, but this is not relevant to what subsequently occurred for the purpose of this application and the claims of oppression. [ 32 ] On November 6, 2018, Ms. Bullas provided Mr. Brown with a notice of directors meeting for Dynasty Property. The meeting was to be on November 28, 2019. Mr. Brown reminded Ms.

Bullas that he had been removed as a director, but asked whether there would be anything proposed at the Dynasty Property annual general meeting of shareholders outside of the usual required resolutions. [ 33 ] At the November 28, 2019 director's meeting, Mr. Cho and Mr. Sharma decided to request a cash call at the AGM. Mr. Brown did not receive the minutes of this meeting until January 4, 2019. [ 34 ] On November 29, 2018, Mr. Brown received notice that the AGM would be held on December 19, 2018. There was nothing out of the ordinary in the notice, which did not disclose anything about a proposed cash call. Ms.

Bullas, in reply to a question from Mr. Brown, confirmed that the notice contained the information as to what was going to be discussed at the shareholders meeting. [ 35 ] Mr. Brown says he was unable to attend the AGM due to a family emergency. He says he informed Ms. Bullas of this, and gave Mr. Hoang, who would be attending, a proxy with instructions on how to vote. [ 36 ] However, on December 20, 2018, following the meeting, JBRO Investments received a Notice of Cash Call. Mr. Brown had concerns with respect to this cash call, which he communicated to Ms.

Bullas, including whether it complied with the Property USA. However, on January 3, 2019, he deposited the amount that JBRO Investments was to pay pursuant to the cash call in trust with his counsel. [ 37 ] The minutes of the Dynasty Property AGM reflect the authorization of the cash call. Mr. Brown was appointed as a director, despite his absence. He submits that it was improper to authorize a cash call without a special meeting and notice to the shareholders, that it was premature in any event, and that he was misled about the nature of the business to be conducted at the meeting.

He also submits that other shareholders had information that he did not, which was confirmed by Mr. Cho. [ 38 ] On January 4, Mr. Brown asked for information from Ms. Bullas. He received an email back saying that his request for information was outside the requirements under which a shareholder can object to a cash call. The letter answered some of his questions and stated that there would be a deadline of January 9, 2019 for unconditional tender of his portion of the cash call, or that Mr.

Brown would be held in default under the Property USA. [ 39 ] On January 9, 2019, the Plaintiffs applied for an interim injunction preventing Dynasty Property or its shareholders from taking any steps against JBRO Investments pursuant to the Property USA, together with other relief. [ 40 ] On January 14, 2019, I granted the following relief:

a) an interlocutory injunction enjoining Dynasty Property or its shareholders from taking any steps against the applicant pursuant to the Property USA;

b) a direction that Dynasty Property produce specified information to the applicants for purposes of evaluating the notice of cash call; and

c) a direction that JBRO Investments pay the amount required by the cash call into trust with its counsel and provide an undertaking as to damages, both of which had been proposed by the applicants. [ 41 ] The balance of the application was directed to be heard at a special application on the commercial list on a date to be agreed upon by the parties. [ 42 ] I commented as follows: …it is in fact true that this is complex litigation that could tie up the corporation and it could affect the profitability of all of the shareholders.

This litigation has been ongoing for a fair period of time; not a lengthy period of time, given the complexity of the matter. I would strongly urge counsel to consider either an arbitration or a mediation or a judicial dispute mediation to see whether they could avoid years of litigation from this point on. We don't force people into that process, but I think this is an ideal situation for a mediation or a JDR. [ 43 ] I advised that I was not seized with the matter, and that I would not be sitting for most of February and March. [ 44 ] On January 29, 2019, counsel for the Dynasty group advised counsel for Mr.

Brown that the company was not looking to pursue the acquisition of property, given "the uncertainty surrounding Mr. Brown's tender of the cash call funds and his involvement in any contemplated real estate acquisition as a result of the Order of Justice Romaine." [ 45 ] Counsel for the Dynasty group indicated that Dynasty Property intended to convene a special meeting of shareholders for the purpose of rescinding the cash call. He indicated that, since the issue was thus moot, there was no need to

schedule a hearing date on the commercial list. Mr. Brown and his counsel disagreed. [ 46 ] A flurry of correspondence ensued, some of which was copied to the Court, over the form of order and whether or not to return the matter to the commercial list. On February 4, 2019, a Dynasty Property directors' meeting was held, which Mr. Brown attended. It is clear from the affidavits that the meeting was unproductive. [ 47 ] On February 12, 2019, counsel for Mr. Brown advised counsel for the Dynasty group that he was agreeable to scheduling a mediation or JDR, but wanted to see the documents on the Dynasty affidavit of records first. Further meetings were held on February 15

and February 19, 2019, which appear to have been confrontational and unproductive. [ 48 ] In March, 2019, the cash call in Dynasty Property was rescinded. The funds equal to the cash call ($105,000) paid by Mr. Brown into trust were released without conditions. The order directing release indicated that the undertaking as to damages provided by JBRO group be vacated, and that no party be considered in default of the Property USA and no steps be taken against JBRO Investments as a defaulting shareholder notwithstanding the return of funds. [ 49 ] On April 1, 2019, my assistant sent an email to counsel for Mr.

Brown confirming that the matter could be heard by another justice on the commercial list. The matter was set down for hearing before Eidsvik, J. on August 15, 2019, but she directed that the matter be set down before me instead. [ 50 ] On December 18, 2019, I heard the application of the JBRO group for a variety of relief against the Dynasty group, including:

a) a declaration that the cash call issued by Dynasty Property on December 19, 2018 was invalid on the basis of non-compliance with the Property USA and the ABCA ;

b) a declaration that the business affairs of Dynasty Property and the actions of the other directors of Dynasty Property, Mr. Cho and Mr. Sharma, have been carried out in a manner that is oppressive, unfairly prejudicial or which unfairly disregards the interests of JBRO Investments as shareholder and Mr. Brown as director;

c) an order regulating the business and affairs of Dynasty Property, Dynasty California, and Dynasty NA and removing Mr. Cho and Mr. Sharma as directors and officers of those corporations;

d) an order for full-indemnity costs of the January 11 and January 14, 2019 applications before Jones, J. and Romaine, J. as well as for all actions taken in respect of the cash call generally;

e) a declaration that the business and affairs of Dynasty California and Dynasty NA have been conducted in a matter that is oppressive, unfairly prejudicial or which unfairly disregards the interests of JDFA and JBRO Investments; appointment of an investigator pursuant to

Part 18 of the ABCA ; an order to preserve the records of Dynasty California and Dynasty NA;

f) an order reinstating JDFA's shares of Dynasty California and varying or setting aside the agreements which have transferred the value of Dynasty NA to Dynasty California to the exclusion of the applicants and compensating the applicants for the above transactions;

g) costs of the action in respect of the issues pertaining to Dynasty California and Dynasty NA on a solicitor-and-own-client basis;

h) a direction to Dynasty Power regarding the release of funds to JBRO Holdings and JBRO Investments, and payment of interim costs and disbursements of Mr. Brown, JBRO Investments, JDFA Holdings and JBRO Holdings with respect to the remainder of the action; and

i) procedural orders with respect to any matters not dealt with at the hearing. [ 51 ] The Dynasty group submits that the application should be dismissed, but that, if any order is made with respect to Dynasty Property, that the Court direct that Mr. Brown's shares be valued and purchased by the other shareholders.

They also asked the Court to grant a procedural order with respect to the prosecution of the litigation and a direction that the parties participate in a judicial dispute resolution. [ 52 ] The parties agreed that funds held in trust pursuant to this Court's January 14, 2019 order should be returned to JBRO Investments, and that the company be released from its undertaking as to damages. The JBRO applicants also asked for certain relief against AIM Law and Ms. Bullas, but I directed that Ms. Bullas should be represented and be able to make representations regarding that relief. Ms.

Bullas now has counsel, but the issues relating to the allegation of conflict have not yet been heard. [ 53 ] I reserved my decision. At the hearing, Mr. Brown applied for interim costs. Since we were out of time to hear that issue, I directed his counsel to provide the evidence upon which he relied to indicate financial need. [ 54 ] Counsel for Mr. Brown and JBRO Holdings provided a letter responding to this direction on December 20, 2019. Counsel for the Dynasty group sent a response to that letter on January 3, 2020. Counsel for Mr.

Brown sent a further response on January 8, 2020, and counsel for the Dynasty group responded on January 13, 2020. All of this correspondence, other than the first letter, offered new evidence and argument. [ 55 ] On January 14, 2020, I asked counsel to refrain from sending me further correspondence the matter, and advised them that I would review what had been received and let them know whether a further appearance would be necessary. [ 56 ] On June 1, 2020, counsel for the JBRO applicants sent me a consent order to be signed allowing the parties to book a JDR notwithstanding that a Form 37 had not been filed.

I took this to mean that the parties had agreed to a JDR to attempt to settle the matters that were the subject of the December hearing, and I did not issue a decision on the application. [ 57 ] The parties discussed booking a JDR date. Unfortunately, given the unsettled state of affairs at the Court relating to the COVID pandemic, the signed order was not sent back to counsel for the JBRO group until early August. [ 58 ] On September 14, 2020, counsel for the Dynasty group contacted counsel for JBRO asking if Mr.

Brown was still interested in pursuing a JDR, and offering to discuss dates. [ 59 ] On September 22, 2020, the parties appeared before me for a hearing relating to issues involving Ms. Bullas and the JBRO group's application to have her removed as counsel for the Dynasty group. I asked for a report on the proposed JDR, and was advised by counsel for the JBRO group that the parties "had gone back and forth" on the JDR. Counsel for the JBRO group advised that, despite

discussions with the Dynasty group about scheduling a JDR, and the signed consent order, the JBRO group now wanted to have some determination of the issues that were raised at the December hearing, including the issues of oppression, and wanted a direction with respect to a valuation of the corporations before they attempted a JDR. They also wanted an inspector appointed. [ 60 ] Counsel for the Dynasty group submitted that giving the JBRO group the relief it was seeking before a JDR "was putting the cart before the horse".

He submitted that the parties could participate in a JDR immediately, and that if there needed to be questions of valuation, the parties could agree to have assets valued. Counsel for the Dynasty group confirmed that he had expected that the parties would attempt a JDR before I gave a decision arising from the December hearing. [ 61 ] The Dynasty group correctly noted that the issue of valuations and valuation dates was not part of the December application and had not been briefed nor argued, so that the Court would have difficulty giving directions on the issue.

Counsel for the JBRO group confirmed that he was not asking the Court to make a determination on a valuation date. [ 62 ] I directed the parties to prepare briefs for my consideration on what issues needed to be decided before the matter proceeded with a JDR, and why. In December, 2020, I directed the parties to attend a JDR. The resulting order stipulated that if they were unable to obtain an early booking, I would arrange an expedited date. The issues that were to be canvassed during the JDR were the issues identified during the December hearing as well as the issues in the termination of employment litigation.

After the JDR, they were to

schedule a case conference meeting to discuss the remaining issues to be resolved, if any. [ 63 ] On January 22, 201, a JDR was conducted by Eamon, J. Subsequently, I was advised that the JDR had not been successful in resolving any of the issues. [ 64 ] The report arising from the JDR indicates that the parties declined to discuss a process to fix a valuation date because it would be more efficient to pursue that issue with this Court given my prior involvement and the related application that is presently under reserve.

The matter was thus returned to me for a decision on the reserved application and to discuss a process for fixing a valuation date. Eamon, J. noted the parties might need an application under Rule 8.5 or a case conference under Rule 4.10 to

schedule a trial date as they presently do not appear to agree on required trial time. [ 65 ] On March 12, 2021, I invited the parties to provide an update of factual matters that may be relevant to the oppression application. [ 66 ] The resulting responses provided some updated factual information, but also included re-argument and new arguments on the December hearing issues. [ 67 ] New co-counsel for the Dynasty group advised that she had been instructed to bring an application to consolidate, join together, or hear one after the other, the oppression lawsuit and the wrongful employment lawsuit. She also requested me to hear an application for advice and direction on the

interpretation of the Property USA. [ 68 ] By letter dated April 16, 2021, I declined to hear the joinder application and advised that I would proceed to make a decision on the oppression application, taking into account the factual updates but not the re-arguments. I indicated that, after that, I would be prepared to facilitate an early hearing of Dynasty Property's application with respect to

interpretation of the Property USA. [ 69 ] The following new and relevant facts emerged from the exchange of letters:

a) in March, 2021, the shareholders of Dynasty Power other than the JBRO plaintiffs formed a new company and bought a building. Dynasty Power has relocated to that building;

b) Dynasty Property has conducted no business since the interim injunction granted in January, 2019. The shareholders, other than the JBRO plaintiffs, wish to use the buy-sell provisions of the Property USA to buy-out the JBRO group, or be bought out;

c) Dynasty NA has had no active business since its June 2017 divestiture of its portfolio of derivative contracts to Dynasty California. However, Dynasty NA retained a bank account balance of approximately $1,300,000 (USD) which was held in reserve to satisfy a potential contingent liability. That liability has now been resolved and the Dynasty group respondents want Dynasty NA to be wound up by selling its investment in a US subsidiary to a related party. However, they concede that Dynasty NA cannot proceed in the face of the ongoing litigation.

The respondents advise that Dynasty NA intends to convene a special meeting of its shareholders to consider and if thought appropriate, approve the sale of this US subsidiary to a related party and the voluntary dissolution of Dynasty NA; and

d) since December 2019, Dynasty California has continued its trading business and expanded its operations. III. Issues

a) Is this application capable of being decided on a

summary basis?

b) Are the applicants entitled to relief from oppression with respect to Dynast Property, Dynasty NA and Dynasty California?

c) If so, what relief should be granted? IV. Analysis A.

Summary Disposition

[ 70 ] The Dynasty group submits that this is not an appropriate case for

summary disposition, referring to the massive amount of affidavit testimony, documentary exhibits, questioning transcripts, exhibits and undertaking responses, and the fact that much of the evidence is in dispute. [ 71 ] The proper approach to be taken in determining whether

summary disposition of a claim is available under Rule 7.3 of the Rules of Court is to determine whether there is merit to a claim or an absence of a defence to it: Weir-Jones Technical Services Incorporated v Purolator Courtier Ltd. , 2019 ABCA 49 at para 21 . [ 72 ] The Court in Weir-Jones referred to the principles articulated by the Supreme Court of Canada in Hryniak v Mauldin ( 2014 SCC 7 at para 49 ), confirming that in order to make a "fair and just

summary determination", the foundational criteria is that the record before the court and the issues must:

a) allow the judge to make the necessary findings of fact;

b) allow the judge to apply the law to the facts;

c) assuming the first two parts of the test are met, satisfy the court that

summary disposition is a proportionate, more expeditious and less expensive means to achieve a just result. [ 73 ] The moving party has the burden of proof and is required to establish that, on a balance of probabilities, and considering the facts, the record, and the law, it is entitled to

summary judgment on the merits of the case, and that there is no genuine issue for trial. [ 74 ] The Court in Weir-Jones set out four primary considerations to be applied in the context of determining a

summary judgment application, being:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that here is either "no merit" or "no defence" and that there is no genuine issue requiring a trial?

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that she is prepared to exercise the judicial discretion to summarily resolve the dispute. [ 75 ] While there is considerable conflicting evidence on such issues as the development and growth of the Dynasty group, Mr. Brown's contributions to the businesses, conflicts during meetings concerning the Dynasty Holdings cash call and its subsequent rescission, I am satisfied on the basis of relevant uncontested admissible evidence that the issues before me in this application can be resolved summarily.

The conflicts in the evidence do not affect essential facts: Re Floden Services v Solomon , 2015 ABQB 450 at para 21 ; Compton Petroleum Corporation v Alberta Power Ltd. , 1999 ABQB 42 at para 14 . [ 76 ] The JBRO group has met the burden of establishing that there is no merit or defence on the basis of the uncontested facts, and the Dynasty group has not demonstrated that, with respect to the allegations of oppression dealt with in this application, there is a genuine issue requiring a trial. Deciding these issues will better equip the parties to proceed to resolve the remaining issues. B.

Oppression [ 77 ] An oppression remedy is available when a complainant satisfies the court that a corporation or its directors acted or refrained from acting in a way that was oppressive or unfairly prejudicial to, or that unfairly disregarded the interests of any parties, including, among others, security holders, former registered holders of securities, directors or officers. The goal of the remedy is to provide for the protection of the reasonable expectations of the parties who fall within the protected classes.

The determination of reasonable expectations is contextual, and necessarily depends on the particular circumstances, determined on a case-by-case basis: McGovern- Burke v Martineau , 2016 ABQB 514 at paras. 55-57 .

When assessing these expectations, the court should look, not only at what is legal, but also what is equitable or fair: Re BCE Inc. , 2008 SCC 69 at para 58 . [ 78 ] Section 242(2) of the ABCA , sets out the statutory basis for an oppression claim involving an Alberta corporation: If, on an application under subsection (1), the Court is satisfied that in respect of a corporation or any of its affiliates

a) any act or omission of the corporation or any of its affiliates effects a result,

b) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or

c) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interest of any security holder, creditor, director or officer, the Court may make an order to rectify the mattes complained of. [ 79 ] In BCE , the Supreme Court of Canada articulated a two-step framework for the oppression remedy. First, courts must determine whether a complainant's expectations are reasonable.

Second, if the complainant's expectations are reasonable, the complainant will be entitled to a remedy if breach of those reasonable expectations is oppressive, unfairly prejudicial or unfairly disregarding of its interests.

[80] The Court in reviewing the concept of reasonable expectations noted at para 71 as follows: Actual unlawfulness is not required to invoke s.[242(2)];the provision applies "where the impugned conduct is wrongful, even if it is notactually unlawful"... The remedy is focused on concepts of fairness and equity rather than on legal rights. In determining whether there isa reasonable expectation or interest to be considered, the court looks beyond legality to what is fair, given all of the interests at play. ...

Itfollows that not all conduct that is harmful to a stakeholder will give rise to a remedy for oppression as against the corporation.(emphasis added) [81] In BCE, the Supreme Court identified seven factors important in determining whether a reasonable expectation exists: First, parties form expectations based on general commercial practice; if a business alters its practices in a way that undermines thecomplainant's exercise of his or her legal rights, the complainant could be entitled to a remedy.

Second, the "size, nature and structure" ofthe corporation influence reasonable expectations; consequently, there is more leeway to deviate from commercial formalities fordirectors of small corporations than for directors of larger companies. Third, the relationships between the complainant and othercorporate actors form expectations, and different standards govern non-arm's length relationships, such as between friends or family, andarm's length relationships, such as those between shareholders in public corporations.

Fourth, shareholders can form reasonableexpectations based on the past practices of a corporation, "on matters relating to participation of shareholders in the corporation's profitsand governance". Practices and expectations can change over time, and "where valid commercial reasons exist for the change and thechange does not undermine the complainant's rights, there can be no reasonable expectation that directors will resist a departure from pastpractice". Fifth, it is important to determine whether the complainant could have taken any preventative steps to protect itself from thealleged harm.

Sixth, shareholder agreements and any representations made to stakeholders or the public via promotional materials arerelevant in determining reasonable expectations. For the final factor, the Court directed that any conflicting interests ought to be resolvedby the directors"[acting] in the best interests of the corporation, having regard to all relevant considerations, including, but not confinedto, the need to treat affected stakeholders in a fair manner, commensurate with the corporation's duties as a responsible corporate citizen:BCE at paras 72-82., as described in J.

Girgis, "Oppression Remedy v Fraudulent Conveyance Legislation," in Jill Corvaini and theHonorable Blair Nixon, eds, Annual Review of Insolvency Law 2020, Thomson Reuters Canada Limited at footnote 179. [82] The Court also noted that determining whether an expectation is reasonable may be complicated by the fact that the interestsand expectations of different stakeholders may conflict. "The corporation and shareholders are entitled to maximize profit and sharevalue, to be sure, but not by treating individual stakeholders unfairly.

Fair treatment - the central theme running through the oppressionjurisprudence - is most fundamentally what stakeholders are entitled to 'reasonable expect'". BCE at para 64. [83] The existence of reasonable expectations is a question of fact.

The existence of these expectations may be reasonably inferredfrom circumstantial evidence: Arthur v Signum Communications Ltd (Ont Div Ct), [1993] OJ No 1928 at paras 6-7; Ford Motor Co. ofCanada v Ontario Municipal Employees Retirement Board, (ON CA), 79 O.R. (3d) 81 at para 65. [84] As noted by the JBRO group, in some circumstances, reasonable expectations can simply be assumed. A shareholder canreasonably expect that the corporation will comply with the applicable principles of corporate law (Buttarazzi Estate v Bertolo, (ON SC), [2004] OJ No 20 at paras 15 and 18) and common law duties.

All shareholders have a reasonable expectationthat the parties will comply with the requirements of applicable statutory provisions and the corporation's own constating documents.Courts may also infer that shareholders will be kept apprised of material developments affecting the corporation (Capobianco v Paige,[2007] OJ No. 3426 at paras 228-330), and that shareholders who had previously participated in the management of the corporation willnot be excluded from such participation contrary to past practice. [85] Where a reasonable expectation is not assumed, the Court can consider the history of the parties' relationships, including thecircumstances surrounding the commencement of the business, the roles played by the parties in the operation and management of thebusiness, and prior agreements between the parties with respect to the operation of the business: Pelley v Pelley, [2003] N.J.

No 13 atpara 32. [86] Specifically, the existence of a unanimous shareholders' agreement may help to ascertain the intention of the shareholderswith respect to such matters, as such agreements are often viewed as reflective of shareholders "compact": Main v Delcan Group Inc., (ON SC), [1999] OJ No 1961, citing 218125 Investments Ltd v Patel, [1995] AJ No 1222. [87] As noted in Main, an action in violation of a unanimous shareholders' agreement cannot possibly be said to be reasonablyexpected by a complainant: para 50-51. [88] An oppression remedy is available if one of three statutory tests is met.

The threshold test of "oppression" requires bad faith,but the other two tests only require unfairness. Conduct that is "unfairly prejudicial" to or that "unfairly disregards" the complainant doesnot require an assessment of intention. Instead, the court must consider the effect of the impugned behaviour on the complainant, an actor omission that "effects a result" that is oppressive or unfairly prejudicial to the interests of the security holder, director or officer. Asnoted in BCE, wrongs falling short of oppression fall within the remedy.

Examples of unfair prejudice include squeezing out a minorityshareholder: at para 93. The impugned acts need not be unlawful; they must merely be wrongful: Robert WV Dickerson, John L.Howard and Leon Getz, Proposals for a New Business Corporations Law for Canada, Vol 1 (Ottawa: Information Canada 1971) at para485(c). [89] The court may apply "general standards" of fairness to decide cases on their merits: Ibid at para 484. [90] The claimant bears the burden of establishing his expectations are reasonable.

The ABCA gives the court a wide discretion toremedy virtually any corporate conduct that is unfair, including the flexibility to craft an appropriate remedy notwithstanding strict legaltechnicalities. First Edmonton Place v 315888 Alberta Ltd., (AB KB), [1988] AJ No. 511; Wind Ridge Farms Ltd vQuadra Group Investments Ltd., (SK CA), [1999] SJ No. 602. But as noted in Wilson v Alharayeri, 2017 SCC 39at paras 26 and 27, this discretion is not limitless. A court may only remedy the oppression, and go no farther than necessary to correctthe injustice or unfairness found between the parties: Wilson at para 53.

C. The Cash Call [91] The Dynasty group submits that the application is moot, in that the cash call has been rescinded. However, the JBRO groupdoes not allege oppression merely on the basis of the cash call, although the series of events surrounding the cash call are part of thehistory of the relationship among the parties. The JBRO group submits that the validity of the rescission of the cash call itself isindicative of unfair prejudice, as being contrary to the terms of the Property USA.

While a remedy of rescission of the cash call may nolonger be necessary, the manner in which it was issued and then rescinded is evidence of circumstances relevant to the allegation ofoppression. [92] The Dynasty group relies on the case of Borowski v Canada (Attorney General), (SCC), [1989] 1 S.C.R.342 at para 15 in support of its submission that the application is moot.

However, in this case, there continues to be a "present livecontroversy … which affects the rights of the parties" despite the rescission of the cash call. [93] The Property USA states at paragraph 6.02 that each shareholder agrees to advance funds "as may be determined by thedecision of Shareholders determined at a special meeting of the shareholders within the time limits specified by such Shareholders." [94] The uncontested facts are that, in January of 2018, a meeting of shareholders was called with respect to such standard mattersas the approval of financial statements and the election of directors. [95] The Property USA provides Mr.

Brown with the right to nominate one director. Although there is conflicting evidence withrespect to why Mr. Brown's nomination of himself as a director was not acted upon, the fact is that Mr.

Brown was not elected as adirector, contrary to the provision of the USA, and was not again a director until the annual meeting of directors in December of 2018. [96] The notice of annual general meeting of Dynasty Property mailed to shareholders on November 29, 2018, stated that thematters to be dealt with at the meeting on December 19, 2018, included the usual business of an annual meeting, including the electionof directors. The notice did not contemplate a cash call. The uncontested evidence is that Mr. Brown could not attend due to a familyemergency, but provided directions by way of proxy.

He asked for, and received, confirmation from counsel to the corporation that thenotice set out all the business that would be discussed at the meeting. He sent an email asking that his name be put forward as a director,and "[p]lease inform me of any business discussed at the meeting other than that which is identified in the notice, if any." [97] The next day he received notice of the cash call, which was issued by the directors, rather than the shareholders, at a generalannual meeting rather than a special meeting, without notice that it was going to be discussed.

It is clear that the issuance of the cash callwas not in accordance with the provisions of the Property USA, and was without notice to Mr. Brown. [98] The JBRO group submits that the Court can draw the reasonable inference that the other shareholders had been discussing thecash call without Mr. Brown's participation. That inference is supported by Mr. Cho's evidence. The complainants submit that, in thecircumstances, the remaining shareholders and directors were conducting themselves to the exclusion of Mr.

Brown, in order to acquirehis shares at a discount pursuant to the default provisions of the USA. [99] It is not necessary for the JBRO group to establish that the impugned events were motivated by the desire to remove Mr.Brown and his companies as shareholders in the Dynasty group, or that the cash call had no valid business purpose. As noted at para 42of Wilson, "the oppression remedy [is] concerned with the effects of oppressive conduct, not the intent of the oppressor." [100] The Dynasty group admits that the cash call did not comply with the terms of the Property USA, and that it was not discussedwith MR.

Brown, but submits that "… the way these companies have always run, they've never gone through this kind of formality."However, given that this was the first and only cash call made by the company, and the cash call had material financial implications toMr. Brown as a shareholder, the requirements of the Property USA were not a mere formality. [101] It can be assumed that Mr.

Brown and JBRO Investments could reasonably expect that Dynasty Property and its directors andshareholders would comply with the provisions of the Property USA. [102] It can also be assumed that JBRO Investments would be kept apprised of information provided to the other shareholders ofDynasty Property, particularly given past practice and the fact that the proposed cash call was discussed with other directors. [103] The evidence is clear that breach of that reasonable expectation led to a result that was unfairly prejudicial to the JBRO group,and unfairly disregarded its interests.

Even though the cash call has been rescinded, the JBRO group was forced to undertake thislitigation to protect its rights and ensure that it was not further prejudiced by the conduct of Dynasty Properties' directors. I therefore findthat Mr. Brown and JBRO Investment's expectations were reasonable, that they were breached and that they are entitled to a remedy, asthe breach was unfairly prejudicial to Mr. Brown and JBRO Investments. [104] The applicants make reference to other complaints of oppression that involve Ms. Bullas.

I reserve on these allegations until Ms.Bullas has had an opportunity to make submissions on them. D. The Cancellation of Shares in Dynasty California. [105] While it may be correct, as the Dynasty group argues, that JDFA did not pay, and still has not paid the subscription price for itsshares in Dynasty California, that is not sufficient answer in the circumstances to the allegations of oppression. [106] As Mr.

Brown attests, the documentation corroborates, and the Dynasty group does not contradict, when the shares in DynastyCalifornia were issued by a resolution dated March 2, 2014, nearly all the parties to whom the shares were issued had not yet paid theirsubscription price, despite all of them stating otherwise in their written subscriptions of March 2, 2014. While all of them other thanJDFA did so after the shares were issued, Mr. Brown gives a reasonable explanation as to why JDFA did not pay its subscription priceprior to the directors of Dynasty California unilaterally voiding the shares.

[ 107 ] The Dynasty group submits Mr. Brown offered no excuses for this, other than "laziness", and that the evidence suggests that "by late 2016 [Mr. Brown] had reached the considered decision not to make this payment". However, the evidence of Mr. Brown is more nuanced on this point. He denies that he had no intention of making the payment. He states that he planned to pay the subscription price due in September 2016, but on August 23, 2016 he learned that Dynasty Power had set in motion steps to facilitate the termination of his employment.

As a result, he assumed that the outstanding subscription price would become one of the issues discussed in respect of his termination from Dynasty Power. [ 108 ] While he concedes during questioning that part of his decision for not tendering his share subscription in May or June of 2016 was "maybe being lazy", he also says that this was a precedent that had been set from the organization of previous affiliates, that it was the normal course of business that "money kind of trickled in". [ 109 ] While there may be contradictory evidence from representatives of the Dynasty group on whether this was the normal course of business for the Dynasty companies, it is not necessary that I decide this issue.

The relevant chain of events is that shortly after the termination date, the Dynasty group became aware that JDFA's subscription price for the Dynasty California shares was still unpaid. It is uncontested that the unpaid subscription price was part of settlement discussions between Mr. Cho and Mr. Brown pertaining to his termination, although evidence with respect to the particulars of those discussions conflicts. On May 17, 2017, Mr. Brown was informed that Mr. Cho and Mr. Sharma had resolved on March 13, 2017 to void JDFA's shares in Dynasty California on the basis of non-payment of the subscription price. Mr.

Brown was given no notice that his assumption that the issue of the unpaid subscription price would not be dealt with as part of settlement discussions over his termination, nor any opportunity to pay the amount before the shares were voided. As counsel for the Dynasty group concedes, these were not the kind of companies where formalities were generally observed, except, it appears, in this case. [ 110 ] The Dynasty group speculates that the reason why Mr. Brown did not pay the subscription price was that Dynasty California was in a loss position. There is no evidence that this was Mr.

Brown's motive other than Mr. Cho's opinion. [ 111 ] Mr. Brown and JDFA could reasonably expect that if his assumption that the payment of the subscription price could be dealt with as part of settlement negotiations over his termination was not acceptable to the Dynasty group, he would receive notice of that fact before the shares were voided. That this assumption was reasonable is corroborated by the fact that Mr.

Cho in his questioning confirmed that the issue of the payment of the subscription price for the shares was discussed during settlement discussions. [ 112 ] It is uncontested that the Dynasty group did not issue a demand for payment of the subscription price nor did Mr. Cho and Mr. Sharma notify Mr. Brown of their intention to void the shares before they acted. Mr. Brown could reasonably expect that, as a director and shareholder of Dynasty California, he would be given such a demand or notice in the circumstances of continuing settlement discussions. Mr.

Brown could also reasonably expect that he would be given prompt notice of the voiding of the shares. Instead, he was not notified for two months. [ 113 ] Although Mr. Brown does not have to establish a motive for the voiding of the shares without notice, his contradicted evidence is that he was told by a member of the Dynasty group management after the shares were voided that if they could not come to an agreement on Dynasty NA, that "we'll dividend the money out and start a new company". [ 114 ] I also note that Mr.

Cho in his questioning on affidavit confirmed that Dynasty NA's business had been transferred to Dynasty California, and that as a result of those transactions, he would agree that the shareholders of Dynasty California now enjoyed the benefit of all of the profits that would be generated by the trading in Dynasty Energy Group LLC; and that the only distinguishing factor between the shareholders of Dynasty California and Dynasty NA is the fact that Mr.

Brown's holding company is not now a shareholder of Dynasty California. [ 115 ] The evidence of whether there was a legitimate business purpose to the transfer of operations is conflicting, and I do not make any findings on this issue in this decision, nor do I make any determination on the allegations of oppression that arise from the transfer, given the conflicting evidence. [ 116 ] The Dynasty group submits that Mr. Brown could not have had a reasonable expectation that he would continue to be a shareholder of Dynasty California indefinitely if he did not pay the subscription price.

This is not the issue: his reasonable expectation was that if the payment of the subscription price was no longer going to be part of settlement discussions, he would be advised of that, and that he would receive notice of an intention to void the shares. [ 117 ] The Dynasty group also submits that Mr. Brown knew that it was expected that all shareholders of the subsidiary companies would be employees. While this may be true, it would be reasonable for Mr. Brown to assume that, in that case, his shares would be purchased by the company, not voided. [ 118 ] The Dynasty group also submits that Mr.

Brown did not object to the cancellation of his shares. This is not the evidence. Mr. Brown provided copies of emails objecting to the voiding of JDFA's shares to Ms. Bullas. [ 119 ] I therefore find that Mr. Brown and JDFA’s expectations were reasonable, that they were breached, and that they are entitled to a remedy, as the breach was unfairly prejudicial to Mr. Brown and JDFA. While Dynasty California and its directors may have acted within their strict legal rights, they acted in bad faith.

It is fair to infer from the uncontested evidence that the intention, and the effect, was to deprive the JBRO group from any profit arising from the Dynasty California trading operations. IV. Remedies A. Dynasty Property Holdings, Allan Cho and Guarav Sharma

[ 120 ] Since the cash call has been rescinded, certain relief claimed by the applicants with respect to that call is no longer necessary. However, Mr. Brown and JBRO Investments have had to incur legal fees and expenses with respect to the cash call, and it is appropriate and consistent with the principle that a remedy for oppression should correct the unfairness suffered as a result of events surrounding the wrongful act to grant Mr. Brown and JBRO Investments costs of the litigation as it relates to the cash call on a solicitor-client basis against Dynasty Property and Dynasty Property's directors Mr.

Cho and Mr. Sharma, on a joint and several basis, payable forthwith. [ 121 ] The conduct of Dynasty Property and its directors with respect to the cash call, characterized by its complete disregard of the JBRO group's interests under the Property USA, and their failure to inform, much less confer, with the complainants in advance of acting on the call, raises their conduct to the standard of oppression, as opposed to the lesser standard of unfair prejudice or unfair disregard. I agree with the comments of R.A. Blair, J, as he then was, in Naneff v Con-Crete Holdings Ltd.

(1993) OJ No 1756 at para 10 : The discrepancy between party and party costs and solicitor and client costs, in to-day’s litigation, is quite significant. To confine the plaintiff to the lower scale of costs would simply be to compound the effect of that “oppressive” conduct. As Austin, J. noted in the Arthur case (p. 124 of the Quicklaw Report) respecting the applicant in that case, so to with Alex Naneff: “He had to alternatives to go forward at whatever cost, or to surrender and accept what he was offered.

To give him party and party costs in such circumstances would be to penalize him for his persistence, for being right. It would be to concede that might is right.” [ 122 ] The Dynasty group concedes that the Property USA was not followed, but chose to continue to press for the cash call and to threaten Mr. Brown with default. This conduct is egregious and indemnity costs are appropriate. [ 123 ] I direct that counsel for the JBRO group provide me with details of their solicitor-client costs and disbursements, for my review and approval. [ 124 ] It appears that Mr. Brown is still a director of Dynasty Property.

If he is not, I direct that Mr. Brown or his nominee be reinstated as a director, that he receive adequate written notice of any meetings of directors and notice in accordance with corporate regulation and the Property USA with respect of any meetings of shareholders. I direct that any meetings of directors or shareholders are recorded. If these meetings prove to be unmanageable, the JBRO group may apply for further relief. [ 125 ] Mr.

Brown and JBRO Investments are entitled to access to all documentation, records and financial statements that a director and shareholder of Dynasty Property may be entitled to, or has been given, including documents and records created since the injunction was granted. If there are any claims of privilege over these records, the party seeking to assert the privilege shall bring an application to determine that issue within one month of asserting the privilege. B. Dynasty NA and Dynasty California, Mr. Cho and Mr.

Sharma [ 126 ] It is consistent with the principle that oppression be corrected in a manner that is proportional, and directly connected to the oppression to order that JDFA's shares in Dynasty California be reinstated, retroactive to the date they were improperly voided. [ 127 ] I direct that JDFA release the subscription price currently held in trust to Dynasty California within three business days of notification that the shares have been reissued. [ 128 ] JDFA is entitled to all dividends that ought to have been paid to JDFA but for the oppressive conduct of Dynasty California, Mr. Cho and Mr.

Sharma, and entitled to release any previous dividends held in trust, without prejudice to any further claims it may have relative to the transfer of assets of Dynasty NA to Dynasty California, and any rights that may accrue to the JBRO group as a result of that transfer. [ 129 ] Reinstatement of the shares in the most minimally intrusive remedy possible to correct the oppression, without in effect awarding the Dynasty group for their oppressive conduct. [ 130 ] Mr.

Brown and JDFA are entitled to access all records, documents and financial statements of Dynasty NA and Dynasty California, including records and documents created since the shares were improperly voided. If there are any claims of privilege over these records, the party seeking to assert the privilege shall bring an application to determine. [ 131 ] For the same reasons as indemnity costs were awarded with respect to the cash call, Mr.

Brown and JDFA are entitled to costs of the litigation as it relates to the issue of the voiding of the Dynasty California shares on a solicitor-and-own client basis against Dynasty California. Mr. Cho and Mr. Sharma on a joint and several basis, payable forthwith. Again, I direct that counsel for the JBRO group provide me with details of the costs and disbursements for my review and approval. [ 132 ] The JBRO group seeks to have an inspector appointed with broad powers to enter premises, require the production of documents, conduct hearings and examine witnesses under oath.

I am not persuaded that such extraordinary relief is necessary at this point in the proceedings if the Dynasty group complies with my directions with respect to access to records, documents and financial records. If such access becomes problematic, the JBRO group have leave to apply for further relief. [ 133 ] The JBRO group also seeks to have Mr. Cho and Mr. Sharma removed as directors.

Given that the parties now agree that the Dynasty group cannot continue to operate on the present basis, and that the next step should be a procedural order that ensues that the JBRO group interests in the Dynasty group can be bought out in a fair and reasonable manner, subject to the terms of the USAs, this relief would be overly intrusive to the continuation of the business, and I decline to grant it at this time. C. Outstanding Issues [ 134 ] The issue of the validity of the Buy/Sell Notice was not before me on this application, and therefore, I make no determination of

whether the conduct of Dynasty Power and its directors including up to and following the Buy/Sell Notice was oppressive. That is an issue that should be determined in the context of the validity of the Buy/Sell Notice and the purported acquisition of the JBRO Investment shares. [ 135 ] The JBRO group applies for release of dividends that have been declared with respect to Dynasty Power and held in trust.

I grant that relief without prejudice to their claim with respect to the Buy/Sell transaction, including their claim to a rescission of the transaction. [ 136 ] The JBRO group also applies for an order of interim costs. Given the directions I have made with respect to release of dividends and payment of solicitor-client costs, there is no basis to make such an order. D. Procedural Order and Valuation [ 137 ] The JBRD group asks that the Court consider granting a procedural order directing matters that were not resolved in this application to further hearings.

These matters include the validity of the Buy/Sell Notice, the appropriate date of valuation of the JBRO group holdings in the Dynasty group, the adequacy of disclosure made or to be made under the order of Master Farrington and the injunction order and the allegations of conflict with respect to Ms. Bullas. [ 138 ] In addition, the Dynasty Group has brought, or wishes to bring, applications with respect to the

interpretation of the Property USA, and various applications with respect to a timely procedure to resolve the buy-out of the JBRO group’s holdings. [ 139 ] The parties may apply for a date for a case management application to identify and discuss the process of resolution of the outstanding issues, including issues relating to Ms. Bullas. Dated at Calgary, Alberta this 14 th day of June, 2021. B.E. Romaine J.C.Q.B.A. Appearances: Peter Osadetz For the Plaintiffs/Applicants Peter R.S. Leveque for the Defendants/Respondents Lillian Pan, Q.C. For the Defendants/Respondents Ryan Phillips For Michelle Bullas and AIM Law Group