2016 NLCA 69, 2016 NLCA 69

Levinia Fillatre, as Executrix of the Estate of Kerry Fillatre and as the sole beneficiary to the Estate of the late Kerry Fillatre and in her own Personal Right (intended appellant) v. Keith Fillatre (intended first respondent), Helen Fillatre (intended second respondent), Ernest Fillatre (intended third respondent), Max Fillatre Jr. (intended fourth respondent), and Fillatre’s Funeral Home Limited (intended fifth respondent) (15/22) Indexed As: Fillatre v. Fillatre 2016 NLCA 69 1 C.A.N.L.R. 314 Court of Appeal of Newfoundland and Labrador Green C.J.N.L., Barry and Hoegg JJ.A. November 29, 2016

Summary: The appellant, Levinia Fillatre appealed an order of the Supreme Court Trial Division which purported to determine “a point of law or fact, or both” before trial pursuant to Rule 38 of the Rules of the Supreme Court, 1986 . In 2015, the respondents applied under the rule to have the court determine that one allegation in Levinia Fillatre’s suit was time-barred. Ms. Fillatre alleged that she was the victim of shareholder oppression by Fillatre’s Funeral Home Limited. One of the oppressive acts which Ms.

Fillatre alleged the respondents committed was that they changed the shareholding structure of Fillatre’s Funeral Homes Ltd. to effect an estate freeze in 1988 involving the shares of another shareholder without Ms. Fillatre’s consent and involvement. Many of the facts were disputed. The judge found in favour of the respondents and found the allegation was time-barred. Levinia Fillatre appealed. Held: Appeal allowed, matter remitted to the Supreme Court Trial Division for trial.

Hoegg J.A. (Green C.J.N.L. and Barry J.A. concurring): Although the Rule 38 application was an interlocutory application, it brought the proceeding respecting the estate freeze allegation in Ms. Fillatre’s suit to an end. Accordingly, the “nature and effect” of the Judge’s order respecting the estate freeze was final. Leave to appeal was not required. Even if leave were required at the time the appeal was filed, the new Court of Appeal Rules, NLR 38/16 have since come into force and apply to the appeal by virtue of rule 60 . The new rules have eliminated the requirement for leave to appeal.

The Judge’s decision was a discretionary one. Appeals of discretionary decisions can only succeed if the Judge “exceeded his or her jurisdiction, failed to apply or misapplied an applicable principle, made a palpable and overriding error in his or her appreciation of the facts, or the failure (of an appellate court) to interfere would cause a manifest injustice. Parties are not entitled as of right to carve out discrete issues from a proceeding and have them determined separately.

The question that a Judge must ask him or herself when confronted with a Rule 38 application is whether it is appropriate, in the circumstances, that the issue be determined in that way, and if so, what directions ought to be given and procedures adopted to ensure the matter is properly dealt with. The applicant in a Rule 38 application bears the burden of establishing that the issue he or she seeks to have determined is appropriate for preliminary determination and providing the court with a sufficient evidentiary record on which the court can make the

requested determination. There must be a discernable advantage to the litigation in order to justify determining a within issue prior to the overall trial. The Judgeerred in reasoning that some apparent advantage to the litigation process would be obtained by preliminary determination of the estatefreeze allegation in Ms. Fillatre’s claim. Deciding the estate freeze issue in advance of trial would make next to no difference to theefficiency of the litigation; it would not make it simpler.

Evidence respecting that allegation may still be relevant and admissible at trialin relation to liability respecting the balance of Ms. Fillatre’s oppression claim. The discretion to determine a point of law or fact in advance of trial should only be exercised if the evidentiary record respecting thedispute is sufficient that is, if the evidentiary background is established by an agreed statement of facts or the facts underlying the disputeare a matter of public record. The evidentiary record before the court was insufficient to enable the Judge to decide the estate freezeissue.

In this case there was no agreed statement of facts. Neither were the facts a matter of public record. In fact there was strongdisagreement in argument respecting when and what Ms. Fillatre knew about the estate freeze. Discoverability of her claim relating tothe estate freeze was a live issue and not straightforward, yet necessary in order to decide the limitations issue. The Judge’sdetermination that Ms. Fillatre discovered her claim within the applicable time limit was a finding of fact unsupported by any evidenceand based on his rejection of Ms. Fillatre’s evidence as not credible.

He therefore made a palpable and overriding error in hisappreciation of the facts affecting the limitations issue. There are exceptions to the general principle that agreed facts are necessary on a Rule 38 application. Exceptions arise, however, onlywhen the issues of fact and law in the case are not “complex and intermingled” or resolution of facts does not depend on credibility ofwitnesses. The acts of oppression alleged by Ms. Fillatre are many, varied, and said to have occurred over a significantly long period oftime. Several are ongoing, and none have been resolved.

The estate freeze allegation is but one of the early allegations in a claim ofgeneral oppression. This case involved deciding between different approaches to the application of limitations law to an oppression claimwhich itself involved intermingled allegations. Such different approaches further complicate and intermingle the preliminary issue with theremaining issues to be decided, taking the matter well out of the category of “exceptional cases” which can be decided without an agreedstatement of facts. The Judge erred in exercising his discretion under Rule 38 to separate the estate freeze allegation from Ms.

Fillatre’s statement of claimand decide that it was time-barred. His decision to do so ran afoul of several Rule 38 principles. The appeal was allowed and the matterremitted for trial. Cases cited: S.M. v. J.B., 2016 NLCA 59 Atlantic Lottery Corporation Inc. – Societé de Loteries de l’Atlantique v. Babstock, 2016 NLCA 64 United Food and Commercial Workers Fishermen’s Union (Local 1252) v. Cashin (1994), (NL CA), 124 Nfld. &P.E.I.R. 201 (Nfld. C.A.) Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld. C.A.) Miawpukek Band v.

Ind-Rec Highway Services Ltd.(1999), (NL CA), 172 Nfld. & P.E.IR. 245 (Nfld. C.A.) Szeto v. Dwyer, 2010 NLCA 36, 297 Nfld. & P.E.I.R. 311 Walker et al v. Betts et al, 2006 BCSC 128, 15 B.L.R. (4th) 114 Cholakis v. Cholakis et al, 2006 MBQB 91, 203 Man. R. (2d) 1 Waxman v. Waxman (2004), (ON CA), 186 O.A.C. 201 (Ont. C.A.) Jaska v. Jaska (1996), (MB CA), 141 D.L.R. (4th) 385 (Man. C.A.) Henley et al. v. Torbay Estates Ltd. et al (1993), (NL SC), 109 Nfld. & P.E.I.R. 285 (Nfld. T.D.) Walsh v. TRA Company Limited, 2007 NLCA 50, 268 Nfld. & P.E.I.R. 111 Drummond-Jackson v.

British Medical Assn., [1970] A.U.E.R. 1094 (Eng. C.A.) Dyson v. Attorney General (1910), [1911] 1. K.B. 410 (Eng. C.A.)

Druken v. Fewer (R.G.) and Associates Inc. (1996), (NL SC), 138 Nfld. & P.E.I.R. 165 (Nfld. T.D.) Brake-Patten v. Gallant, 2012 NLCA 23, 321 Nfld. & P.E.I.R. 77 Faryna v. Chorny, (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.) Counsel: Genevieve M. Dawson Q.C., for the intended appellant; Robert B. Andrews Q.C., for the intended first and fifth respondents; Robert M. Matthews Q.C., for the intended second, third and fourth respondents. This appeal was heard on June 9, 2016 before Green C.J.N.L., Barry and Hoegg JJ.A.

The following judgment was delivered on November 29, 2016 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: Introduction [1] This appeal concerns the appropriateness of a Judge deciding a legal issue respecting one allegation in a plaintiff’s statement ofclaim in advance of trial. [2] Rule 38 of the Rules of the Supreme Court, 1986 permits “a point of law or fact, or both” to be determined prior to trial.

In thiscase the Respondents applied under the rule to have the court determine that one allegation in Levinia Fillatre’s suit based on shareholderoppression was time-barred. The particular allegation related to an estate freeze which occurred in 1988. No agreed statement of factswas filed in support of the application and there was no agreement respecting when Ms. Fillatre discovered that she may have a claimbased on the estate freeze.

BACKGROUND [3] In 1986, Levinia Fillatre was bequeathed shares in Fillatre’s Funeral Home Limited, a family owned funeral service corporationin which her late husband Kerry was a shareholder. Ms. Fillatre alleges that since then, she has been the victim of shareholderoppression. [4] On February 8, 2002, Ms. Fillatre applied to the Supreme Court for disclosure of corporate information, pleading that it was theobligation of the corporation under the Corporations Act, R.S.N.L. 1990, c. C-36 to provide it to her. Information was subsequentlyprovided.

In 2010, the Supreme Court permitted her to convert her February 8, 2002 application, as amended, into a statement of claimbearing the February 8, 2002 filing date without prejudice to the Respondents’ right to defend it on the basis of limitations of action. [5] The oppressive acts which Ms.

Fillatre alleges in her statement of claim comprise allegations that the Respondents (1) changedthe shareholding structure of Fillatre’s Funeral Homes Ltd. to effect an estate freeze involving the shares of Helen Fillatre without Ms.Fillatre’s consent and involvement, (2) diverted and misused corporate funds for personal use, unjustified compensation and interest-freeloans, (3) improperly used clients’ trust monies, (4) failed to provide Ms.

Fillatre with information relating to the financial affairs of thecorporation including financial statements, accounting records and/or income tax statements, (5) failed to notify her of annual meetings,and (6) failed to obtain her consent when required for transfers and/or amalgamations of the corporation and related companies. [6] The estate freeze was created so that Helen Fillatre, the widow of Maxwell Fillatre Sr. and the mother of the late Kerry Fillatre,Ernest Fillatre and Maxwell Fillatre Jr., could exchange her common voting shares for non- voting preferred shares, a move which permitted her to pass on her interest in the corporation to certain of her children in a way thatenabled her to avoid paying capital gains tax and the corporation having to avoid raising capital to buy her out. [7] The record before the Judge disclosed that in March 1988, Ms.

Levinia Fillatre was approached by counsel for the Corporationand asked for her written consent to proposed changes to the shareholdings structure of the Corporation which would result in thedistribution of Helen Fillatre’s 15,753 shares to Keith, Ernest and Max Fillatre Jr. Ms. Fillatre was also asked to waive any right she hadto shares being issued as a result of the proposal, and to consent to acts of the Corporation’s Board of Directors respecting salaries andfees and to approve a resolution that an auditor not be appointed respecting the Corporation’s financial affairs. Ms.

Fillatre did not agreeto any of the requests, or execute any of the proposed consents and waivers. After she conveyed her refusals to the Corporation’scounsel, she had no further communication with them.

[8] The proposed changes to the shareholding structure, now known as the estate freeze, ultimately purportedly occurred in 1988without Ms. Fillatre’s consent or involvement. As a result, 6,632 of Helen Fillatre’s 15,753 shares were distributed to Keith Fillatre andher remaining 9,121 shares were distributed equally to Max Fillatre Jr. and Ernest Fillatre. No shares were distributed to Levinia Fillatre. The Rule 38 Application [9] In 2015, the Respondents applied to the Court under Rule 38 for a determination that the estate freeze allegation in Ms. Fillatre’sclaim was time-barred.

The application was heard on the basis of 2002 affidavit evidence from Keith, Helen, Ernest and Max Jr.Fillatre, 2013 affidavit evidence and cross-examination of Keith Fillatre, and discovery and affidavit evidence and cross-examination ofLevinia Fillatre.

The Judge determined that he could separate the estate freeze allegation from the other allegations of oppression in Ms.Fillatre’s statement of claim because (1) there was an apparent advantage to determining, in advance of trial, whether the estate freezeallegation was time-barred, (2) there was an ample evidentiary record on which he could decide the limitations issue respecting it(paragraph 18), and (3) the estate freeze allegation was not inter-mingled with the other allegations of oppression (paragraph 19). TheJudge went on to determine that the estate freeze allegation was time-barred.

He also gave directions to the parties respecting the futureconduct of the remaining claim. The Appeal [10] Ms. Fillatre appeals. She argues that it was not appropriate for the Judge to determine the limitations issue under Rule 38 in theabsence of an agreed statement of facts, particularly in the face of disagreement respecting the discoverability of her claim related to theestate freeze, and also because the evidentiary record on which the Judge decided the limitations issue was incomplete and insufficient.

She also argues that given the ongoing and continuous nature of her oppression claim, it was not appropriate for the Judge to decide onlyone allegation in her statement of claim in advance of trial. ISSUES [11] Several issues arise: 1) Does Ms. Fillatre require leave to appeal, and if so, should leave be granted? 2) Did the Judge err in determining that he could separate the estate freeze allegation from Ms. Fillatre’s claim and determine whetherit was time-barred in advance of trial? 3) Did the Judge err in ruling that the estate freeze allegation in Ms. Fillatre’s claim was time-barred?

ANALYSIS Leave to Appeal [12] On October 17, 2016, new Court of Appeal Civil Practice Rules came into force. The new rules permit interlocutory appeals toproceed without leave (S.M. v. J.B., 2016 NLCA 59, para. 4). This case had been argued and the decision was under reserve when thenew rules came into force. In such cases, Rule 60 will be engaged, and the Court may direct an appropriate procedure (Atlantic LotteryCorporation Inc. – Societé de Loteries de l’Atlantique v. Babstock, 2016 NLCA 64, para. 11).

However, in this case it is not necessary toconsider the effect of the new rules because, as will be apparent from what follows, Ms. Fillatre did not require leave in any event [13] The Order under appeal resulted from the Respondents’ interlocutory application under Rule 38. Interlocutory applications oftenresult in interlocutory orders, although that is not always the case. Interlocutory applications can also result in orders that finally disposeof an issue or a claim. In this case, the question is whether the Judge’s decision that the estate freeze allegation in Ms.

Fillatre’sstatement of claim was time-barred is an interlocutory or a final order. [14] In United Food and Commercial Workers Fishermen’s Union (Local 1252) v. Cashin (1994), (NL CA), 124Nfld. & P.E.I.R. 201 (Nfld. C.A.), Marshall J.A. set out the test for determining whether an order resulting from an interlocutoryapplication is interlocutory or final: [31] … the issue whether an order or judgment is to be treated as interlocutory or final depends upon the nature and effect of thedisposition.

If it brought the proceedings at first instance to an end, regardless of whether it actually disposes of the rights between theparties, it is final. However, if the disposition’s effect is such that the real matter in dispute between the parties remains to be determinedin the very proceeding from which it issued, the disposition is interlocutory. (See also Langor v. Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld. C.A.), at paras. 12-13.) [15] The Judge’s ruling that the estate freeze allegation in Ms. Fillatre’s claim is time-barred prevents Ms.

Fillatre from pursuing aclaim for damages or any other remedy respecting the estate freeze. While the Judge’s ruling did not dispose of all of the rights betweenMs. Fillatre and the Respondents, it brought the proceeding respecting the estate freeze allegation in Ms. Fillatre’s suit to an end. Accordingly, the “nature and effect” of the Judge’s order respecting the estate freeze was final. Given this finality, I am of the view thatMs. Fillatre’s appeal cannot be characterized as interlocutory, and that she does not require leave to appeal.

There is therefore no need forher to establish grounds for leave to appeal under rule 57.02(4). Standard of Review [16] The Judge’s decision to decide the limitations issue respecting the estate freeze as a preliminary point of law under Rule 38 was adiscretionary one (Miawpukek Band v. Ind-Rec Highway Services Ltd.(1999), (NL CA), 172 Nfld. & P.E.IR. 245, atpara. 11).

Appeals of discretionary decisions can only succeed if the Judge “exceeded his or her jurisdiction, failed to apply ormisapplied an applicable principle, made a palpable and overriding error in his or her appreciation of the facts, or the failure (of an

appellate court) to interfere would cause a manifest injustice (Langor v. Spurrell, at para. 32 and Szeto v. Dwyer, 2010 NLCA 36, 297Nfld. & P.E.I.R. 311, at paras. 25-26). Did the Judge err in determining that he could decide whether the estate freeze allegation was time-barred prior to trial? The Law [17] The pertinent part of Rule 38 reads: 38.01.

(1) The Court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, (

a) determine any relevant question or issue of law or fact, or both; ... (

d) give directions as to the procedure to govern the future course of any proceeding, which directions shall govern the proceedingnotwithstanding the provision of any rule to the contrary; … [18] The principles governing use of the rule to determine questions of law or fact prior to trial were set out by Green J.A. (as he thenwas) in Ind-Rec.

At paragraph 11, Justice Green explained that parties are not entitled as of right to carve out discrete issues from aproceeding and have them determined separately because the general litigation principle is “that all issues related to a particularproceeding should be disposed of at one time”.

He stated the question that a Judge must ask him or herself when confronted with a Rule38 application is “whether it is appropriate, in the circumstances, that the issue be determined in that way, and if so, what directionsought to be given and procedures adopted to ensure the matter is properly dealt with” (at paragraph 12). [19] Justice Green set out seven general principles to govern use of the rule to decide litigation issues preliminary to trial.

The firstfour principles are relevant to this matter and bear repeating: [14] First, to justify fragmentation of the determination of the issues, there should be some discernible advantage to proceeding in thatway rather than dealing with them as part of an overall trial or hearing. The most obvious example would be if the determination of apreliminary issue will substantially dispose of the case (Henley et al. v. Torbay Estates Ltd. et al. (1993), (NL SC),109 Nfld. & P.E.I.R. 285; (NB KB), 343 A.P.R. 285 (Nfld. T.D.), thereby enabling the court to enter a judgmentpursuant to rule 38.01(2) (See Etheridge v.

Witless Bay (Town) (1997), (NL SC), 155 Nfld. & P.E.I.R. 346; 481A.P.R. 346 (Nfld. T.D.). Even if ordering the hearing of a preliminary issue would not dispose of all of the issues in the litigation,however, it still may be appropriate to have a preliminary determination of one or more discrete issues if those issues are “capable ofbeing compartmentalized and dealt with separately” (Bank of Montreal v. Mercer, at para [6]) and doing so would simplify the remainderof the trial, thereby saving time or costs, in the sense of their being an overall net gain to the litigation process (Druken v.

Fewer (R.G.)and Associates Inc. (1996), (NL SC), 138 Nfld. & P.E.I.R. 165; 431 A.P.R. 165 (Nfld. T.D.); Non-MarineUnderwriters, Lloyd’s London v. Menchions (1996), (NL SC), 149 Nfld. & P.E.I.R. 61; 467 A.P.R. 61 (Nfld. T.D.). [15] Secondly, the court must be satisfied that a hearing conducted pursuant to rule 38 is a “suitable vehicle” to determine the questionsthat have been posed (Dawson v. Cabot (John) (1997) 500 Anniversary Corp. et al. (1998), (NL CA), 169 Nfld. &P.E.I.R. 50; 521 A.P.R. 50 (Nfld. C.A.), per Gushue, J.A., at para. [19]).

Central to this determination is whether a sufficient evidentiaryrecord can be provided.

This is equally important where the questions posed are ones of law, since legal questions are not to be answeredin the abstract, but against the factual background of the particular dispute. [16] Thirdly, where the issue for determination is a point of law, the discretion to determine the issue as a preliminary matter shouldgenerally be exercised only if the evidentiary background can be established by an agreed statement of facts or if the facts underlying theresolution of the legal issue are a matter of public record. (See, Leyte; Henley; Druken.) [17] Fourthly, as an exception to the third principle, the court may, in exceptional cases, receive evidence that may be necessary toprovide a background for the resolution of the legal issue, but that would only be appropriate where the issues of fact and law on thepreliminary issue and on the remaining issues are not “complex and intermingled” (Human Rights Commission (Nfld.) v.

Newfoundland(Minister of Health) et al. (1998), (NL CA), 164 Nfld. & P.E.I.R. 251; 507 A.P.R. 251 (Nfld. C.A.), per Cameron,J.A., at para. [21]); or the facts are not in dispute and their resolution does not depend on determination of the credibility of witnesses(Druken; Henley).

The rationale for this limitation is that if, in order to resolve the legal question the court has to resolve the evidentiaryissues as well, it will usually be just as well to hold a trial. [20] It is worth noting that the applicant in a Rule 38 application bears the burdens of establishing that the issue he or she seeks tohave determined is appropriate for preliminary determination and providing the court with a sufficient evidentiary record on which thecourt can make the requested determination. There is no burden on a respondent to establish an evidentiary record on a Rule 38application.

This is in contrast to the

summary trial procedure under Rule 17A, where a respondent is required to put his or her best footforward at the hearing. This difference in burdens explains, in some measure, why a Rule 38 application is expected, as a general rule, toproceed on the basis of an agreed statement of facts. The Judge’s Reasoning [21] The Judge decided that he could determine whether the estate freeze allegation was time-barred under Rule 38 because there wasan apparent advantage to deciding the issue before trial.

He reasoned that it made sense to do so because if the estate freeze issue weretime-barred, the damages workup for trial would be reduced, thereby simplifying the trial (at paragraphs 17 and 20). He found that therewas “an ample evidentiary record” on which he could decide the limitations issue, and there was no additional relevant evidence thatcould be put forward at the full trial (at paragraph 18). The Judge also ruled that the issue was appropriate for preliminary determination

because the estate freeze allegation in Ms. Fillatre’s claim was “not intermingled with other issues of the claim” (at paragraph 19). Apparent Advantage [ 22 ] Ind-Rec directs that there must be a discernable advantage to the litigation in order to justify determining a within issue prior to the overall trial (at paragraph 14). Ms. Fillatre argues that there was no discernable advantage to doing so.

She maintains that the valuation of her shares in the Corporation had to be determined on a per share basis regardless of whether she would be awarded additional shares as damages resulting from the estate freeze, and says that once the per share value is resolved, the value of her shareholdings can be easily determined. [ 23 ] An estate freeze alters the shareholdings in a corporation. Depending on a corporation’s articles and relevant corporate law, all shareholders’ consents may be required, particularly if issuing new shares might dilute their interests. Ms.

Fillatre owned (and still owns) shares in the Corporation independent of any she might be awarded as a result of the estate freeze. The value of her shares on a per share basis has to be determined at trial in any event, and it would therefore be simple arithmetic to calculate the value of any additional shares which could be awarded to her as a result of the estate freeze. Accordingly, deciding the estate freeze issue in advance of trial would make next to no difference to the efficiency of the litigation; it would not make it simpler. I also observe that excising the estate freeze allegation from Ms.

Fillatre’s claim for the purposes of liability and damages does not mean that the evidence respecting that allegation would not be relevant and admissible at trial in relation to liability respecting the balance of her oppression claim. [ 24 ] Accordingly, the Judge erred in reasoning that some apparent advantage to the litigation process would be obtained by preliminary determination of the estate freeze allegation in Ms. Fillatre’s claim. He therefore misapplied an applicable principle relative to the determination of the appropriateness of employing a Rule 38 preliminary procedure.

Is Preliminary Determination Suitable? [ 25 ] The discretion to determine a point of law or fact in advance of trial should only be exercised if the evidentiary record respecting the dispute is sufficient to enable the judge to decide the issue ( Ind-Rec , at paragraph 15).

As Justice Green put it in Ind-Rec, legal issues are not to be answered in the abstract; a full factual background is required. [ 26 ] Central to “suitability” is the general rule that “the discretion to determine a point of law as a preliminary matter should only be exercised if the evidentiary background is established by an agreed statement of facts or the facts underlying the dispute are a matter of public record” ( Ind-Rec , at paragraphs 15-16).

If there is no agreed statement of facts, it is generally more appropriate to wait until trial where the factual findings necessary to decide the issue can be made in the context of all the evidence. [ 27 ] Ms. Fillatre says that the evidentiary record before the court was insufficient to enable the Judge to decide the estate freeze issue. She argues that there are several key witnesses who could provide relevant evidence which was not tendered on the application and that she has every right to tender their evidence at trial.

She maintains that the former lawyer for the Corporation may be able to assist by testifying as to what was discussed when he proposed the shareholding restructuring and requested her to sign the consents and waivers, and that other professionals whom she consulted after being asked to consent to the proposals, as well as the Corporation’s accountant, would also have helpful evidence. Ms.

Fillatre submits that evidence from these people might be able to clarify details that she did not specifically recall about what and when she knew about the estate freeze. [ 28 ] In this case there was no agreed statement of facts. Neither were the facts a matter of public record. In fact there was strong disagreement in argument respecting when and what Ms. Fillatre knew about the estate freeze. Discoverability of her claim relating to the estate freeze was a live issue and not straightforward, yet necessary in order to decide the limitations issue. [ 29 ] The evidence respecting what and when Ms.

Fillatre knew about the estate freeze came from Ms. Fillatre alone. The 2002 affidavit evidence did not address the issue, and Keith Fillatre’s affidavit evidence and cross-examination at the hearing did not assist. He denied that he had a role in planning or carrying out the estate freeze, and although he admitted his signature appeared on the request for Ms. Fillatre to waive her rights to any future shares, he said that he was only following instructions from his mother, her accountant and the Corporation’s lawyer. He offered no evidence suggesting that Ms.

Fillatre knew the estate freeze had taken place. [ 30 ] Simply put, Ms. Fillatre’s uncontradicted evidence was that although she had been approached in 1987 or 1988 by the Corporation’s legal counsel to consent to changes in the shareholding structure and waive any right to additional shares, she did not know that the estate freeze had taken place until 2002 when she was provided with information she had requested in her February 2002 originating application to the court.

Because her consent to the proposed shareholding changes appeared to be needed but was not given, she did not know that the changes had occurred. [ 31 ] The Judge remarked that Ms. Fillatre’s evidence respecting her knowledge of the estate freeze “especially relating to her discussion with the lawyers was not clear” (at paragraph 19). This acknowledgement alone raises concerns about the sufficiency of the record on which to decide discoverability.

In any event, the Judge rejected her testimony and found that she knew or ought to have known that the estate freeze had occurred and that she had a potential claim respecting it. He did not say exactly when Ms. Fillatre knew she had a claim, but the inference from his decision is that it was well within six years following when the estate freeze occurred. The Judge’s determination that Ms. Fillatre discovered her claim within this time period was a finding of fact unsupported by any evidence and based on his rejection of Ms. Fillatre’s evidence as not credible.

He therefore made a palpable and overriding error in his appreciation of the facts affecting the limitations issue. Complex and Intermingled [ 32 ] There are exceptions to the general principle that agreed facts are necessary on a Rule 38 application. Exceptions arise, however, only when the issues of fact and law in the case are not “complex and intermingled” or resolution of facts does not depend on credibility of witnesses ( Ind-Rec , at paragraph 17). [ 33 ] Determining when a claim has been discovered for the purposes of a limitations defence can be challenging in any case, but it is

particularly challenging when the claim is based on shareholder oppression. An oppression claim can rest on allegations of a single actor type of act or several acts or types of acts, and the acts can be continuing and ongoing. (See for example Walker et al v. Betts et al,2006 BCSC 128, 15 B.L.R. (4th) 114, at para. 86; Cholakis v. Cholakis et al, 2006 MBQB 91, 203 Man. R. (2d) 1, at para. 123.) Assuch, its nature allows for setting out a series of allegations which together establish a pattern of conduct sufficient to constituteoppression. The acts of oppression alleged by Ms.

Fillatre are many, varied, and said to have occurred over a significantly long period oftime. Several are ongoing, and none have been resolved. The estate freeze allegation is but one of the early allegations in a claim ofgeneral oppression. [34] Because the estate freeze is now known to have been completed sometime in 1988, the estate freeze allegation could be viewedas discrete, especially when contrasted with some of the other allegations, like the ongoing failures to provide Ms. Fillatre with annualfinancial statements or notices of shareholders meetings.

However, the estate freeze allegation is no more discrete an allegation thansome of the other acts alleged to constitute oppression, like the “questionable, non-arm’s length transfers between the corporation andrelated companies” and “failures to seek shareholder approval for [the] amalgamation of related companies”. Accordingly, the variousallegations in Ms. Fillatre’s claim can easily be said to be intermingled. [35] Oppression is usually considered to be ongoing until remedied. This has resulted in different approaches to the application oflimitations law to oppression claims. In Waxman v.

Waxman (2004), (ON CA), 186 O.A.C. 201 (Ont. C.A.), theOntario Court of Appeal upheld the exercise of a trial judge’s discretion to extend an applicable limitation period to cover allegationswhich fell outside of it because the cause of action was based on a continuing course of conduct. Comments in Waxman discuss theongoing nature of oppression claims and how various allegations of oppression in a claim are interrelated and collectively prove whetheroppression is established. On the other hand, in Jaska v. Jaska (1996), (MB CA), 141 D.L.R. (4th) 385 (Man.

C.A.),the Manitoba Court of Appeal ruled that a limitation period applied to conduct falling outside of it even in a claim of continued andongoing oppression. The application of limitations law on claims of oppression has not been adjudicated in this jurisdiction. I wouldpoint out, however, that it is the claim of general oppression which must be found to be statute barred if the Respondents are to succeed,not evidence of certain individual events like the estate freeze that provide the underlying base for conclusions on the oppression issue. [36] Two cases from this jurisdiction assist. In Henley et al. v.

Torbay Estates Ltd. et al (1993), (NL SC), 109Nfld. & P.E.I.R. 285, the Supreme Court Trial Division was asked to decide a legal issue prior to trial under Rule 38. In declining to doso, Wells J. said “where there is obscurity of either fact or law it is wise to proceed to trial” (at paragraph 9). This Court’s decision inWalsh v. TRA Company Limited, 2007 NLCA 50, 268 Nfld. & P.E.I.R. 111 also touches on the issue. In Walsh, an applications judgestruck the plaintiff’s statement of claim under Rule 14.24 on the basis that the pleadings did not disclose a maintainable cause of action.

This Court reversed, quoting with approval the words of Lord Pearson in Drummond-Jackson v. British Medical Assn., [1970] A.U.E.R.1094 (Eng. C.A.), who said “the plaintiff should not be driven from the judgment seat at this very early stage unless it is quite plain thathis alleged cause of action has no chance of success”, and also the words of Lord Justice Fletcher Moulton in Dyson v. Attorney General(1910), [1911] 1. K.B. 410 (Eng.

C.A.) who said “differences of law, just as differences of fact, are normally to be decided by trial afterhearing in Court, and not to be refused a hearing in Court by an order of the judge in chambers”. [37] By analogy, this case involved deciding between different approaches to the application of limitations law to an oppression claimwhich itself involved intermingled allegations.

Such different approaches further complicate and intermingle the preliminary issue withthe remaining issues to be decided, taking the matter well out of the category of “exceptional cases” which can be decided without anagreed statement of facts. [38] Equally important is that the Judge determined when Ms. Fillatre discovered she had a claim relating to the estate freeze byevaluating the credibility of her evidence in isolation from other would-be trial evidence. Moreover, he rejected her evidence in theabsence of any evidence contradicting her testimony.

Such credibility assessments should not be carried out on Rule 38 applications(Henley and Druken v. Fewer (R.G.) and Associates Inc. (1996), (NL SC), 138 Nfld. & P.E.I.R. 165). Assessmentsof an interested witness’ credibility respecting one of many issues in a trial ought to be made in the context of all of the trial evidence(Brake-Patten v. Gallant, 2012 NLCA 23, 321 Nfld. & P.E.I.R. 77, at para. 92 and Faryna v. Chorny, (BC CA), [1952]2 D.L.R. 354 (B.C.C.A.), at para. 11). In this case the evidence of the other witnesses as well as Ms.

Fillatre’s and Keith Fillatre’sevidence respecting other allegations of oppression could well bear on the credibility of Ms. Fillatre’s evidence respecting when sheknew she had a claim relating to the estate freeze. In these circumstances, it was inappropriate to make a final determination on Ms.Fillatre’s “uncertain” evidence and use that determination to decide the limitations issue. Conclusion [39] In the result, the Judge erred in exercising his discretion under Rule 38 to separate the estate freeze allegation from Ms. Fillatre’sstatement of claim and decide that it was time-barred.

His decision to do so ran afoul of several Rule 38 principles as shown above. [40] Because the Judge’s decision that he could separate the estate freeze allegation from Ms. Fillatre’s claim and decide that it wastime-barred under Rule 38 has been reversed, it is not necessary for this Court to determine the limitations issue. DISPOSITION [41] In the result, I would allow Ms. Fillatre’s appeal. I would vacate the Judge’s order that the estate freeze allegation in Ms.Fillatre’s claim is time-barred, reinstate the estate freeze allegation in Ms.

Fillatre’s Statement of Claim, and remit the matter to SupremeCourt Trial Division for trial. [42] I would order that Ms. Fillatre have her costs on Column 3 of the Scale of Costs in this Court and the court below. Appeal allowed.