KEN NABER APPLICANT - v. -, 2023 SKKB 100

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 100 Date: 20 23 05 12 Docket: KBG-RG-00852-2023 Judicial Centre: Regina BETWEEN: KEN NABER APPLICANT - and - LORRANE NABER and NABER SEEDS LTD. RESPONDENTS - and - COLE BLAIKIE THIRD-PARTY RESPONDENT CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released May 25, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: Kevin C. Mellor and Sharon R. Fox for the applicant William A. Selnes, K.C. and Brandi M. Rintoul for the respondents Cole Blaikie no one appearing JUDGMENT NORBECK J.

Ma y 12, 2023 [ 1 ] The applicant, Ken Naber [Ken], filed an originating application on April 3, 2023, in the nature of oppression seeking relief from the respondents, Lorraine Naber [Lorraine] and Naber Seeds Ltd. collectively, [respondents] in respect of the use of lands owned by Naber Seeds Ltd. [Naber Seeds] and decision making for and in respect of Naber Seeds, among other things. Ken requested to proceed on the injunctive relief portion of the application and adjourn the remainder to a later date.

The respondents agreed to proceed on the injunctive relief but raised concerns that Ken was seeking relief beyond the scope of the injunction application. Both parties agreed that the matter ought to be case managed pursuant to General Application Practice Directive # 9, following issuance of the within decision. [ 2 ] Ken alleges that he has been oppressed by Lorraine, in that she has carried on or conducted the business of Naber Seeds in a manner that unfairly disregards his interests.

The injunctive relief sought is specific to a lease of all of the land owned by Naber Seeds for the 2023 farming season, that is used in the overall farming operations of Naber Seeds and Naber Holdings Ltd. [Naber Holdings], without consulting Ken or obtaining his consent. [ 3 ] I acknowledge counsel for their well-presented and ably argued presentations. I appreciate the assistance they provided. [ 4 ] For the reasons that follow, the application is allowed, and the injunction is granted. Background [ 5 ] Ken and Lorraine were married on July 27, 1963 and have been married for 59 years.

Ken is 83 years old while Lorraine is 80 years old. They have two adult children together, Leeann Fannon and Todd Naber. [ 6 ] Ken was born and raised in Melfort, Saskatchewan and has been a farmer for his entire life. He farmed as a sole proprietor until January 1974 and incorporated Naber Seeds on January 11, 1974. At that time, Ken was the majority shareholder, director and officer of Naber Seeds.

[ 7 ] In September 1999, following the receipt of tax advice, Ken started another company, Naber Holdings. Lorraine became the majority shareholder and a director of Naber Seeds while Ken became a minority shareholder. Ken became the majority shareholder and director of the new company, Naber Holdings. [ 8 ] Naber Holdings owns eight quarter sections of land while Naber Seeds owns nine quarter sections of land. [ 9 ] In September 2022, Lorraine, as majority shareholder of Naber Seeds, removed Ken as a director of Naber Seeds.

Ken states that this was done without his knowledge, the meeting dates and location had changed and on short notice he could not attend in the middle of harvest.

Lorraine states that Ken was given appropriate notice of the meeting where he was removed as director of Naber Seeds, but chose not to attend. [ 10 ] Ken has applied to the court, pursuant to The Business Corporations Act, 2021 , SS 2021, c 6 [ Act ], for an order pursuant to ss. 18 - 3 and 18 - 4 , claiming that he has been oppressed by the respondents and specifically, Lorraine. [ 11 ] Ken suggests that he has been the mind and management of Naber Seeds and Naber Holdings farming operation since each company’s inception.

He would make most of the farming decisions including capital investments, crop selection and growing, selection of inputs for growing the crop, marketing of the grain and working the farm operation. The farming operation has existed as a closely knit, family structure for over 60 years. [ 12 ] Lorraine suggests that while Ken has farmed for over 60 years, they worked together on the farm cooperating fully and making farming decisions together. [ 13 ] On August 19, 2019, Lorraine filed a petition for divorce from Ken.

The family law file was initiated in Saskatoon, Saskatchewan and has been given file number FLD-SA-00267-2019 [Family Matter]. Counsel for both parties advised that a pre-trial conference in the Family Matter may occur in late June 2023 where a number of the issues regarding family property (including Naber Seeds and Naber Holdings) will be discussed and potentially resolved. [ 14 ] While I am not aware of all of the details of the Family Matter between Lorraine and Ken, Ken has provided some background in his affidavit filed April 4, 2023.

Ken suggests that the motivation for the family law proceedings is mostly financial on Lorraine’s behalf, and that little has changed between them and their living situation since she issues the petition. [ 15 ] In 2021, Lorraine served Ken with an application to sell two quarter sections of land owned by Naber Seeds. Ken retained a family lawyer to represent him, and his lawyer requested an adjournment of the application to allow Ken an opportunity to respond to Lorraine’s application.

After some back and forth between counsel and the court, the matter was eventually adjourned sine die , returnable on 14 days’ notice. In a fiat issued by Turcotte J. dated June 11, 2021, the matter was adjourned on conditions: (

a) Neither party shall gift, transfer or encumber their family property; and neither party shall gift, transfer, or encumber their corporate property other than in the ordinary course of business of the corporations, Naber Seeds Ltd. or Naber Holdings Ltd. without further court order or written agreement or consent of the parties thereto. (

b) The respondent shall not permit any family member other than Ms. Naber or any third parties from attending at or in the family home on the parties’ quarter

section farm site or within a 100 foot perimeter of the family without the consent or the petitioner or further court order. [ 16 ] While Turcotte J.’s fiat was without prejudice, it was intended to be a staying order. The fiat has not been appealed and the application to sell the two quarter sections of Naber Seeds lands has not proceeded. [ 17 ] Ken suggests that, until the fall of 2022, he was the major decision maker regarding Naber Seeds and Naber Holdings.

Lorraine suggests that the two of them made decisions together regarding Naber Seeds and Naber Holdings. [ 18 ] In March 2023 Lorraine leased all the land owned by Naber Seeds to a third party, Cole Blaikie, for the 2023 growing season [Lease]. It is this Lease that Ken takes issue with and is the subject of the request for injunctive relief. Ken is seeking to have the Lease set aside. [ 19 ] Ken states that he has been farming Naber Seeds lands since he began farming and he intended to continue farming the Naber Seeds lands for the 2023 season.

The Naber Seeds land has never been rented or leased previously. [ 20 ] Further, Ken states that he feels that his life has no purpose if he is unable to continue farming in 2023 as he has for over 60 years. He has no other livelihood and the thought of not farming devastates him. [ 21 ] Ken states that he would normally prepare for seeding in late March or early April and would start seeding in late April to early May depending on the weather.

In the within application, he is seeking to maintain status quo and continue farming the Naber Seeds lands as he has done in the past, and wishes to start seeding as soon as possible. [ 22 ] While Ken alleges that Lorraine made other decisions in relation to Naber Seeds and Naber Holdings that were unfair to him and impacted him negatively , I will leave those allegations for the main application. [ 23 ] Lorraine raised a number of allegations regarding financial and farming decisions Ken made over the years respecting Naber Holdings, Naber Seeds and has concerns with Ken’s working relationship with their son, Todd Naber [Todd].

I will leave those allegations to the main application. [ 24 ] In her affidavit filed April 24, 2023, Lorraine addresses the family law matter between her and Ken. From reading Lorraine’s characterization of events, the family law issues arise from her concerns about financial decisions made by Ken,

many of which involve their son, Todd. Lorraine suggests that her and Ken are essentially roommates, and while they remain living together they live separate and do not go places together. [ 25 ] Lorraine speaks to rent she believes is owed from Todd for the use of Naber Seeds lands. While I will not make any findings of fact on this issue, I include this as it explains Lorraine’s motivation for the Lease of Naber Seeds lands to Cole Blaikie.

Lorraine advises that, in the fall of 2022, she informed Ken that she planned to rent or lease the Naber Seeds lands to a third party if she did not receive the back rent she believed was owed from Todd, plus money for the upcoming farming season. She also states that her and Ken were never going to farm in 2023 and that Ken has no intentions of farming this year. [ 26 ] In respect of the Lease, Lorraine states that she believes that securing rent from a farmer that is willing to pay is a better business decision than continuing to rent to Todd, who she claims does not pay rent.

Additionally, she maintains the Lease is a better business decision than allowing Ken to farm the lands for speculative profits. [ 27 ] The Lease funds paid by Cole Blaikie are currently held in trust at the Selnes Rintoul law firm. Issues [ 28 ] The issues before the court are as follows: (

a) What is the proper test for an interlocutory injunction and has the applicant met the requirements of that test? (

b) Should an order of costs be granted?

Analysis What is the proper test for an interlocutory injunction and has the applicant met the requirements of that test? [ 29 ] The test to be utilized on applications for interlocutory injunctions is discussed by the Saskatchewan Court of Appeal in Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011 SKCA 120 at para 113 , 341 DLR (4 th ) 407 [ Mosaic ]: [113] In the interest of clarity, it may be useful to recapitulate the basic points which have been developed in the course of these reasons and to summarize the approach a judge should typically take when deciding whether to grant interlocutory injunctive relief.

This can be done as follows: (

a) The judge should normally begin with a preliminary consideration of the strength of the plaintiff’s case. The general rule in this regard is that the plaintiff must demonstrate a serious issue to be tried, i.e. the plaintiff must have a claim which is not frivolous or vexatious. If the plaintiff raises a serious issue to be tried, it is necessary for the judge to turn to the matters of irreparable harm and balance of convenience. (

b) Irreparable harm is best seen as an aspect of the balance of convenience. The general rule here is that the plaintiff must establish at least a meaningful doubt as to whether the loss he or she might suffer before trial if an injunction is not granted can be compensated for, or adequately compensated for, in damages. Put another way, the plaintiff must demonstrate a meaningful risk of irreparable harm. If this is done, the analysis turns to the balance of convenience proper. (

c) The assessment of the balance of convenience is usually the core of the analysis. In this regard, the relative strength of the plaintiff’s case, the relative likelihood of irreparable harm, and the likely amount and nature of such harm will typically all be relevant considerations. Depending on the particulars of the case, strength in relation to one of these matters might compensate for weakness in another.

Centrally, the judge must weigh the risk of the irreparable harm the plaintiff is likely to suffer before trial if the injunction is not granted, and he or she succeeds at trial, against the risk of the irreparable harm the defendant is likely to suffer if the injunction is granted and he or she prevails at trial. That said, the balance of convenience analysis is compendious. It can accommodate a range of equitable and other considerations. (

d) The judge’s ultimate focus in considering whether to grant interlocutory injunctive relief must be on the overall equities and justice of the situation at hand. [ 30 ] The Mosaic test has been adopted in subsequent decisions of this court. As noted by Danyliuk J. in Elite Property Management Ltd. v Cain, 2020 SKQB 265 at para 21 [ Elite ]: [21]… PCS [ Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc , 2011 SKCA 120 , 341 DLR (4 th ) 407 ] established a fresh perspective on the classic test to be used on injunction applications in this province.

No longer is there a mechanical application of the traditional three-part test, as if it was a series of hurdles to overcome. The true focus of whether to grant an injunction must be on the overall equities and justice in the case. [ 31 ] I accept that the Mosaic test applies and will consider the test as against the circumstances herein. (

a) Strength of the Applicant’s Case [ 32 ] In considering the strength of the applicant’s case, I am guided by Mosaic . The plaintiff or applicant must demonstrate a serious issue to be tried (paras. 42-48). In reliance on Mosaic , I am proceeding on the basis that the proper standard to apply at this first stage of the test is a “serious issue to be tried”. [ 33 ] On review of the evidence and taken as a whole, I find that the applicant has met the “serious issue to be tried” standard.

[ 34 ] Ken has brought a claim pursuant to s. 18 of the Act , grounded in oppression and initiated by way of originating application. Ken has pled that he has been oppressed by the respondents and is seeking a number of remedies related to those oppression allegations. In addition to the originating application, Ken has filed several affidavits to support his position.

Similarly, the respondents have filed several affidavits to support their position. [ 35 ] Ken argues that he satisfies the “serious issue to be tried” because the underlying cause of action, oppression, is a recognized cause of action under the Act .

He further argues that he had a reasonable expectation to continue farming the Naber Seeds lands in 2023 as he had done for over 60 years and despite this reasonable expectation, Lorraine leased the lands to a third party. [ 36 ] Ken argues that the acts and omissions of the respondents, particularly Lorraine, have been exercised in an unfair, oppressive manner that is prejudicial to Ken. He relies on s. 18 - 4 of the Act for an interim order to ensure the parties are treated fairly.

Section 18 - 4 reads as follows: 18-4(1) A complainant may apply to a court for an order pursuant to this section.

(2) On an application pursuant to subsection (1), a court may make an order to rectify the matters complained of if the court is satisfied that, respecting a corporation or its affiliates, its business or affairs have been carried on or conducted in a manner, its directors have exercised their power in a manner, or its actions or omissions have effected a result, that: (

a) is oppressive or unfairly prejudicial to the interests of any security holder, creditor, director or officer; or (

b) unfairly disregards the interests of any security holder, creditor, director or officer.

(3) In connection with an application pursuant to this section, the court may make any interim or final order it considers appropriate, including, without limiting the generality of the foregoing: (

a) an order restraining the conduct complained of; (

b) an order appointing a receiver or receiver-manager; (

c) an order to regulate a corporation’s affairs by amending the articles or bylaws or creating or amending a unanimous shareholder agreement; (

d) an order directing an issue or exchange of securities; (

e) an order appointing directors in place of or in addition to all or any of the directors then in office; (

f) an order directing a corporation, subject to subsection (6), or any other person, to purchase securities of a security holder; (

g) an order directing a corporation, subject to subsection (6), or any other person, to pay to a security holder any part of the moneys that the security holder paid for securities; (

h) an order varying or setting aside a transaction or contract to which a corporation is a party and compensating the corporation or any other party to the transaction or contract; (

i) an order requiring a corporation, within a time specified by the court, to produce to the court or an interested person financial statements in the form required by

section 13-2 or an accounting in any other form that the court may determine; (

j) an order compensating an aggrieved person; (

k) an order directing rectification of the registers or other records of a corporation pursuant to

section 18-6; (

l) an order liquidating and dissolving the corporation; (

m) an order directing an investigation pursuant to

Part 17 to be made; (

n) an order requiring the trial of any issue.

(4) If an order made pursuant to this

section directs amendment of the articles or bylaws of a corporation: (

a) the directors shall immediately comply with subsection 14-22(4); and (

b) no other amendment to the articles or bylaws shall be made without the consent of the court, until a court otherwise orders.

(5) A shareholder is not entitled to dissent pursuant to

section 14-21 if an amendment to the articles is effected pursuant to this section.

(6) A corporation shall not make a payment to a shareholder pursuant to clause (3)(

f) or (

g) if there are reasonable grounds to believe that: (

a) the corporation is or would after that payment be unable to pay its liabilities as they become due; or (

b) as a result of the payment, the realizable value of the corporation’s assets would be less than the aggregate of its liabilities.

(7) An applicant in accordance with this

section may apply in the alternative for an order pursuant to

section 16-6. [ 37 ] The respondents rely on the Saskatchewan Court of Appeal decision in Moosomin First Nation v 10106 1721

Saskatchewan Inc., 2010 SKCA 110 at para 26, [2011] 2 WWR 193 [Moosomin] in arguing that Ken must show a “strong prima faciecase” to satisfy this first branch of the in test for inunction relief: [26] The onus of proof in relation to oppression remedies lies with the party seeking the remedy.

Section 234(2) of The BusinessCorporations Act says a court may make an order if it is “satisfied” that actions have been taken which are oppressive, or have unfairlyprejudiced, or have unfairly disregarded, the interests of a security holder, creditor, director or officer. “Satisfied” has been interpreted asmeaning the applicant must establish its case on a balance of probabilities. However, Moosomin and the appellants are in agreement that,in order to secure an interim order, the applicant must make out its position only on a “strong prima facie case” basis. See, for example:D.H.

Peterson, Shareholder Remedies in Canada, looseleaf (Markham: Butterworths, 1989), at paras. 18.18 and 18.19; M. Koehnen,Oppression and Related Remedies (Toronto: Thomson Canada Limited, 2004), at pp. 338-339. [38] Moosomin was decided by the Saskatchewan Court of Appeal before Mosaic. Mosaic appears to have shiftedthe landscape, clarifying the “serious issue to be tried” analysis for the first branch of the injunctive relief test.

I am mindful ofBarrington-Foote J.’s (as he then was) decision in Rupcich v Mravcak, 2013 SKQB 77, [2013] 8 WWR 153 [Rupcich] where heconsidered interim relief in an oppression matter. [39] In Rupcich, the court considered the approach to the test for injunctive relief at paras. 82 and 83. The courtcautions against a “mechanical application” of the rule in Mosaic at paras 85 and 90: [85] However, the Court did not reach that conclusion on the basis of a mechanical application of the general rule specified in Mosaic.Rather, Jackson J.A. noted the following considerations: 29 ...

First, the considerations put forward by the Court in Mosaic for departing from the strong prima facie case standard apply withequal force to the within appeal. This is not the type of case where the Court might be concerned about interference with the on-goingmanagement of the corporation. According to the evidence, the funds will be distributed. The only question is to whom.

Second, it is notentirely clear that the test for quia timet and Mareva injunctions is immutably the strong prima facie case standard. (See: Robert J.Sharpe, Injunctions and Specific Performance, looseleaf (Toronto: Canada Law Book, 2012) at para. 2.870 and Aetna Financial Servicesv Feigelman, (SCC), [1985] 1 SCR 2, where the Court expresses caution with respect to the granting of a quia timetinjunction, but does not specify a specific test to apply.) Third, I am cognizant of the possible argument that the standard injunctionanalysis may not apply to the granting of relief pursuant to s. 234 of The Business Corporations Act (see: Markus Koehnen, Oppressionand Related Remedies (Toronto: Thomson Carswell, 2004), at pp. 338-39).

This argument was not pursued in either this Court or theCourt of Queen's Bench, but it seems inappropriate for this Court to establish an exception to the Mosaic principles in this case, whichmay very well not have any application to oppression cases in the long term.

Finally, the matter was argued before the Chambers judgeon the basis that RJR-MacDonald [ (SCC), [1994] 1 SCR 311] and Mosaic required the strength of the case to bemeasured on the serious question to be tried standard --indeed, counsel candidly indicated that there was a concession in this regard. … [90] As to the appropriate standard to be applied in relation to the strength of the plaintiffs’ case, both plaintiffs’ and defendants’ counselrelied on Mosaic as authority for the proposition that the issue is whether there is a serious question to be tried.

I am mindful of the factthat Mosaic contemplates exceptions to that rule, and that Kantor, supra [101114752 Saskatchewan Ltd v Devonian Potash Inc, 2012SKCA 64, 399 Sask R 36], adopted the serious question to be tried test, in part on the basis that the particular facts in that case did notjustify an exception. Potential interference with ongoing management, a factor that is specifically noted as a potential issue in this contextin Kantor, supra, is a live issue in this case, particularly in relation to the Assets Order.

A strong prima facie case may well be theappropriate test if I had concluded that the Assets Order, broadly drafted as it is and high impact as it would be, may be in play. [40] Relying on Rupcich, the respondents argue that there is a significant impact from the cancellation of the Leaseand, as a result, the “strong prima facie case” is the appropriate standard to consider this first branch of the injunction test. [41] The respondents argue that in seeking both interim and final relief, the applicant is required to show that he hada reasonable expectation and Lorraine has acted in a manner which would constitute oppression, an unfair prejudice, or an unfairdisregard on a balance of probabilities. [42] Referring back to para. 26 of Mosaic, the test for injunctive relief set out therein: [26]…should be regarded as the framework in which a court will assess whether an injunction is warranted in any particular case.

Theultimate focus of the court must always be on the justice and equity of the situation in issue. As will be seen, there are important andconsiderable interconnections between the three tests.

They are not watertight compartments. [43] Rupcich confirms that oppression applications may attract the standard of a strong prima facie case to be provenat this stage of the analysis, however it also confirms that imposing such a standard for injunctive relief in oppression applications wouldseem anomalous given the wide range of remedies that may be granted under the Act (paras. 94-95). [44] I accept that while there may be situations where an issue may attract the “strong prima facie case” standard atthis stage of the test for injunctive relief.

This is not such a situation. [45] I accept Ken’s argument in respect of the standard to assess this first stage of the test, serious issue to be tried. Iacknowledge the underlying cause of action and Ken’s intentions for farming in 2023. I do not see any evidence or information tosuggest that the originating application filed herein is frivolous or vexatious, nor was this argued by the respondents. [46] The respondents further argue that it was Ken’s own actions which have breached Lorraine’s expectations.

Thebulk of the respondent’s efforts are focussed on Ken’s alleged poor financial and business decisions and his business relationship withtheir son, Todd. I see these arguments as defences or potential mitigation in response to the oppression allegations.

[ 47 ] Finally, the respondents argue that Lorraine’s conduct falls short of oppression given that she is fulfilling her duties as a director of Naber Seeds, making sound business decisions and responding to Ken’s poor business and financial decisions. They argue that as a result, a strong prima facie does not exist and the request for injunctive relief ought to be dismissed. [ 48 ] Ken argues that he farmed the Naber Seeds lands consistently up to 2022. While there is some dispute over Ken’s intentions for farming in 2023, I accept that he has been clear that he intended to continue farming in 2023.

Ken’s affidavit evidence and correspondence from counsel in response to Lorraine’s advice that she wished to lease the Naber Seeds lands clearly show his intent to continue farming in 2023. Given that this has been Ken’s livelihood and way of life for over 60 years, it is a reasonable expectation that he would continue to farm Naber Seeds lands in 2023. [ 49 ] In my view, the respondents fail to address how Ken’s expectation that he would continue farming Naber Seeds lands in 2023 was unreasonable.

The issue of reasonable expectation is central to an oppression action ( Rupcich at para 67 ) and accordingly I will defer further discussion on this point to the main application. [ 50 ] The respondents rely heavily on the director’s fiduciary duty to the corporation, noting that Ken is a minority shareholder, but without addressing the fact that Naber Seeds is a family-owned corporation embroiled in the Family Matter.

It is not as simple as saying that Lorraine owes a fiduciary duty to Naber Seeds, under the circumstances of this closely held, family business. [ 51 ] On review of the evidence as a whole, I find that Ken has shown a serious issue to be tried in his oppression application. He is seeking to address conduct that falls within the scope of s. 18 of the Act . [ 52 ] Ken brings forth cogent affidavit evidence relating to the allegations of oppression as alleged.

While the respondents have disputed much of the affidavit evidence, I view the affidavit evidence, read along with the originating application as establishing a serious issue to be tried. (

b) Irreparable Harm [ 53 ] Paragraphs 57 through 61 of Mosaic provide guidance in respect of irreparable harm. As noted by Danyluik J. in Elite at para 47 : [47]…It was determined that the granting of an injunction generally, and the assessment of irreparable harm in particular, involves a weighing of risks as opposed to weighing of certainties. Risks will flow from granting an injunction, as well as refusing same.

The balancing of such risks is integral to the overall process of determining whether injunctive relief ought to be granted. [ 54 ] In particular, para. 61 of Mosaic speaks to the assessment of the alleged irreparable harm: [61] Therefore, in the end, it is sufficient that, as a general rule, a plaintiff seeking interlocutory injunctive relief be required to establish a meaningful risk of irreparable harm or, to put it another way, a meaningful doubt as to the adequacy of damages if the injunction is not granted.

This is a relatively low standard which will serve to fairly easily move the analysis into the balance of convenience stage of the decision-making. It is there that all of the relevant considerations can be weighed and considered with as much subtlety as the circumstances require. This said, I should add once again that I do not mean to deny any possibility of there being exceptions to this rule. The approach being endorsed here is one of general, but not necessarily universal, practice. [ 55 ] Proving a meaningful risk of irreparable harm is perhaps a lower standard than previously in place.

Ken must show what the risks are and how the harm is such that it cannot be compensated with damages. [ 56 ] Ken argues that the matter is urgent as the 2023 farm season is about to begin and farm inputs must be purchased to grow the crop. He further argues that damages will not compensate him for his loss of identity, mental anguish and his way of life.

Ken states that farming is what gives his life meaning and damages cannot account for the value of a person’s self-worth. [ 57 ] Ken further argues that Naber Seeds and Naber Holdings are organized to benefit each other, and one cannot successfully function without the other. While there are two companies that control the lands, he suggests it is a creation for tax purposes and the two are essentially intertwined. He argues that this is an issue of viability of the operation as a whole.

Machinery has been purchased to be used for the larger operation of Naber Seeds and Naber Holdings lands and that machinery would be underutilized. Decisions on the various stages of farming are made throughout the farming season and those decisions affect the entirety of the lands, not just a part of it. [ 58 ] Ken argues that he possesses decades of experience in adapting and making decisions in relation to the land. If the adjacent Naber Seeds lands are being farmed in a way that is different or detrimental to the Naber Holdings lands, it is problematic for Ken and could have devastating impacts.

He further argues that he needs to be able to make decisions as he goes, responding to weather and other environmental factors, and in relation to the whole of the lands, not just half of them. [ 59 ] Finally, Ken argues that he has an emotional connection to the lands. He has farmed the lands for over 60 years and aside from his livelihood and passion, some of the lands have been passed down from generation to generation. Ken does not want a stranger farming the lands that are so deeply personal to him.

According to Ken, forcing him to break his connection to the land cannot be compensated in damages. [ 60 ] The respondents argue that Ken’s feelings do not equate to irreparable harm.

They further argue that there is no basis for finding that ancestral embarrassment or depression amounts to irreparable harm in the corporate context. [ 61 ] The respondent’s call into question Ken’s true intentions to farm in 2023 and whether he will simply allow Todd to farm the lands without little input from Ken, and to the detriment of the respondents. [ 62 ] I accept that Ken has established a meaningful risk of irreparable harm. He has provided evidence of his farming

activities up to 2022 and his desire to continue farming the Naber Seeds lands. I accept that farming the Naber Holdings and Naber Seeds lands is his livelihood, it is tied to his self-worth and that disallowing him to farm the Naber Seeds lands in 2023 could have a detrimental effect on him. Additionally, I accept that the Naber Seeds lands and the Naber Holdings lands are tied together in such a way that it is difficult to farm one without the other. Ken’s affidavit and reply affidavit support this proposition, as does the affidavit evidence of Todd and Ken Edward. (

c) Balance of Convenience [ 63 ] In considering the balance of convenience, Mosaic informs that it is necessary to balance the factors previously reviewed in light of equitable factors (para. 113). I must then consider the risk of irreparable harm to Ken if the injunction is denied but he wins in the main hearing against the risk of irreparable harm to the respondents if this injunction is granted but they succeed at the main hearing. [ 64 ] I find that the balance of convenience favours Ken. [ 65 ] As indicated, Ken is 83 years old.

While the respondents have questioned Ken’s physical and cognitive ability to continue farming, he has expressed a desire to continue to do so and was farming as recently as 2022. I have not been provided any medical evidence to suggest that he is incapable, in any way, to continue farming in the same capacity as he did in 2022 or at all. [ 66 ] Ken argues that he reasonably expected to continue farming the Naber Seeds lands along with the Naber Holding lands for the 2023 season.

When the potential to lease the Naber Seeds lands was raised by Lorraine, Ken asked that she not lease the lands to a third party, and he made it known that he wished to continue farming the lands in 2023. [ 67 ] Ken further argues that he will suffer significant harm if injunctive relief is not granted. The farming operation was profitable in 2022 and Ken argues that he will not have the opportunity to realize similar profits (approximately $350,000), in 2023 farming only a portion of the lands.

He suggests that the inability to farm the entirety of the family lands will negatively impact both him and Lorraine from a financial standpoint. [ 68 ] Finally, Ken argues that Lorraine has disrupted the status quo by leasing the Naber Seeds lands. He would be the one to suffer emotionally, they would both suffer financially and states that it would be just and equitable to grant injunctive relief. [ 69 ] The respondents argue that Lorraine leased the Naber Seeds lands to ensure her financial security and that it is a sound business decision.

The respondents argue that Ken has made a number of largely financial decisions that have impacted Lorraine negatively and she is concerned for her own financial well-being. [ 70 ] The respondents further argue that Lorraine is making a sound financial decision in respect of the Naber Seeds lands, ensuring guaranteed profits from the Lease money.

They argue that any profit that may be seen from the farming operation are speculative, and the better business decision rests with the guaranteed Lease payment from Cole Blaikie. [ 71 ] The respondents focussed their argument on Ken’s financial and business decisions and the problems related to Ken and Lorraine’s son, Todd.

The respondents argue that the Lease ought to stand on the basis that it is a sound financial decision, that there is no irreparable harm, and the parties can argue about the remainder of the oppression application at a later date. [ 72 ] I acknowledge that the respondents may suffer harm if the injunction is granted. Mr. Blaikie has paid the amount required by the Lease and those funds are currently held in trust with the respondent’s counsel. The respondents will lose the rent funds that have been paid as a result of the Lease.

Ken has proposed ways to mitigate those losses, in part by successfully farming the land and by offering to pay to Naber Seeds the amount that would have been received from Cole Blaikie under the Lease. [ 73 ] The respondents, and particularly Lorraine, have leased the Naber Seeds lands against Ken’s wishes and expectations.

Given the corporate structure of Naber Seeds, Lorraine may be at liberty to take these steps, but for the oppression allegation and potentially the Family Matter. [ 74 ] It may be that Ken has made business decisions in respect of the farming operation that have affected the respondents negatively, but that is not the current application before the court. It may or may not be justification for Lorraine’s actions in the main application. I make no findings in this respect. [ 75 ] The fiat of Turcotte J. from June 2021 weighs in favour of Ken on this third part of the test for injunctive relief.

While I do not have an application to enforce that order, or a contempt application before me, the fiat appears to restrain the very conduct complained of here. Turcotte J. referred to the June 2021 fiat as a “staying order”. Accordingly, Ken reasonably expected that he could continue to farm the Naber Seeds lands without interruption. [ 76 ] In considering all of the evidence before me, the equities favour Ken’s application for injunctive relief.

I accept that Ken is subject to a substantial risk of harm if the injunction is not granted and any harm suffered by the respondents can be addressed in the main application, the Family Matter or in any event as damages. Return on Seven Days’ Notice [ 77 ] Ken has requested various forms of relief in his originating application and in the injunction application.

He argues that the relief sought in the injunction application is all related to injunctive relief and provided a draft order for the court’s reference. [ 78 ] The respondents argue that if the court is inclined to grant injunctive relief, it ought to be limited to the relief that is directly related to the injunction. I agree with the respondents, that the relief ought to be limited to address the immediate issues that are directly connected to injunctive relief.

[ 79 ] Ken has suggested that the matter may be returned to court, by any party, on seven days’ notice. I am declining to grant the order as requested. While I acknowledge that the parties have expressed serious concerns of the other’s conduct and their handling of the respective businesses, the main application will likely be heard in the near future. As well, a number of interrelated issues between Ken and Lorraine may be discussed between the parties within 45 days or so at the pre-trial conference.

If the parties do not resolve their issues at the pre-trial conference, the main application will be heard shortly thereafter. Rent Payment to Naber Seeds [ 80 ] Ken has suggested that the harm to the respondents in granting him injunctive relief is purely financial given that Naber Seeds will lose the rental paid by Cole Blaikie.

In an effort to mitigate this harm, Ken has offered to pay the respondent, Naber Seeds, the rent money that would have been paid by Cole Blaikie. [ 81 ] Ken argues that while it pains him to pay rent to use what he argues are his and his family’s lands, he wanted to address the respondents’ financial concerns that the rent would bring in a guaranteed amount whereas income from farming is not guaranteed. [ 82 ] The respondent argued that any money paid by Ken would come from a RRIF which would be considered family property.

As a result, the respondents reject the notion that this is appropriate compensation for the loss of the Lease money. [ 83 ] Again, I am mindful that the Family Matter is set for a pre-trial conference in the near future and that the Naber Seeds lands form a part of the family property to be discussed during that pre-trial conference. I am also mindful that I do not have all the information relating to the Family Matter, nor am I privy to the exact issues that may be raised in the pre-trial conference.

Finally, I am mindful of the respondent’s argument that money offered by Ken to pay Naber Seeds may be family property. [ 84 ] To avoid any potential interference in the Family Matter, I decline to grant the order as requested and defer this issue to the application proper. I leave this issue to the parties to raise in the hearing proper if not otherwise resolved prior to. Monitor for the 2023 Farming Season [ 85 ] Ken has requested the court to appoint a third-party monitor for the 2023 farming season who would report back to the Naber Seeds and Naber Holdings shareholders.

He argues that he is responding to the respondents’ allegations regarding his decision making and management of the family farms and attempting to set Lorraine’s mind at ease in respect of the farming operations. The Naber Seeds and Naber Holdings farming operations were monitored last year, for the same reason. [ 86 ] Ken has suggested agrologist John Spencer for appointment to the role of monitor. The court has been provided with a copy of Mr. Spencer’s resume and been advised that Mr.

Spencer is willing to act in the role of monitor for the 2023 farming season and report to the Naber Seeds and Naber Holdings shareholders. [ 87 ] The respondents argue that a monitor is expensive, and they are unclear of Mr. Spencer’s independence. They suggest that appointing him as monitor adds complexity and costs of an open nature. [ 88 ] The respondents do not address the fact that a monitor was in place for the 2022 farming season.

It is unclear why the respondents would be against someone acting in such a role for the 2023 farming season when they have raised concerns regarding Ken’s decision making in relation to the farming operation, his ability to farm and Todd’s role in the farming operation. The respondents did not suggest an alternative individual to act as monitor in place of Mr. Spencer. [ 89 ] I agree that a monitor ought to be appointed for the 2023 farming season, particularly here where I have granted injunctive relief, setting aside the Lease.

In light of Lorraine’s allegations in respect of Ken’s ability to farm and his business practices, a monitor who will report to the Naber Seeds and Naber Holdings shareholders will be of some assistance. [ 90 ] John Spencer, agrologist, is hereby appointed to monitor the farm operation and report to the shareholders of both corporations, Naber Seeds and Naber Holdings, for the 2023 farming season. [ 91 ] All other relief requested by Ken is deferred to the hearing proper. Costs [ 92 ] In the main application Ken is seeking solicitor-client costs on a full indemnity basis.

Rule 11-1(1) of The Queen’s Bench Rules speaks to the court’s discretion in ordering costs: 11-1(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of and incidental to a proceeding or a step in a proceeding, and may make any direction or order respecting costs that it considers appropriate. [ 93 ] Ordinarily, costs will follow the event. Given that Ken was successful in seeking injunctive relief and in exercising my discretion, he is entitled to costs in the amount of $1,500 payable in any event of the cause but not forthwith.

Order [ 94 ] Accordingly, I make the following orders: (

a) The applicant, Ken Naber’s application for injunctive relief pursuant to s. 18 - 4(3) (

h) of The Business Corporations Act, 2021, SS 2021, c 6 is allowed. The lease dated February 13, 2023, between Cole Blaikie and Naber Seeds Ltd. is set aside. (

b) John Spencer, agrologist, is hereby appointed to monitor the farm operations and report to the shareholders of both

corporations, Naber Seeds Ltd. and Naber Holdings Ltd., for the 2023 farming season. (

c) The parties may contact the Local Registrar’s office in Regina to arrange for a mutually agreeable time for further case management pursuant to General Application Practice Directive # 9. (

d) The applicant, Ken Naber shall have costs in the amount of $1,500 payable in any event of the cause but not forthwith. J. C.L. NORBECK KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 100 Date: 2023 05 25 Docket: KBG-RG-00852-2023 Judicial Centre: Regina BETWEEN: KEN NABER APPLICANT - and - LORRANE NABER and NABER SEEDS LTD. RESPONDENTS - and - COLE BLAIKIE THIRD-PART RESPONDENT Counsel: Kevin C. Mellor and Sharon R. Fox for the applicant William A. Selnes, K.C. and Brandi M. Rintoul for the respondents Cole Blaikie no one appearing CORRIGENDUM TO THE JUDGMENT NORBECK J.

DATED May 12, 2023 Ma y 25, 2023 [ 95 ] Paragraph 1 of the decision of May 12, 2023 is amended by changing “[collectively, respondents]” to “collectively, [respondents]”. [ 96 ] Paragraph 10 of the decision of May 12, 2023 is amended by changing “ The Business Corporations Act, 2021, SS 2021 C 6 ” to “ The Business Corporations Act, 2021 , SS 2021, c 6 ”.

[97] Paragraph 29 of the decision of May 12, 2023 is amended by changing “Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011 SKCA 120 at para 113 341 DLR (4th) 407” to “Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011 SKCA 120 at para 113, 341 DLR (4th) 407”. [98] Paragraph 30 of the decision of May 12, 2023 is amended by changing “Elite Property Management Ltd. v.Cain’ to “Elite Property Management Ltd. v Cain”. [99] The quotation in para. 39 of the decision of May 12, 2023 is amended by changing “RJR-MacDonald andMosaic” to “RJR-MacDonald [ (SCC), [1994] 1 SCR 311] and Mosaic”. J. C.L. NORBECK