Court of Appeal for Saskatchewan Docket: CACV3505 Citation: Mann v Mann , 2023 SKCA 99 Date: 2023-08-28 Between: James Mann Appellant (Applicant) And Jason Mann and 101187148 Saskatchewan Ltd. Respondents (Respondents) Before: Caldwell, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Court On appeal from: 2019 SKQB 262 , Saskatoon Appeal heard: June 15, 2023 Counsel: Wendy Kelley for James Mann Robert Hawkes, K.C. for Jason Mann Khurrum Awan and Allen Berriault for 101187148 Saskatchewan Ltd. The Court I.

Introduction [ 1 ] This appeal concerns the authority of a corporate officer to carry on the company’s business in the face of a deadlock among its directors. [ 2 ] James Mann and Jason Mann are brothers. Each owns 50 per cent of the shares of 101187148 Saskatchewan Ltd. [7148]. They are also its only directors and officers. Jason is the president of that corporation. James is its secretary-treasurer. [ 3 ] 7148 is the sole shareholder of Genesis Grain & Fertilizer GP Inc. [Genesis Holdco] and Genesis Operating GP Inc. [Genesis Opco].

We will refer to these two companies collectively as the Genesis companies. [ 4 ] On December 28, 2018, Jason, acting in his capacity as president of 7148, signed four resolutions on behalf of 7148 as the sole shareholder of the Genesis companies [Genesis shareholder resolutions]. James then commenced an action seeking to invalidate the Genesis shareholder resolutions based on Jason’s failure to secure the express authority of 7148’s directors to sign the resolutions.

James’s action was dismissed by a Court of Queen’s Bench judge sitting in Chambers: Mann v Mann , 2019 SKQB 262 [ Chambers Decision ]. [ 5 ] James appeals against the Chambers Decision . We have concluded that James’s appeal must be dismissed. Our reasons follow. II. Background A. Events leading to the litigation [ 6 ] 7148 was incorporated under The Business Corporations Act , RSS 1978, c B-10 [ SBCA ], since repealed by The Business Corporations Act, 2021 , SS 2021, c 6 [ SBCA 2021 ]. It is a holding company. Its only business is to hold the shares of the Genesis companies.

The Genesis companies are each incorporated under the

Canada Business Corporations Act , RSC 1985, c C-44 [ CBCA ]. [ 7 ] Each of the Genesis companies is the respective general partner in a Manitoba limited partnership, namely, Genesis Grain & Fertilizer Limited Partnership and Genesis Operating Limited Partnership [collectively the Genesis LPs]. Genesis Holdco is the general partner in Genesis Grain & Fertilizer Limited Partnership, while Genesis Opco is the general partner of Genesis Operating Limited Partnership. [ 8 ] Jason and James are directors of both Genesis companies. They are not, however, the only directors.

Prior to the signing of the Genesis shareholder resolutions that are the subject of this dispute, each of the Genesis companies had boards consisting of five directors. For Genesis Holdco, the additional three directors were Barrie Mann, Terry Drabiuk and Bob Friesen. For Genesis Opco, the three additional directors were Barrie Mann, Terry Drabiuk and Derek Penner. [ 9 ] The Genesis LPs were created in 2014 as an investment and operational vehicle for the potential acquisition of the Canadian Wheat Board.

The promoters of this proposed business endeavor were AgraCity Crop & Nutrition Ltd. [AgraCity] and Farms and Families of North America Inc. o/a Farmers of North America [FNA]. AgraCity is a company owned equally by Jason and James. James is the sole registered shareholder of FNA. [ 10 ] When it became apparent that the promoters could not achieve their goal of acquiring the Canadian Wheat Board, their focus

turned to building a fertilizer supply and distribution system [Project]. Despite early difficulties, they eventually secured $11,859,000 in capital investment from 673 farmers for this enterprise. The expenses associated with raising this capital and pursuing the Project were incurred in first instance by AgraCity. [ 11 ] After securing this capital, in May 2017, the promoters sought financing from the Business Development Bank of Canada [BDC]. At roughly the same time, the board for Genesis Holdco met and discussed, among other things, reimbursement of AgraCity for the costs it incurred on the Project.

The Genesis Holdco board, including James, agreed to the reimbursement but only on the condition that a landholding company equally owned by James and Jason provide a collateral mortgage over certain land it owned to secure repayment of the reimbursement in the event BDC did not follow through with the requested financing. [ 12 ] Up to, and including, the meeting of the Genesis Holdco board, there were no obvious problems between James and Jason.

As described by the Chambers judge, the “rift surfaced after the meeting when [James] changed his mind [about the financing arrangements] and refused to sign the necessary documents for the security that Genesis Holdco had sought” ( Chambers Decision at para 13). Subsequently, BDC’s support came with the condition that the Project would secure another financial partner. Eventually, Conexus Credit Union agreed to serve as the additional financial partner. That agreement came with another condition, namely, that both Jason and James provide personal guarantees.

While Jason agreed to provide such a guarantee, James did not. The Chambers judge stated that the “evidence suggests that this deadlock remained in place for several months” ( Chambers Decision at para 15). [ 13 ] In the spring of 2018, some of the directors of the Genesis companies decided to break the standstill by recruiting a new investor. This decision eventually led to negotiated agreements with a new investor, Lionel Kambeitz, in September 2018.

The agreements [Kambeitz agreements] were subject to ratification by the boards of both Genesis companies. [ 14 ] The boards of directors of the two Genesis companies met in late September 2018 to ratify the amended deal. The meeting of the Genesis Holdco board was tumultuous, taking four days to complete. It concluded with the Genesis Holdco board members voting 3–0 for ratification, with James and Mr. Friesen abstaining. The Genesis Opco board meeting was much shorter, ending the same day it began. It concluded with that corporation’s board members voting 4–0 for ratification, with James abstaining.

The Kambeitz agreements, with only slight amendments arising from the board meetings, were subsequently signed on December 7, 2018. [ 15 ] One of the Kambeitz agreements was a management agreement. It called for a new governance structure for both Genesis companies. The structure stipulated that James, Jason and Mr. Kambeitz would become permanent members of the boards of both Genesis companies and that they would appoint four independent directors within 90 days.

The management agreement also provided for a management committee consisting of the three permanent board members. [ 16 ] Jason instructed solicitors to draft the Genesis shareholder resolutions in order to comply with the management agreement. He then signed those resolutions, on behalf of 7148, on December 28, 2018. Two of the resolutions purported to amend the bylaws of each of the Genesis companies. The other two resolutions purported to remove the incumbent directors from each of the Genesis companies and substitute, in their place, James, Jason and Mr. Kambeitz. B.

The litigation [ 17 ] James commenced his action by originating application issued on May 7, 2019. In it, he requested an order “invalidating the [Genesis shareholder resolutions] for violating both the

Canada Business Corporations Act and The Business Corporations Act , Saskatchewan”, along with other relief. [ 18 ] In support of the originating application, James filed his own brief affidavit. In response, Jason provided his own affidavit, with a much longer recitation of events that led to the matter coming before the Court. Nothing on the record suggests that either party invited the Chambers judge to decide the matter other than based on these two affidavits. Neither party asked to cross-examine on the affidavit that the other side had filed. C.

The Chambers Decision [ 19 ] The Chambers judge began his reasons with a brief introduction. He then observed that he had “received voluminous evidence describing the circumstances that led to this application”, but he found that as “important as this evidence is to [Jason] … it is simply narrative, and not directly relevant to the central issue of the application”. For this reason, he stated that he would “attempt a more focused and more relevant review of the evidence” (at para 5). He then provided an overview of the events that brought the matter before him. The Background

section of these reasons draws heavily on the Chambers judge’s

summary of what he considered to be the more relevant evidence. [ 20 ] The Chambers judge also quoted from 7148’s corporate bylaws that set out the duties and responsibilities of the president, general manager, secretary and treasurer (see Chambers Decision at para 6). In this regard, s. 82 of 7148’s bylaws states that the president “shall be charged with the general supervision of the business and affairs of the corporation” and, except when the board has appointed a general manager or managing director, “shall also have the powers and be charged with the duties of that office”.

Section 83 states that the general manager “ shall have the general management and direction, subject to the authority of the board and the supervision of the president, of the corporation’s business and affairs and the power to appoint and remove any and all officers, employees and agents of the corporation not elected or appointed directly by the board and to settle the terms of their employment and remuneration” (emphasis in the Chambers Decision ). [ 21 ] After setting out this background, the Chambers judge found that “ the sole issue” before him “relates to [Jason’s] power and authority, as president of 7148, to sign and approve the four subject shareholder resolutions for the Genesis companies” (at para 26).

Following this, he quoted s. 142 of the CBCA and s. 136 of the SBCA . He then concluded that, since the four impugned resolutions were of the Genesis companies and not 7148, “there is little doubt that s. 142 of the CBCA must apply” (at para 28). However, he then reiterated that the “real issue raised by this application is simply whether [Jason], as president of the corporate shareholder for the Genesis companies, had the authority to approve the shareholder resolution on its behalf”. He found, given that “the sole shareholder for the

Genesis companies is a Saskatchewan incorporated company, that matter must be determined by the applicable law of this province” (atpara 29). [22] With this conclusion in hand, the Chambers judge determined that the “duties and powers of office holders within aSaskatchewan incorporated company is a matter to be addressed by the company’s bylaws or any unanimous shareholder agreement thatmay exist” (at para 30). He noted that there was no unanimous shareholders agreement, leaving “the matters to be addressed by thecompany’s bylaws”.

He quoted s. 116 of the SBCA, which was the provision of that Act dealing with the appointment of corporateofficers. He reviewed what he identified to be the pertinent parts of the bylaws and found within these provisions that the “power of thepresident of 7148 includes all aspects relating to the ‘general supervision’, ‘general management’ and ‘direction’ of the company’sbusiness and affairs” (at para 31). From this, he concluded that it “necessarily follows, that [Jason], as president, did have the power andauthority to sign and approve the four shareholder resolutions” (at para 32).

This determination led the Chambers judge to dismissJames’s originating application. D. Intervention application [23] This appeal was heard on June 15, 2023. The day before the hearing, James served and filed an application on behalf of FNAseeking an order granting that corporation the right to make submissions at the hearing of the appeal, pursuant to Rule 17(1) of The Courtof Appeal Rules [Rules].

That rule states as follows: Intervention 17(1) Any person interested in any proceeding before the court may, by leave of the court, intervene in the proceeding on the terms andconditions the court may direct. [24] Jason and 7148 opposed FNA’s request to intervene in this appeal. After hearing the submissions of the parties, the panelbriefly recessed, following which the parties were advised that FNA’s application was dismissed, with reasons to follow.

We now givethose reasons. [25] R v Latimer (1995), (SK CA), 128 Sask R 195 (CA) [Latimer], is often cited in this province as establishingthe principles that guide a court when faced with a request to intervene in an appeal. In paragraph 5 of that decision, Sherstobitoff J.A.quoted with approval the following passage from John Sopinka & Mark A.

Gelowitz, The Conduct of an Appeal, 1st ed (Toronto:Butterworths, 1993) at 187–188: In considering an application to intervene, appellate courts will consider: (1) whether the intervention will unduly delay the proceedings;(2) possible prejudice to the parties if intervention is granted; (3) whether the intervention will widen the lis between the parties; (4) theextent to which the position of the intervener is already represented and protected by one of the parties; and (5) whether the interventionwill transform the court into a political arena.

As a matter of discretion, the court is not bound by any of these factors in determining anapplication for intervention but must balance these factors against the convenience, efficiency and social purpose of moving the caseforward with only the persons directly involved in the lis. [footnotes omitted] We observe that in the most current edition of the book, the authors add to this list of relevant factors.

They note that, in deciding anapplication to intervene, an appellate court will also consider “whether the intervention motion was unduly delayed” and “possibleprejudice to the prospective intervener if intervention is denied” (John Sopinka, Mark A. Gelowitz & W. David Rankin, Sopinka, Gelowitzand Rankin on the Conduct of an Appeal, 5th ed (Toronto: LexisNexis Canada, 2022) at ¶8.19). [26] The considerations set out in Latimer, and similar non-exhaustive lists, have served as a consistent touchstone for this Courtwhen deciding applications to intervene in appeals.

In Mosten Investments LP v The Manufacturers Life Insurance Company o/a ManulifeFinancial, 2019 SKCA 141, the Court (Caldwell, Barrington-Foote and Tholl JJ.A.) reviewed many of these authorities and thenemphasized that the Latimer criteria are but customary criteria, and each request for the grant of intervenor status must be assessedindividually in the context of the case before the Court: [5] As with any discretionary power under The Court of Appeal Rules, the power to grant leave to intervene falls to be exercised as theCourt thinks fit, having regard for the criteria that bear upon the proper exercise of that power.

None of the factors identified in R vLatimer are determinative. Moreover, it is not a question of mathematically tolling-up those factors weighing in favour and against thegrant of leave to intervene. The fact a non-party has an interest that may be affected by an appeal is not determinative of the question ofleave to intervene (Brand [v College of Physicians & Surgeons (Sask.) (1990), (SK CA), 86 Sask R 18 (CA)]). [27] In this case, several considerations led us to dismiss FNA’s application to intervene. [28] We were concerned with the timing of FNA’s intervention request. Rule 48.1(1)(

c) requires that, unless otherwise ordered, anyapplication must be served “at least 3 clear days before the day set for hearing” it (emphasis added). As noted, FNA’s application forintervention was not only served outside of this time frame, but it was not raised as a possibility during case management, when it wouldbe expected to have arisen as an issue, should it have been intended. However, while the late filing of FNA’s intervention application wasa factor we considered, it was not what tipped our decision to dismiss it.

Instead, three additional considerations led us to conclude thatFNA should not be heard in this appeal. [29] First, FNA has no direct interest in this dispute. It is not a shareholder in 7148 or the Genesis companies. Its interest in theissues in this appeal is, at best, indirect. In his affidavit, explaining FNA’s interest in the proceedings, James emphasized that it had set upFNA Fertilizer Limited Partnership, which was involved in the Project along with the Genesis LPs. However, FNA Fertilizer LimitedPartnership was not identified as a relevant party in James’s affidavit.

Moreover, the Offering Memorandum for Genesis Grain &Fertilizer Limited Partnership, which is attached as an exhibit to Jason’s affidavit sworn May 18, 2019, states in part that “FNA has set upa limited partnership not connected to this Offering called FNA Fertilizer Limited Partnership (the ‘ProjectN LP’), to own and operate anitrogen fertilizer production plant (the ‘ProjectN Plant’)” (emphasis added).

[30] The indirect nature of FNA’s interest in the issues in this appeal is also demonstrated by the history of the proceedings. As theparty who commenced these proceedings, James controlled in first instance who was before the court. If FNA had an interest that wasindependent from his own, it would have been logical that James would have named it as a party when he commenced this action.

The factthat he did not do so weighs against it being granted intervenor status now. [31] Second, the procedural history of this appeal also suggests that James was aware that FNA has, at best, a limited and indirectinterest in it. This appeal was under case management prior to it being heard. Many case management hearings were held, at which manyissues were discussed. However, there is no record that even on one occasion did James identify FNA’s interest in it.

If FNA had aninterest that was independent from James, it would reasonably have been expected that this would have been identified in the casemanagement process, which it was not. [32] In his submissions, James’s explanation for seeking status for FNA as an intervenor mostly rested on the assertion that he had abetter grounding in the background to the Project than did the lawyer he had retained to represent his interests in this appeal.

As welistened to James’s arguments, it became evident that he saw the intervention less as an opportunity to present FNA’s independentinterests in the outcome of the appeal and more as an opportunity to give evidence. [33] Third, to the extent that FNA has an interest in the issues in this appeal, those interests are already represented and protected byJames and counsel retained to act on his behalf in this appeal.

Ultimately, we were satisfied that FNA’s intervention would do nothing toassist in deciding this appeal. [34] For all these reasons, we dismissed FNA’s application to intervene in this appeal without costs. III. Issues [35] James’s notice of appeal lists 16 grounds. For the most part, these contain generalized allegations of error and lack anydiscernable basis for appellate review. However, in his amended factum, James identifies two issues that provide an appropriateframework to decide his appeal. We restate these questions as follows: (

a) Did the Chambers judge err in finding that Jason had the legal authority, without a specific authorizing resolution by 7148’sdirectors, to execute the Genesis shareholder resolutions? (

b) If Jason had the legal authority to execute the resolutions, did the Chambers judge err in not finding Jason’s conduct to benonetheless oppressive? [36] In addition, at the hearing of the appeal, James filed an application to adduce evidence that was not before the Chambers judge.We will consider the issue of whether to admit this evidence in this appeal before addressing the two substantive questions. IV. Analysis A. The proposed new evidence [37] James has applied for leave to adduce, as evidence in this appeal, an affidavit he swore on April 20, 2023.

He does so pursuantto Rule 59(1) of the Rules, which directs that a “party desiring to adduce evidence on appeal that was not before the court appealed fromshall apply to the court for leave to do so by notice of application returnable on the date fixed for hearing the appeal”. As we will explain,none of the evidence contained in James’s new affidavit meets the test for admission of evidence in this appeal. [38] Evidence that was not before the court whose judgment is under appeal may be admitted only if the evidence: (

a) could not,even with the exercise of due diligence, have been adduced in the court from which the appeal is taken; (

b) is relevant in the sense that itbears upon a decisive, or potentially decisive, issue in the action; (

c) is credible, in the sense that it is reasonably capable of belief; and(

d) is of such a nature that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. This four-part test, derived from R v Palmer, (SCC), [1980] 1 SCR 759, “applies whenever a partyseeks to adduce additional evidence on appeal for the purpose of reviewing the decision below, regardless of whether the evidence relatesto facts that occurred before or after trial” (Barendregt v Grebliunas, 2022 SCC 22 at para 3, 136 DLR (4th) 1).

The “overarchingconsideration is the interests of justice, regardless of when the evidence, or fact, came into existence” (at para 3). [39] In his supporting memorandum of law, James asserts that his affidavit is intended to prove events that have occurred after theChambers Decision was rendered. For this reason, James argues that it would have been impossible for him to have had adduced thisevidence before the Chambers judge. These facts are said to include: (

a) that Jason has, “after the decision under appeal, purported to usethe authority of the decision to unilaterally remove [James] as the board of director [sic] for companies owned by [7148]”; (

b) that Jasonhas used “the alleged power to then orchestrate the conveyance of the assets out of the ownership of [7148]”; and (

c) the expropriation of“property of the Limited Partnership owned by 7148 to another personal holding company” belonging to Jason. In each respect, Jason’sconduct is said to have exceeded the scope of his delegated authority as an officer of 7148. [40] James’s new affidavit also contains considerable detail about matters that predate the Chambers Decision. This evidenceexisted and was available to James when argument was made before the Chambers judge and is inadmissible in an appeal for that reasonunless there is another reason for its admission.

In this regard, James argues that the evidence of events that predate the ChambersDecision provide context for the post-decision events. The admission of this pre-Chambers Decision evidence therefore depends onwhether the evidence of the post-decision conduct is admissible according to the Palmer test. [41] We are satisfied that none of the events described in James’s affidavit that post-date the Chambers Decision are relevant to theissues to be decided in this appeal. Proof that they occurred, therefore, cannot affect its result. For these reasons, James’s affidavit should

not be admitted as evidence in appeal. To assist in explaining this conclusion, we find it useful to turn briefly to the two substantive issues in this appeal. [ 42 ] As noted, the first issue in this appeal is whether the Chambers judge erred in finding that Jason had the legal authority as president of 7148 to execute the Genesis shareholder resolutions without an authorizing resolution of 7148’s directors. As we will explain, the outcome of this issue turns on the proper

interpretation of 7148’s bylaws. This

interpretation is unaffected by James’s own understanding of the bylaws or the Chambers Decision itself. Accordingly, the evidence of what occurred after the Chambers Decision is neither relevant to, nor can it affect the outcome of, the appeal. [ 43 ] The second issue in this appeal is whether, even if Jason had the authority to execute the resolutions, his conduct was nonetheless oppressive.

The answer to this inquiry also cannot be affected by whether there are other instances where Jason has either purportedly exceeded his delegated authority or acted in an oppressive fashion. [ 44 ] For these reasons, we are not prepared to admit James’s new affidavit as evidence in this appeal. To be clear, although we refuse to admit that affidavit as evidence in this appeal, this decision should in no way be taken as suggesting that James is not entitled to a remedy because of the conduct that post-dates Chambers Decision . We have not decided that issue, one way or the other.

Instead, we have simply concluded that the evidence of Jason’s conduct after the Chambers Decision can have no impact on the outcome of this appeal. B. Jason’s authority to execute the Genesis shareholder resolutions [ 45 ] James argues that the Chambers judge erred by concluding that Jason had authority to sign the Genesis shareholder resolutions. In his amended factum, James argues that the officers of 7148 “are bound to follow the decisions and instructions of the Board of Directors” (emphasis added).

Elsewhere, he submits that Jason did “not have any authority to act in a manner contrary to the directions [he] would receive from the Board” (emphasis added). However, these submissions miss the mark as to what occurred in this case. [ 46 ] James’s position is rooted in s. 97(1) of the SBCA which provided at the relevant time as follows: Power to manage 97

(1) Subject to any unanimous shareholder agreement, the directors of a corporation shall: (

a) exercise the powers of the corporation directly or indirectly through the employees and agents of the corporation; and (

b) direct the management of the business and affairs of the corporation. See now, s. 9 - 1(1) of the SBCA 2021 . [ 47 ] James argues that the requirement that directors “shall” undertake the matters referred to in s. 97(1) means that they can delegate supervisory authority, but agents, employees and officers can never “override” the directors. In this regard, he points out that s. 110(1) of the SBCA allowed directors to “appoint from their number a managing director” and to delegate to such managing director “any of the powers of the directors”.

However, he also notes that this power of delegation was itself limited by s. 110(3), which stated at the relevant time as follows: Limits on Authority

(3) Notwithstanding subsection (1), no managing director and no committee of directors has authority to: (

a) submit to the shareholders any question or matter requiring the approval of the shareholders; (

b) fill a vacancy among the directors or in the office of auditor; (

c) issue securities except in the manner and on the terms authorized by the directors; (

d) declare dividends; (

e) purchase, redeem or otherwise acquire shares issued by the corporation; (

f) pay a commission referred to in

section 39; (

g) approve a management proxy circular referred to in Division XII; (

h) approve any financial statements referred to in

section 149; or (

i) adopt, amend or repeal bylaws. See now, s. 9 - 16 of the SBCA 2021 . [ 48 ] We begin our consideration of James’s arguments by observing that, in part at least, they depend on misconstruing what has occurred in this case. Contrary to the implicit assertions made in James’s amended factum, Jason did not fail to follow the decisions and instructions of 7148’s board of directors. He also did not act in a manner that was contrary to the directions he was given by the board.

While it would be accurate to state that 7148’s directors did not pass a resolution authorizing Jason, as president of that corporation, to execute the Genesis shareholder resolution, there also was no directors’ resolution prohibiting him from doing so. The simple fact is that the directors were deadlocked, and this impasse prevented the board of directors, as a deliberative body, from making any decision about these matters.

[ 49 ] The existence of the directors’ deadlock allows a tight focus to be placed on James’s fundamental proposition. In substance, his argument reduces to the submission that, because 7148’s directors are responsible for managing that corporation’s business, a specific resolution of 7148’s board of directors was required for one of its officers to execute the Genesis shareholder resolutions. [ 50 ] James’s submission is that this type of corporate action falls outside the normal scope of authority of a corporate officer.

However, as we will explain, his arguments fail to address all of the relevant provisions of the SBCA or the specific provisions of 7148’s bylaws that led the Chambers judge to conclude that, in the case of this corporation on these facts , Jason had been given the delegated authority to sign the Genesis shareholder resolutions. [ 51 ] As we have already observed, the Chambers judge’s reasoning in this case was straightforward.

He found that, although 7148’s directors had not specifically authorized Jason to execute the Genesis shareholder resolutions, the power to do so was given to him through his appointment as president and the authority that was given to the holder of that office by the corporation’s bylaws. [ 52 ] At its core, “directors can delegate all their power to manage. They cannot, however, delegate the power and responsibility to supervise the management of the business and affairs of the corporation” (J.

Anthony VanDuzer, The Law of Partnerships & Corporations , 4th ed (Toronto: Irwin Law, 2018) at 312, emphasis in original).

Bruce Welling in Corporate Law in Canada: The Governing Principles , 3d ed (London, Ont: Scribblers Publishing, 2006) [Welling], explains the delegation as either a general divulsion of the directors’ powers to a managing director or the appointment of officers with powers outlined in the bylaws (at 321): The first type involves delegation to a committee of the board of directors or to a “managing director”. … A managing director or a committee of the board may exercise any of the powers of the board of directors except those statutorily excluded. … The second type of delegation is second nature to corporations.

It is standard practice for directors to designate corporate “offices” and to delegate to their incumbents (“officers”) the daily running of the corporate machinery. … The directors ordinarily appoint officers and outline each officer’s responsibilities in the by-laws. … [ 53 ] A bylaw “is a permanent and continuing rule, whereas a resolution usually relates to a single act of the company” (Halsbury’s Laws of Canada, Business Corporations at HBC-25 “Distinguished from resolution” (2022 Reissue) [ Halsbury’s Business Corporations ], footnotes omitted).

As explained in Harry Sutherland, Fraser & Stewart Company Law of Canada , 6th ed (Scarborough: Carswell, 1993) at 131, “[t]he extent of the manager’s authority is governed primarily by the by-laws”, and “[w]hether or not any specific act is within the authority of a manager or managing director depends on the facts of a particular case”. [ 54 ] Early in the Chambers Decision , the Chambers judge quoted the parts of 7148’s corporate bylaws that set out the duties and responsibilities of the president and general manager: PRESIDENT 82.

The president shall, when present, preside at all meetings of the shareholders and of the board and shall be charged with the general supervision of the business and affairs of the corporation. Except when the board has appointed a general manager or managing director, the president shall also have the powers and be charged with the duties of that office. GENERAL MANAGER 83.

The general manager, if one be appointed, shall have the general management and direction, subject to the authority of the board and the supervision of the president, of the corporation’s business and affairs and the power to appoint and remove any and all officers, employees and agents of the corporation not elected or appointed directly by the board and to settle the terms of their employment and remuneration.

If and so long as the general manage (sic) is a director he may but need not be known as the managing director. (Emphasis added by the Chambers judge) [ 55 ] The evidence before the Chambers judge established that 7148’s bylaws had been duly adopted by that corporation’s directors and had been approved and enacted by that corporation’s shareholders. Although the record filed with this Court did not include the full set of 7148’s bylaws, no party suggested that the Chambers judge misquoted them or failed to mention any part of them that was relevant to the proper

interpretation of the sections that he did quote. [ 56 ] As noted earlier, when it came to determining if Jason had the authority to sign the Genesis shareholder resolutions on behalf of 7148, the Chambers judge first identified that the “duties and powers of office holders within a Saskatchewan incorporated company is a matter to be addressed by the company’s bylaws or any unanimous shareholder agreement that may exist” (at para 30). He drew this conclusion from s. 116 of the SBCA , which he quoted. At the relevant time, it stated as follows: Officers 116 Subject to the articles, the bylaws or any unanimous shareholder agreement: (

a) the directors may designate the offices of the corporation, appoint as officers persons of full capacity, specify their duties and delegate to them powers to manage the business and affairs of the corporation, except powers to do anything referred to in subsection (3) of

section 110; (

b) a director may be appointed to any office of the corporation; and (

c) two or more offices of the corporation may be held by the same person. See now, s. 9 - 22 of the SBCA 2021 . [ 57 ] Having provided this context, the Chambers judge then offered the following analysis:

[31] Given the absence of evidence relating to a unanimous shareholders’ agreement to address the duties and powers of 7148’s officers, I can only surmise that there is no such agreement. This leaves the matters to be addressed by the company’s bylaws. As there is no evidence of anyone filling the office of general manager or managing director, the respondent’s duties and responsibilities are informed by both ss. 82 and 83 of Bylaw No. 1.

It necessarily follows that the power of the president of 7148 includes all aspects relating to the “general supervision”, “general management” and “direction” of the company’s business and affairs. [32] In the present case, I am persuaded that, in the absence of express limitations to the powers described above, general supervision, general management and direction are sufficiently broad that they include the power to manage and direct 7148’s actions as the sole shareholder of another corporation.

It necessarily follows, that [Jason], as president, did have the power and authority to sign and approve the four shareholder resolutions. [33] Although not directly on point, the above analysis is consistent with that applied in Alacoque v Alacoque , 2010 NLTD(G) 146, 305 Nfld & PEIR 293 . In that case, Adams J. concluded that it was necessary to interpret the applicable bylaws in determining the authority of corporate officers.

I endorse that approach. [ 58 ] The underlying premise of James’s submission is that it was simply beyond the ability of 7148’s directors to delegate to a corporate officer a decision such as whether to execute a resolution of the shareholders of the Genesis companies. We do not agree. [ 59 ] As previously indicated, s. 116 (

a) allowed the directors to “designate the offices of the corporation, appoint as officers persons of full capacity, specify their duties and delegate to them powers to manage the business and affairs of the corporation , except powers to do anything referred to in subsection (3) of

section 110” (emphasis added). The first question becomes whether these words are sufficiently broad to allow directors of a corporation to delegate to its officers the management of the corporation’s rights as a shareholder in another company. [ 60 ] In our assessment of this issue, we begin by observing that there is no suggestion that the delegation of this authority was prohibited by the SBCA .

More specifically, James did not suggest that the voting of the shares of the Genesis companies, through the execution of resolutions of its shareholders, fell within the scope of any of the matters referred to in s. 110(3) that were reserved for decision-making by 7148’s shareholders. In this regard, while s. 110(3)(

i) prohibits the shareholders of a corporation from delegating the authority to amend its own bylaws, the provision said nothing about the exercise of the rights the corporation has in other corporations. We conclude, therefore, that s. 116 (

a) of the SBCA authorized the shareholders of 7148 to pass bylaws that allowed for the delegation to the corporation’s officers the authority to exercise 7148’s rights as a holder of shares of other corporations. [ 61 ] This conclusion then leads to a second question: when properly interpreted, did 7148’s bylaws delegate this authority to the holder of the office of president? In this appeal, James did not directly challenge the Chambers judge’s

interpretation of 7148’s bylaws that led him conclude that this delegation had occurred. Nonetheless, we will consider this question. [ 62 ] No party in this appeal offered submissions as to the appropriate standard of review to be applied by this Court when it considers an appeal from the

interpretation given by a court of first-instance to a corporation’s bylaws. [ 63 ] Although arising in the context of a condominium bylaw, in Maverick Equities Inc. v Owners: Condominium Plan 942 2336 , 2008 ABCA 221 at para 10 , the Court of Appeal of Alberta referred to the

interpretation of a corporate bylaw as raising a question of law and, therefore, the standard of review was correctness. On the other hand, in Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta , 2015 ABCA 101 at para 59 , 382 DLR (4th) 150, the same court dismissed an appeal from a decision interpreting the bylaws of a religious organization, concluding that the judge had “made no palpable and overriding error” in arriving at his conclusion. In Shaw v Belcourt , 2011 ABCA 184 , that same court considered if a corporation’s bylaws had been observed, but, the court explained that “[a]s there appear[ed] to be no dispute about the

interpretation of the articles and bylaws, the issue on appeal is primarily a question of fact and therefore, the applicable standard of appellate review is overriding and palpable error” (at para 18, citing Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235, emphasis added). Most recently, in Dunn v Condominium Corporation No 042 0105 , 2023 ABCA 69 at para 15 , Watson J.A. observed that “there is authority for the proposition that [the]

interpretation of a bylaw of a condominium corporation is a question of law that requires the correctness standard”. However, he ultimately declined to determine this question. Finally, in Enliven Holdings Inc. v Wong , 2021 BCCA 80 at paras 79–83 , 47 BCLR (6th) 34, the Court of Appeal for British Columbia considered the standard of review for the

interpretation of a unanimous shareholder agreement, including how it intersected with a related provision in the corporate bylaws. The Court turned to the standard of review for the

interpretation of a contract, where, absent an extricable question of law or a standard form contract, the applicable standard is that of palpable and overriding error. [ 64 ] Because the issue was not argued, and the cases we have reviewed are equivocal on the point, it is better to leave this question to another day. We are content to do this because even considering the issue on a basis that is most favourable to James – that is, evaluating the Chambers Decision on the standard of correctness – we see no error in the Chambers judge’s

interpretation of 7148’s bylaws. [ 65 ] The scope of any power given to an officer “is to be determined by interpreting the wording of the grant of power” (Welling at 348). Kevin P. McGuinness and Maurice Coombs, in Canadian Business Corporations Law , 4th ed, vol 1 (Toronto: LexisNexis, 2023), explain that normal rules of

interpretation govern the

interpretation of a bylaw: ¶ 6-72 Normal Rules of

Interpretation and Construction Apply to By-laws . In general, the normal rules of documentary construction will govern the

interpretation of the articles and by-laws of a corporation. So far as practical, effect will be given to the plain English meaning of a by-law. However, the by-laws of a corporation are given a liberal as opposed to a technical construction by the courts. … … Thus the courts avoid drawing fine distinctions, and, in an appropriate case, the court will imply a term into a by-law in order to give effect to its apparent intention. When different

interpretations are open, the court will choose that which is most practical and workable. (Footnotes omitted)

[66] The authors further note that “[a] prime object is to allow the corporation to continue to function in a commercially reasonablemanner. In considering an

interpretation of corporate by-laws courts should strive to avoid an

interpretation that produces an absurdity, acommercially unreasonable result or a result which is unworkable” (at ¶6-81).

See also: Halsbury’s Business Corporations at HBC-25. [67] As explained in Foley v Commercial Cars Ltd. (1922), (ON CA), [1923] 3 DLR 453 at 457, the focus, wheninterpreting corporate bylaws to determine the scope of an officer’s responsibility and authority, should be on the functions assigned tothat office, rather than simply the official’s title: … The meaning and effect of the words “manager,” “general manager,” “managing director,” “secretary,” “foreign manager,” “manager inCanada,” as applied to an agent of a corporation, must, I think, vary with the circumstances; what is within the apparent scope of theauthority of an agent appointed under any of these titles is, I think, a question of fact rather than of law.

I am also of opinion that the casesrelied on do not pretend to establish as a matter of law that any agent of the company who bears one of the foregoing titles has, merely byreason of his title, real, implied, apparent, or ostensible authority to do on behalf of the company anything the directors of the companymight have empowered him to do. … [68] Welling makes a similar point (at 323): … Officers’ roles vary considerably.

In large corporations with widely distributed shareholdings the incumbent management mayeffectively run the corporation, determine who will sit on the board of directors, and dictate the direction of corporate business,notwithstanding their technically legal subordination to the board. In a small corporation, where all the shareholders often participate inmanagement, the functions of a particular officer are likely to depend more upon whether he is one of the shareholders than upon the titlehe is given.

All that makes it difficult to make useful general statements about the duties and functions of corporate presidents or corporate secretariesas such. It is more functional to group directors’ responsibilities and officers’ responsibilities under the specific headings of legal orequitable obligations than it is to single out particular types of corporate officers for legal analysis. … [69] As we have noted, the only business of 7148 is as a holding company.

Accordingly, 7148’s business and affairs are integrally,if not almost exclusively, wrapped up in the exercise of shareholder rights and powers in the entities whose shares it holds. Morespecifically, not only is 7148’s sole business that of a holding company, the evidence before the Chambers judge was that the only sharesit held were in the two Genesis companies. This means that what little business 7148 had to transact was tied up in the exercise of theshareholder rights of these two specific entities.

In this overall context, however other corporation’s bylaws might be interpreted, theexecution of resolutions exercising the voting rights attached to the shares owned by 7148 comfortably fit within the “generalsupervision”, “general management” and “direction” of that company’s business and affairs, as the Chambers judge found was the case. [70] We conclude that these general grants of authority gave to Jason, as 7148’s president, the authority to sign the Genesisshareholder resolutions.

Welling states that “[w]here no specific limitation appears in the statute or the corporate constitution, the exerciseof the managerial power is constrained only by the requirement that directors and officers must exercise their powers in the best interestsof the corporation” (at 348). [71] We find additional support for this conclusion in Regina Plumbing and Heating Company, Limited v Bruce Robinson Electric,Limited, (SK CA), [1933] 3 WWR 469 at 475 (Sask CA). In that case, this Court considered a president’s authority toenter into a leasing arrangement.

In recognizing such an authority, Mackenzie J.A. concluded that a president of a company created forthat specific purpose would, by implication, have authority to engage the company in that area: According to its memorandum of association, one of the specific objects for which the plaintiff company was established was to lease realproperty. According to its minutes, resolutions were passed at a general annual meeting of its shareholders, held at Regina on April 27,1917, electing J. S.

Robertson—who, as stated above, executed the lease in question on its behalf—president and manager of the plaintiffcompany, with power of attorney to transact the business of the company. This, I think, must be construed as giving him authority toconduct the company’s business, including that mentioned, of leasing its real property. Under such circumstances, apparently he would beentitled to use the seal of the company where necessary to properly accomplish such business. … (Emphasis added) [72] The same logic applies here. 7148 exists solely to hold a shareholder interest in the two Genesis companies.

The generalauthority given to Jason as 7148’s president therefore extends to exercising a fundamental aspect of that objective, namely, signing aresolution for these entities subject, of course, to any specific contrary direction given to him by its directors. [73] The only case cited by James in his argument against this conclusion is Sevaal Holdings Inc. v LCB Properties Inc., 2014SKQB 47, 437 Sask R 249 [Sevaal Holdings]. That case involved a corporation, LCB Properties Inc. [LCB], owned by two brothers inequal shares.

One brother, Bruce, sold real estate belonging to the corporation without the approval of the second brother, Carman.Carman asked for leave to commence a derivative action in the name of the corporation against Bruce, while Bruce asked for an orderwinding up the corporation. Justice Wilkinson granted Carman the right to commence the derivative action and dismissed Bruce’s windingup request.

Jason relies on the following passage from the judgment of Wilkinson J: [30] Bruce’s argument about the atypical features of the case being an inappropriate subject of a derivative proceeding are not cast asan assertion that Carman should have elected a different form of remedy.

Rather, Bruce is suggesting the uncommon features of the casebolster his assertion that it should be characterized as a situation of “management deadlock”, which would then provide the foundation forordering a winding up and dissolution of LCB. [31] Bruce’s argument ignores the fact that Carman was never given an opportunity to approve or disapprove the sale, nor was hegiven sufficient information to make a fully informed decision as a director in light of Bruce’s failure to disclose the Suncorp appraisal.There can be no deadlock, absent two fully informed decisions.

The sale was a unilateral action on Bruce’s part and accomplished withoutthe full authorization of the board of directors of LCB.

[32] Here, the complaint is that a single director, acting unilaterally without approval of the full board of directors, sold corporate assetsat a significant under-value thereby diminishing the value of the company’s shares. It is alleged that in so doing, he acted in breach of hisfiduciary duty to serve the best interests of the company, and in breach of duty as a director to provide full disclosure of relevantinformation to the full management board. It is, in all respects, the appropriate subject matter of a derivative action. [74] Jason’s reliance on this passage is misplaced.

The issue in Sevaal Holdings was different than that here. More importantly, thebylaws of LCB differed from 7148’s bylaws. As explained by Wilkinson J., in that case a “resolution signed by both directors [was]required by the LCB’s constating bylaws before disposing of any lands owned by the corporation” (at para 22). The prohibition that thiscreated formed the foundation for the derivative action. There is no similar prohibition in this case.

Instead, the interpretative questionhere is whether 7148’s bylaws authorized Jason’s actions absent an express grant of authority. [75] For all these reasons, we are satisfied that the Chambers judge did not err in finding that Jason had the legal authority, aspresident of 7148, to execute the Genesis shareholder resolutions, even though there was no resolution of that corporation’s directorsspecifically authorizing him to undertake that action. C.

The alleged oppression [76] James submits, in the alternative, that if Jason had the legal authority to execute the resolutions, the Chambers judge erred innot finding Jason’s conduct to have been nonetheless oppressive to James’s interests in 7148. In advancing this argument, James relies ons. 234(2) of the SBCA, which provided at the relevant time as follows: 234(2) If, upon 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 affects 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 interests of any security holder, creditor, director or officer, thecourt may make an order to rectify the matters complained of.

See now, s. 16-6(1) of the SBCA 2021. [77] In support of his argument, James refers to BCE Inc. v 1976 Debentureholders, 2008 SCC 69, [2008] 3 SCR 560 [BCE], andseveral other decisions interpreting s. 234 and its equivalents found in the business corporations statutes from other jurisdictions.Collectively, the case law relied upon by James establishes that, even where a corporation or its officials act in a way that is in strictcompliance with the letter of corporate law, their conduct may give rise to a remedy at the hands of a corporate stakeholder when thatconduct defeats the reasonable expectations of the corporate stakeholder and amounts to “oppression”, “unfair prejudice” or “unfairdisregard” of relevant interests.

As stated in BCE, the oppression remedy “gives a court broad, equitable jurisdiction to enforce not justwhat is legal but what is fair” (at para 58).

James’s argument is that, even if 7148’s bylaws authorized Jason, as president, to execute theGenesis shareholder resolutions, the context, informed by past practice, gave rise to James’s reasonable expectation that Jason would onlydo so with his consent and agreement. [78] There are many examples of situations where courts have found that a shareholder had a reasonable expectation to participate,or play a particular role, in the governance or management of a closely held corporation.

This was prominently recognized in BCE,wherein the unanimous Court stated that past practice “may create reasonable expectations, especially among shareholders of a closelyheld corporation on matters relating to participation of shareholders in the corporation’s profits and governance” (at para 76). [79] As a holder of half of 7148’s shares, James’s expectation to participate in management is particularly strong. Dennis H.Peterson and Matthew J.

Cumming state in their text Shareholder Remedies in Canada, loose-leaf (Rel 82, May 2022) 2d ed (Toronto:LexisNexis, 2009) at §17.144, that, at least in most cases, “a 50 percent shareholder has a reasonable expectation to share in themanagement of the corporation” (footnote omitted).

As was stated by Fulton J. in Waxman v Waxman (2002), (ONSC), 25 BLR (3d) 1 (Ont Sup Ct J), varied on other grounds (2004), (ON CA), 44 BLR (3d) 165 (Ont CA),“in a closely held private company, especially one formed to take over the business of a close partnership relation, each ‘partner’ has a realinterest in participating in the management of the affairs of the company” (at para 1516, citing Diligenti v RWMD Operations KelownaLtd. (1976), (BC SC), 1 BCLR 36 (SC) at para 21).

This principle was recently reiterated in the Saskatchewanjurisprudence by Elson J. in Olafson v Stromberg, 2020 SKQB 122 at para 99, rev’d on other grounds, 2023 SKCA 67. [80] Accordingly, both the general context of the business arrangements between the brothers including those relating to 7148, andthe evidence of how they had organized and conducted their affairs, can temper the ability of Jason to rely on the strict legal rights thatwere given to him as president of 7148 pursuant to its bylaws. [81]

Section 234 of the SBCA is not mentioned in the Chambers Decision. In his amended factum, James submits that the Chambersjudge erred “in not considering the issue of oppression that was before him”. James asks that this Court set aside the Chambers Decisionon this basis and remit the matter to the Chambers judge for a decision. [82] We accept that, if this issue had been presented to the Chambers judge for a determination, it would have constituted an error oflaw for him to have failed to address it.

Therefore, a consideration of James’s argument under this head requires a close evaluation of theproceedings before the Chambers judge. [83] We noted earlier that James’s originating application requested an order invalidating the Genesis shareholder resolutions “forviolating both the

Canada Business Corporations Act and The Business Corporations Act, Saskatchewan”. His originating application alsoasked for relief under s. 234 of the SBCA as follows:

d. An Order pursuant to

Section 234 of The Business Corporations Act , Saskatchewan, to rectify the actions of Jason Mann as President of 101187148 Saskatchewan Ltd. in executing the December 28, 2018 Resolutions of 101187148 Saskatchewan Ltd. as sole shareholder of Genesis Grain & Fertilizer GP, Inc. and Genesis Operating GP, Inc. to alter the Bylaws of these two wholly owned companies, which act unfairly prejudiced and disregarded the interests of James Mann, a 50% shareholder of 101187148 Saskatchewan Ltd. [.] (Emphasis added) [ 84 ] Although the originating application requested relief under s. 234, a review of the record of the proceedings convinces us that the only argument presented to the Chambers judge for his determination was that Jason had acted without legal authority.

Accordingly, the submission that Jason’s conduct, although legal, is nonetheless contrary to s. 234 because it defeated James’s reasonable expectation to participate in the management of this aspect of 7148’s business, is a new one made for the first time in this appeal. For this reason, we cannot find that the Chambers judge erred in law by failing to address it. Several factors lead us to this conclusion. [ 85 ] First, the grounds set out in the originating application refer to ss. 103(5) , 110(2) , 142 and 168(5) of the CBCA , as well as ss. 112 and 136 of the SBCA .

However, they contain no reference to s. 234 of the SBCA . The grounds also do not contain any express statements that Jason’s actions defeated James’s reasonable expectations or amounted to oppression, unfair prejudice or unfair disregard of James’s interests. All of this signaled that the dispute presented to the Chambers judge was limited to a determination of the legal authority of Jason to sign the resolutions. [ 86 ] Second, James’s evidence did not directly raise the issue, but instead was focused on the legal authority of Jason to sign the resolutions.

In this regard, as we have noted, his affidavit was brief. In it, he identified the basics of the corporate structure of 7148 and the Genesis companies. He stated in a conclusionary way that if shareholder resolutions are to be passed in either of the Genesis companies, “they first have to be discussed in [7148] between myself and Jason Mann since we equally control the sole shareholder and its vote” (emphasis added). James’s statement that shareholder resolutions “have to be discussed” is presented as a conclusion and is not, itself, evidence of a fact.

The affidavit did assert that, as 50 per cent shareholders of 7148, James and Jason had “routinely both signed resolutions in lieu of meetings pursuant to

Section 136, Resolutions in Lieu of Meeting, of the Business Corporation Act of Saskatchewan, and

Section 142, Resolutions in Lieu of Meeting, of the

Canada Business Corporations Act , when properly presented and agreed upon”. However, he then appended, as a single example, a special resolution of Genesis Holding GP Inc. that had been signed in counterpoint by both himself and Jason on behalf of 7148. Finally, James exhibited a letter he had sent to Jason “setting forth that in [his] belief the four Resolutions are invalid pursuant to both The Business Corporations Act , Saskatchewan and the

Canada Business Corporations Act ”. A review of that letter discloses that James’s complaint was centered on arguments relating to Jason’s legal authority to act without a specific authorizing resolution. [ 87 ] Third, briefs of law were filed with the Chambers judge.

In his, James did not invite the Chambers judge to find oppression on any ground other than that Jason did not have the legal authority to sign the resolutions. [ 88 ] For all these reasons, we see no basis to find that the Chambers judge erred by failing to consider whether, even if 7148’s bylaws authorized Jason, as president, to execute the Genesis shareholder resolutions, doing so was oppressive because it defeated James’s reasonable expectation that Jason would only do so with his consent and agreement. [ 89 ] Finally, we decline to entertain the allegation that Jason oppressed James as a new argument to be decided by this Court in this appeal as if it were a court of first instance.

We do so because we are not satisfied that the record before the Court would not have been different had the issue been squarely raised before the Chambers judge. In this regard, it is one thing for a shareholder to say they have a right to participate in management but another for them to allege that a particular step taken in their absence oppresses their interests. On this basis, it has been held that an exclusion from management, even where a party has a reasonable expectation of participating in it, will not in every case entitle a party to a remedy.

This was one of the points made by Grauer J. in Brown v Boyar , 2009 BCSC 1300 , 58 CBR (5th) 247, when he said as follows: [57] It is, however, unnecessary to resolve each and every conflict in the parties’ testimony. What is abundantly clear to me on the evidence, and I so find, is that the parties had reached a position of stalemate to which both contributed, but which was not due to any unfairness, dishonesty or devious plotting on the part of Mr. Boyar. The conflict between the parties was such that if the project was to have any chance of success, one of them had to take charge.

I conclude that in all of the circumstances, Mr. Boyar, as majority shareholder, was justified in taking over management and in removing Mr. Brown from the Board of Directors. In doing so, he was acting in the best interests of the corporations. If he had not so acted, the enterprise would have collapsed then and there, to the detriment of both parties. [58] Accordingly, it follows that Mr. Boyar’s actions in taking over sole control of the enterprise and in removing Mr.

Brown from the Board of Directors, was axiomatically not oppressive or unfairly prejudicial: … (Citations omitted) [ 90 ] The likelihood that the evidence would have been different had the issue been squarely raised is exemplified by James’s application to adduce new evidence in this appeal. His proposed affidavit includes a detailed narrative as to his perspective on the background of many of the corporations involved in these matters, including what he calls the Genesis Entities. This is the kind of evidence that would be necessary to assess whether his interests have been oppressed as he now alleges.

As we have already stated, because the evidence was available to James when matters were argued before the Chambers judge, it is not admissible as new evidence in this appeal. On the other hand, if the oppression issue had been brought before the Chambers judge for a determination based on James’s proposed new evidence, we have little doubt that it would have prompted Jason and 7148 to file evidence in reply. [ 91 ] In this overall context, it is inappropriate for this Court to adjudicate on the issue as to whether the signing of the Genesis shareholder resolutions was contrary to s. 234(2) of the SBCA . V.

Conclusion

[ 92 ] For the reasons we have given, James’s appeal must be dismissed. Jason and 7148 are each entitled to their costs of the application to adduce new evidence in this appeal and the appeal itself, calculated under Column 3. “Caldwell J.A.” Caldwell J.A. “Leurer J.A.” Leurer J.A. “Tholl J.A.” Tholl J.A.