Canada: Pruner V. Ottawa Hunt And Golf Club: "Orders Under The Corporations Act" Interpreted Broadly To Give Divisional Court Appellate Jurisdiction

In Ontario, a Superior Court order made "under the Corporations Act" is appealed to the Divisional Court. But it is not always clear exactly what constitutes an order made "under the Corporations Act". In its September 14, 2015 decision in Pruner v. Ottawa Hunt and Golf Club, the Ontario Court of Appeal held that this provision should be broadly interpreted. Despite the appeal having been brought in the wrong court, the Court nonetheless reconstituted itself as the Divisional Court and decided the appeal on the merits.

The Background Facts

A golf club member ("Pruner") sought to transfer from a playing membership to a social membership without losing his Class B share. The golf club, citing an internal policy, decided that he needed to resign his membership (and thus lose his share), and then re-apply for the new type of membership.

The Ontario Corporations Act is the antecedent to the Ontario Business Corporations Act ("OBCA"). When the OBCA was enacted in 1971, a handful of corporations remained subject to the Corporations Act, including those that have "objects in whole or in part of a social nature". The golf club is such a corporation. Pruner commenced an application in the Superior Court to compel the golf club to approve his transfer request, arguing that the golf club's policy amounted to a unilateral "variation or restriction of the rights attached to his Class B share" in violation of the Corporations Act. He was unsuccessful before the Superior Court.

Appellate Jurisdiction

After the hearing of the appeal, the Court sought submissions on the applicability of s. 326 of the Corporations Act, which provides that "an appeal lies to the Divisional Court from any order made by a court under this Act." Counsel argued this section was inapplicable. For a unanimous Court, Justice Pardu disagreed for three reasons.

First, Justice Pardu rejected an analogy to the Supreme Court of Canada's decision in Kelvin Energy Ltd. v. Lee. In Kelvin, a settlement had occurred and, subsequently, a court order was obtained under the Quebec Code of Civil Procedure. The Supreme Court held that this order was not made "under the Canada Business Corporations Act". Subsequent Ontario Court of Appeal case law had confined the applicability of Kelvin to cases where the actual substance of the order being appealed was far removed from the applicable corporate law statute. In Justice Pardu's view:

[45]      In the case at bar, the fundamental premise of Mr. Pruner's application was that the Corporations Act – and s. 34(4) in particular – prevents the Board from unilaterally changing the rights associated with his Class B share. The Corporations Act is the lynchpin of his argument and is cited in his notice of application as one of the "grounds for the application".

[46]      The notion that the Corporations Act was central to the application is reinforced in the application judge's reasons. He explained, at para. 32, that his decision "ultimately turns on an interpretation of the Board's power to implement the new policy in accordance with the Corporations Act, the common law, the Club's Supplementary Letters Patent and governing By-Laws" (emphasis added by Justice Pardu).

[47]      Like its successor legislation, the OBCA, the Corporations Act does not contain its own procedural code but rather is subject to the Rules of Civil Procedure. In McLaughlin, O'Connor A.C.J.O. rejected the suggestion that the order under appeal was "made under" rule 26.01 rather than under the OBCA. In my view the same reasoning applies here. Accordingly, I reject the parties' submission that the order under appeal was "made under" Rule 14 rather than under the Corporations Act.

Second, Justice Pardu observed that s. 332 of the Corporations Act "provides for a remedy for an aggrieved shareholder such as Mr. Pruner who is of the view that a corporation has failed to perform a duty" and his application could fairly be framed as seeking relief within the meaning of this provision.

Third, the Ontario Court of Appeal has "taken an expansive view of what constitutes an order 'made under' the OBCA" (para. 50). In Justice Pardu's view, the Corporations Act should be interpreted in the same way.

Ultimately, Justice Pardu decided:

[52]      I conclude for these reasons that the application judge's order dismissing Mr. Pruner's application was an order made under the Corporations Act, and that the appeal should have been brought to the Divisional Court.

[53]      The jurisdiction issue was not detected until after hearing. Because the parties had fully argued the merits of the appeal, this court sought a designation by the Chief Justice of the Superior Court of Justice to constitute the judges of the Court of Appeal in this matter as justices of the Divisional Court pursuant to s. 18(2) of the Courts of Justice Act. As Rosenberg J.A. observed in Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 54 O.R. (3d) 76 (C.A.), at para. 12, this court is rarely reconstituted as Divisional Court: "It is an option that is generally only resorted to where the jurisdictional issue is noticed after the appeal has been argued and is done to save the parties the expense and inconvenience of having to reargue the appeal."

[54]      Having received that designation, the panel is reconstituted as the Divisional Court.

Conclusion

On the merits, Justice Pardu dismissed the appeal, concluding that the policy at issue "cannot be fairly construed as a variation or restriction of the rights associated with Mr. Pruner's Class B share. He is entitled to keep that share, exercise the voting rights associated with it, and golf as much or as little as he wishes" (para. 5).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions