Allard v. Shaw Communications Inc. et al., 2010 ABCA 316

• Judge: Côté, Picard and Ritter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 14, 2010
• Citations: 2010 ABCA 316;(2010), 493 A.R. 182 (CA)

Allard v. Shaw Comm. Inc. (2010), 493 A.R. 182 (CA);

      502 W.A.C. 182

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.008

Peter Andrew Allard (appellant/applicant) v. Shaw Communications Inc. and CIBC Mellon Trust Company (respondent/respondent)

(1001-0030-AC; 2010 ABCA 316)

Indexed As: Allard v. Shaw Communications Inc. et al.

Alberta Court of Appeal

Côté, Picard and Ritter, JJ.A.

October 28, 2010.

Summary:

Allard, a shareholder of Shaw Communications Inc., made a request for access to the shareholders list of Shaw. Shaw did not comply with that request. Allard issued an Originating Notice to compel delivery of a copy of the list.

The Alberta Court of Queen's Bench, in a decision reported at [2009] A.R. Uned. 832, declined to order Shaw to give Allard a copy of the shareholders list. Allard appealed.

The Alberta Court of Appeal dismissed the appeal.

Company Law - Topic 2005

Shareholders - General - Shareholders or members list - Allard, a shareholder of Shaw Communications Inc., made a request for access to Shaw's shareholders list - Shaw did not comply with the request - Allard issued an Originating Notice to compel delivery of a copy of the list - Allard admitted that he might use the list to lobby Shaw's shareholders about a dispute between Shaw and a supplier, and to warn them that there might be a breach of Shaw's license from the CRTC - Setion 23 of the Alberta Business Corporations Act provided rights to get copies of shareholders lists, but a list obtained under that section could only be used for one of three purposes - Two were irrelevant to this case, and the third was "any other matter relating to the affairs of the corporation" - The word "affairs" was defined as "the relationships among a corporation, its affiliates and the shareholders, directors and officers of those bodies corporate, but does not include the business carried on by those bodies corporate" - The chambers judge declined to order Shaw to give Allard a copy of the shareholders list - The chambers judge held that the matter fell within the category of "business" and not "affairs" and he found that Allard intended to use the shareholders' lists for a purpose connected to the business of Shaw, which was an unlawful use under s. 23(11) - Allard appealed - The Alberta Court of Appeal dismissed the appeal - The remedy was discretionary and the chambers judge neither erred nor acted unreasonably.

Company Law - Topic 2005

Shareholders - General - Shareholders or members list - Allard, a shareholder of Shaw Communications Inc., issued an Originating Notice to compel delivery of a copy of Shaw's shareholders list - Section 23 of the Alberta Business Corporations Act provided rights to get copies of shareholders lists, but a list obtained under that section could only be used for certain purposes - The chambers judge declined to order Shaw to give Allard a copy of the shareholders list - Allard appealed - The Alberta Court of Appeal dismissed the appeal - The court discussed the procedural issue arising from the fact that Shaw did not start its own cross-suit for relief from the obligations of s. 23, nor did it file a notice of motion in Allard's proceeding - The court stated that "It has never been the practice in Alberta to require formal notice of the grounds for opposition to a pending Originating Notice or an ordinary motion, still less to require a cross-suit. The Rules of Court do not call for that. ... We cannot see any benefit to having such a cross-proceeding" - Further, the responding affidavit by Shaw's employee said that it was made on behalf of Shaw "for an Order directing that [the respondents] are relieved of any obligation to otherwise provide such information ..." - That in substance was a notice of motion - See paragraphs 9 to 13.

Company Law - Topic 2005

Shareholders - General - Shareholders or members list - Allard, a shareholder of Shaw Communications Inc., issued an Originating Notice to compel delivery of a copy of Shaw's shareholders list - Section 23 of the Alberta Business Corporations Act provided rights to get copies of shareholders lists but a list obtained under that section could only be used for certain purposes - The chambers judge declined to order Shaw to give Allard a copy of the shareholders list - He found that Allard intended to use the shareholders list for a purpose connected to the business of Shaw, which was an unlawful use under s. 23(11) of the Act - Allard appealed - The Alberta Court of Appeal dismissed the appeal - Allard's factum had argued reversal of the onus of proof - The court stated that "That may be arguable here, especially the onus of giving some evidence (as opposed to the more substantive onus at the end of the evidence). But any such reversal has no practical effect here. This is not a case where neither party filed evidence, and so the issue would merely be who had had the duty to begin the minuet. Both parties did file evidence, and the chambers judge reasonably evaluated it. Onus of proof has practical effect on the end result only if there is no evidence at all, or if the evidence is evenly balanced. As noted, neither is true here" - See paragraph 14.

Courts - Topic 583

Judges - Duties - Re reasons for decisions - Section 23 of the Alberta Business Corporations Act provided rights to get copies of shareholders lists - The chambers judge declined to order Shaw Communications Inc. to give Allard a copy of its shareholders list - The judge found that Allard intended to use the shareholders list for a purpose connected to the business of Shaw, which was an unlawful use under s. 23(11) of the Act - Allard appealed - The Alberta Court of Appeal dismissed the appeal - The court stated that "There is a complaint that the chambers judge's written Reasons are too skimpy on the topic of the use to which the shareholders' list would be put. But the content of the duty to give reasons is pragmatic, not theoretical, nor academic. The respondent's factum summarizes the evidence, which was neither long, nor buried, nor unknown to the parties. It amply supports the chambers judge's fact finding and inference. The evidence ended by not really clashing. So no analysis was needed, and bulking out the Reasons of the chambers judge (or of this Court) with a two-page précis of that evidence would simply kill trees and spill ink" - See paragraph 15.

Practice - Topic 3050

Applications and motions - General - [See second Company Law - Topic 2005 ].

Practice - Topic 9428

Appeals - Grounds of appeal - Objection to reasons for decision - [See Courts - Topic 583 ].

Cases Noticed:

Greens At Tam O'Shanter Inc. v. Canada (1999), 163 F.T.R. 311; 99 G.T.C. 7100 (F.C.), refd to. [para. 10].

Durrani v. Augier et al., [2001] O.J. No. 1347 (C.A.), refd to. [para. 10].

Lexogest Inc. et al. v. Manitoba (Attorney General) et al. (1990), 66 Man.R.(2d) 227; 71 D.L.R.(4th) 538 (Q.B.), refd to. [para. 10].

Canadian Union of Public Employees, Local 8 et al. v. Health Region No. 4 (1997), 200 A.R. 175; 146 W.A.C. 175 (C.A.), refd to. [para. 10].

Singh v. Jennings Cap. - see Matco Capital Ltd. v. Interex Oilfield Services Ltd. et al.

Matco Capital Ltd. v. Interex Oilfield Services Ltd. et al., [2008] A.R. Uned. 349; 2008 ABCA 428, refd to. [para. 10].

Houg Alberta Ltd. v. 417034 Alberta Ltd. (1991), 117 A.R. 196; 2 W.A.C. 196 (C.A.), refd to. [para. 12].

EnCana Corp. v. Douglas, [2006] 7 W.W.R. 59; 490 AR 152; 497 WAC 152; 2005 ABCA 439, consd. [para. 20].

Santarsieri (Michael) Inc. et al. v. Unicity Mall Ltd., [2000] 1 W.W.R. 228; 142 Man.R.(2d) 63; 212 W.A.C. 63 (C.A.), refd to. [para. 29].

Denovan v. Lee (1989), 65 D.L.R.(4th) 103 (B.C.C.A.), refd to. [para. 29].

Massie & Renwick Ltd. v. Underwriters' Survey Bureau Ltd. et al., [1937] S.C.R. 265, refd to. [para. 29].

Shepherd Homes Ltd. v. Sandham (No. 1), [1971] Ch. 340, refd to. [para. 29].

Capital Regional District v. Smith et al. (1998), 115 B.C.A.C. 76; 189 W.A.C. 76; 168 D.L.R.(4th) 52 (C.A.), refd to. [para. 29].

Trawick and Trawick v. Mastromonaco (1983), 45 A.R. 276 (Q.B.), refd to. [para. 29].

Doherty v. Allman (1878), 3 App. Cas. 709 (H.L.), refd to. [para. 29].

Davies v. Makuna (1885), 54 L.J. Ch. 1148; 29 Ch. D. 596 (C.A.), refd to. [para. 32].

Lecuyer v. Alberta Junior "A" Hockey League (1977), 3 A.R. 213 (T.D.), refd to. [para. 32].

McKinnon v. Walker, [1951] 3 D.L.R. 577 (Ont. Prov. Ct.), refd to. [para. 32].

Delta Hotels Ltd. v. Okabe Canada Investments Co. et al. (1992), 131 A.R. 118; 25 W.A.C. 118 (C.A.), refd to. [para. 32].

Statutes Noticed:

Business Corporations Act, R.S.A. 2000, c. B-9, sect. 1(a), sect. 23 [para. 4].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1955), vol. 21, p. 380, para. 798 [para. 32].

Snell's Equity (31st Ed. 2005), pp. 398 [para. 29]; 402 [para. 32].

Counsel:

C.J. Popowich and E.P. Groody, for the appellant/applicant;

T.J. Coates and K.A. Lambert, for the respondent/respondent.

This appeal was heard on October 14, 2010, before Côté, Picard and Ritter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was filed on October 28, 2010.