Grand River Ent. v. Burnham, (2005) 197 O.A.C. 168 (CA)

• Judge: Catzman, Laskin and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 09, 2005
• Jurisdiction: Ontario
• Citations: (2005), 197 O.A.C. 168 (CA)

Grand River Ent. v. Burnham (2005), 197 O.A.C. 168 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. MR.062

Grand River Enterprises a Partnership carrying on business in the Province of Ontario the Partners of which are members of the First Nations of Canada and Grand River Enterprises Six Nations Ltd. (plaintiffs/appellants) v. Sydney Burnham (defendant/respondent)

Sidney Burnham (defendant/ plaintiff by counterclaim / respondent ) v. Grand River Enterprises a Partnership carrying on business in the Province of Ontario the Partners of which are members of the First Nations of Canada, Grand River Enterprises Six Nations Ltd. and Wayne (Victor) Bomberry, Kenny Hill, Jerry Montour, Peter Montour, Don Skye, Scott Smith and Curtis Styres ( plaintiffs / defendants by counterclaim / appellants )

(M32025 (M31880); M32026; (C42624))

Indexed As: Grand River Enterprises, A Partnership et al. v. Burnham

Ontario Court of Appeal

Catzman, Laskin and Armstrong, JJ.A.

March 16, 2005.

Summary:

Grand River Enterprises, a partnership of Grand River and members of the First Nations of Canada, commenced an action against Burnham, alleging that he had wrongfully terminated a lease under which the partnership had built, occupied and maintained a building on property Burnham owned. Burnham defended the action and brought a counterclaim, alleging oppression under the Canada Business Corporations Act (CBCA), in that he had been denied participation in the management of the partnership, denied information about its financial affairs and denied dividends and other distribution of profits. Burnham brought a motion for relief under s. 241 of the CBCA.

The Ontario Superior Court, in a decision reported [2004] O.T.C. 929, granted the motion, ordering that Grand River pay Burnham an interim payment of $988,688 on account of shareholder benefits, to disclose to Burnham specified items of financial information, and to produce a number of Grand River's representatives for examination for discovery regarding its financial affairs. Grand River served a notice of appeal asking that the finding of oppression and the order requiring it to pay the $988,668 be set aside. Further, to cover the contingency that the order might be found to be interlocutory rather than final, Grand River moved for leave to appeal from the finding of oppression and the payment order. Burnham moved to quash Grand River's appeal and the motion for leave to appeal.

The Ontario Court of Appeal held that the order under appeal was interlocutory and that an appeal was available only with leave of the Court of Appeal. The court granted the motion to quash the appeal but the motion to quash the motion for leave to appeal was dismissed. The court directed that the motion for leave to appeal be submitted in the usual manner to a panel of the Court of Appeal for consideration.

Company Law - Topic 9730

Actions against corporations and directors - Practice - Appeals - Grand River Enterprises, a partnership, sued Burnham - Burnham counterclaimed alleging oppression under the Canada Business Corporations Act (CBCA) and sought relief under s. 241 of the CBCA - A motions judge granted an order, found that there was oppression and ordered that Grand River make an interim payment to Burnham and disclose certain information - Grand River filed a notice of appeal, and to cover the contingency that the order might be found to be interlocutory rather than final, also moved for leave to appeal - Burnham moved to quash Grand River's appeal and the motion for leave to appeal - The Ontario Court of Appeal held that the order under appeal was interlocutory and that an appeal was available only with leave from the Court of Appeal - The court granted the motion to quash the appeal but the motion to quash the motion for leave to appeal was dismissed - The court directed that the motion for leave to appeal be submitted in the usual manner to a panel of the Court of Appeal for consideration.

Company Law - Topic 9730

Actions against corporations and directors - Practice - Appeals - Section 249 of the Canada Business Corporations Act as amended in 2001, provided that: "(1) an appeal lies to the court of appeal of a province from any final order made by a court of that province under this Act" and "(2) An appeal lies to the court of appeal of a province from any order other than a final order made by a court of that province, only with leave of the court of appeal in accordance with the rules applicable to that court" - The Ontario Court of Appeal rejected the argument that an appeal from an interlocutory order under the CBCA lay, with leave, to the Divisional Court - Rather, the court held that in Ontario, the court to which an appeal could be taken, as of right if the order was final, and with leave if it was not, remained the Court of Appeal - See paragraphs 14 to 23.

Words and Phrases

Court of appeal - The Ontario Court of Appeal discussed the meaning of this phrase as used in s. 249 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44 - See paragraphs 14 to 23.

Cases Noticed:

Lake v. Lake, [1955] 2 All E.R. 538 (C.A.), refd to. [para. 10].

Canadian Express Ltd. v. Blair et al. (1991), 53 O.A.C. 397; 6 O.R.(3d) 212 (Div. Ct.), refd to. [para. 10].

Ferguson v. Imax Systems Corp. (1982), 38 O.R.(2d) 59 (Div. Ct.), refd to. [para. 17].

Budd v. Gentra Inc. et al. (2001), 152 O.A.C. 25; 56 O.R.(3d) 414 (Div. Ct.), refd to. [para. 19].

Loewen, Ondaatje, McCutcheon & Co. v. Sparling et al., [1992] 3 S.C.R. 235; 143 N.R. 191; 51 Q.A.C. 49; 97 D.L.R.(4th) 616, refd to. [para. 21].

Kelvin Energy Ltd. v. Lee - see Loewen, Ondaatje, McCutcheon & Co. v. Sparling et al.

Statutes Noticed:

Canada Business Corporations Act, R.S.C. 1985, c. C-44, sect. 249 [para. 14].

Authors and Works Noticed:

Williston, W.B., and Rolls, R.J., The Law of Civil Procedure (1970), vol. 2, p. 1025 [para. 10].

Counsel:

Brian Duxbury and Stephen Chisholm, for the plaintiffs/appellants/defendants by counterclaim;

Peter C. Wardle and Marlo L. Kravetsky, for the defendant/respondent/plaintiff by counterclaim.

This appeal was heard on February 9, 2005, before Catzman, Laskin and Armstrong, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by Catzman, J.A., for the court and released on March 16, 2005.