Heydari v. Ingram et al., 2010 NSSC 110

• Judge: Moir, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 21, 2010
• Jurisdiction: Nova Scotia
• Citations: 2010 NSSC 110;(2010), 289 N.S.R.(2d) 97 (SC)

Heydari v. Ingram (2010), 289 N.S.R.(2d) 97 (SC);

    916 A.P.R. 97

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. MR.077

Katayoun Heydari (plaintiff) v. Paul Ingram and Rebecca Ingram (defendants) and Ali Nejat (third Party)

(Hfx. No. 311746; 2010 NSSC 110)

Indexed As: Heydari v. Ingram et al.

Nova Scotia Supreme Court

Moir, J.

March 29, 2010.

Summary:

Heydari owned half the common shares in a company. She was a passive investor. The company paid dividends on the common shares of the two defendants. It paid nothing on Heydari's shares. Heydari sued the defendants for half of the dividends. They defended on the bases that Heydari had agreed, through her husband (the third party), that the defendants were the only shareholders who were to receive money from the company during the relevant period; and that the company would be liable for any dividend payable. Heydari moved for summary judgment.

The Nova Scotia Supreme Court dismissed the motion. The plaintiff did not prove her claim clearly. The defendants raised an arguable defence.

Company Law - Topic 2485

Shareholders - Shares - General - Classes of shares - Rights respecting - Presumption of equality - [See Practice - Topic 5708 ].

Company Law - Topic 3862

Dividends - Entitlement - Presumption of equality - [See Practice - Topic 5708 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - The Nova Scotia Supreme Court considered the principles for summary judgment as reviewed by the court in the context of the 2009 Civil Procedure Rules and noted the jurisprudence that specifically rejected the argument that the new rules changed the approach to summary judgment - "The court has consistently held that the 2009 Civil Procedure Rules codify law on summary judgments and do not change it. Rule 13.04(1) codifies the principle for summary judgment as settled by [the Supreme Court of Canada jurisprudence]: 'A judge who is satisfied that evidence, or the lack of evidence, shows that a statement of claim or defence fails to raise a genuine issue for trial must grant summary judgment'" - See paragraphs 24 to 26.

Practice - Topic 5703

Judgments and orders - Summary judgments - Conditions precedent - Existence of issue to be tried - The Nova Scotia Supreme Court stated that the approach to the question of a genuine issue for trial was somewhat different for motions made by plaintiffs than for motions made by defendants - "The possibility of a motion by a defendant was adopted into our Rules about ten years ago. It was recognized that the approach to a plaintiff's motion could not be exactly mirrored for a defendant's motion ... In that instance, the moving party must show that there is no genuine issue of material fact for trial and, then, the plaintiff must show that its claim has a real chance of success" - The motion in this case was brought by a plaintiff - "In that circumstance, the moving party must prove its claim clearly and, once that is done, the defendants are required to raise an arguable defence. The explicit adoption, in Rule 13.04(4), of a requirement that a responding party put, by evidence, its best foot forward does not change this basic approach to genuine issue for trial in cases of motions by plaintiffs" - See paragraphs 27 and 28.

Practice - Topic 5708

Judgments and orders - Summary judgments - Bar to application - Existence of issue to be tried - The plaintiff owned half the common shares in a company - She was a passive investor - The company paid dividends on the common shares of the two defendants - It paid nothing on the plaintiff's shares - She sued the defendants for half of the dividends - They defended on the bases that the plaintiff had agreed, through her husband (the third party), that the defendants were the only shareholders who were to receive money from the company during the subject period; and that the company would be liable for any dividend payable - The Nova Scotia Supreme Court dismissed the plaintiff's motion for summary judgment - The plaintiff did not prove her claim clearly: the claim appeared to rest on an implied contract with the company - The defendants raised an arguable defence, where the precondition for derogation from the presumption of equality was the division of shares into different classes - It was open to the defendants to argue that their dividends were premised on the agreement that the company issue a new class of shares to them - See paragraphs 29 to 35.

Cases Noticed:

Dalhousie University v. Aylward (2010), 289 N.S.R.(2d) 81; 916 A.P.R. 81; 2010 NSSC 65, refd to. [para. 24].

Spring Garden Holdings Ltd. v. Ryan Duffy's Restaurant Ltd. et al. (2010), 297 N.S.R.(2d) 201; 943 A.P.R. 201 (S.C.), refd to. [para. 24].

National Bank Financial Ltd. v. Potter et al. (2009), 284 N.S.R.(2d) 93; 901 A.P.R. 93 (S.C.), refd to. [para. 24].

Barthe v. National Bank Financial Ltd. - see National Bank Financial Ltd. v. Potter et al.

Little Island Fisheries Ltd. et al. v. Royal Harbour Seafoods Inc. et al. (2009), 284 N.S.R.(2d) 231; 901 A.P.R. 231 (S.C.), refd to. [para. 24].

Leeman v. Baine et al. (2009), 283 N.S.R.(2d) 94; 900 A.P.R. 94 (S.C.), refd to. [para. 24].

Bank of Nova Scotia v. MacKenzie's (A.) Auto Mart Inc. et al., [2009] N.S.R.(2d) Uned. 175 (S.C.), refd to. [para. 24].

Vaughn v. Hayden et al., [2009] N.S.R.(2d) Uned. 141 (S.C.), refd to. [para. 24].

Lumsden v. Barry Cordage Ltd. (2010), 287 N.S.R.(2d) 175; 912 A.P.R. 175; 2010 NSSC 30, refd to. [para. 24].

Crook v. LaFarge Canada Inc. (2009), 285 N.S.R.(2d) 136; 905 A.P.R. 136 (S.C.), refd to. [para. 24].

Bailey v. Canadian Union of Public Employees, Local 759 (2010), 293 N.S.R.(2d) 35 (S.C.), refd to. [para. 24].

Murphy v. Murphy (2009), 277 N.S.R.(2d) 73; 882 A.P.R. 73 (S.C.), refd to. [para. 24].

Hercules Management Ltd. et al. v. Ernst & Young et al. (1997), 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241 (S.C.C.), refd to. [para. 26].

Guarantee Co. of North America v. Gordon Capital Corp. (1999), 247 N.R. 97; 126 O.A.C. 1 (S.C.C.), refd to. [para. 26].

United Gulf Developments Ltd. et al. v. Iskandar et al. (2004), 222 N.S.R.(2d) 137; 701 A.P.R. 137 (C.A.), refd to. [para. 27].

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) et al. (2007), 253 N.S.R.(2d) 144; 807 A.P.R. 144 (C.A.), refd to. [para. 27].

Lameman et al. v. Canada (Attorney General) et al. (2008), 372 N.R. 239; 429 A.R. 26; 421 W.A.C. 26 (S.C.C.), refd to. [para. 28].

McClurg v. Minister of National Revenue (1990), 119 N.R. 101 (S.C.C.), refd to. [para. 30].

Northern Ontario Power Co., Re, [1953] O.J. No. 769 (S.C. Master), refd to. [para. 32].

Canada Tea Co., Re, [1959] O.J. No. 359 (H.C.), refd to. [para. 32].

Federal Dairying Co., Re (1994), 114 Nfld. & P.E.I.R. 174; 356 A.P.R. 174 (P.E.I.T.D.), refd to. [para. 32].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 13.04(1) [para. 26].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Peter Coulthard, Q.C., for the plaintiff and the third party;

Geoffrey Saunders, for the defendants.

This motion was heard on January 21, 2010, by Moir, J., of the Nova Scotia Supreme Court, who delivered the following decision on March 29, 2010.