Hurst et al. v. Société Nationale de l'Amiante et al., 2008 ONCA 573

JudgeFeldman, Cronk and Blair, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateAugust 01, 2008
JurisdictionOntario
Citations2008 ONCA 573;(2008), 269 O.A.C. 236 (CA)

Hurst v. Soc. Nat. de l'Amiante (2008), 269 O.A.C. 236 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.045

F. Warren Hurst and Carmand Normand, and F. Warren Hurst on Behalf of all other minority shareholders of Asbestos Corporation Limited, with similar interest (plaintiffs/appellants) v. Société Nationale de l'Amiante, Province of Quebec, Mines S.N.A. Inc., General Dynamics Corporation, Asbestos Corporation Limited, G.W. Fiske, G.E. MacDonald, M.J. O'Brien, W.G. Sullivan, B. Carier, D. Perlstein, C. Tremblay, J. Paquin, M. Dorais, D.A. McCammon, J. Parizeau, M. Caron, D.S. Lewis and O.C. Boiluea (defendants/respondents)

(C46150; 2008 ONCA 573)

Indexed As: Hurst et al. v. Société Nationale de l'Amiante et al.

Ontario Court of Appeal

Feldman, Cronk and Blair, JJ.A.

August 1, 2008.

Summary:

The appellants were minority shareholders of Asbestos Corporation Ltd. The province of Quebec gained control of the corporation in 1982 after it purchased the majority interest held by General Dynamics Corp. However, Quebec did not purchase the shares held by minority shareholders, and the value of those shares declined. This oppression action was one of six proceedings brought before courts or tribunals by or on behalf of the minority shareholders in an attempt to obtain compensation. The action was commenced in December 1987, but was not pursued by the appellants until 2003, after the other five proceedings had been wholly exhausted. The respondents moved to dismiss or stay the action on a number of grounds, including issue estoppel, no cause of action for oppression, forum non conveniens, delay and abuse of process.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. 883, dismissed the action on the basis of delay. In the alternative, the court stayed the action on the basis of abuse of process and the fact that Ontario was not the appropriate forum. The court also held that all of the claims had been determined in the prior proceedings and were governed by the doctrine of issue estoppel and that the claim for an oppression remedy did not disclose a reasonable cause of action. The appellants appealed.

The Ontario Court of Appeal dismissed the appeal. There was no basis to interfere with the motion judge's conclusion that the action should be dismissed for delay or her conclusion that the action should be stayed based on forum non conveniens or as an abuse of process. It was therefore unnecessary for the court to decide whether the requirements for issue estoppel were met in this case, or on the availability of a cause of action for oppression.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The province of Quebec gained control of Asbestos Corporation Ltd. in 1982 after it purchased the majority interest held by General Dynamics Corp. - However, Quebec did not purchase the shares held by minority shareholders, and the value of those shares declined - The appellants (minority shareholders) brought an oppression action - The motion judge concluded that Quebec was the most convenient and appropriate forum and stayed the action on the basis that Ontario was not the forum conveniens - While the appellants argued that they had a juridical advantage in Ontario because the action was statute barred in Quebec, the motion judge found that there was no reason for the appellants not to have commenced this action in Quebec at the time it was brought in Ontario and it was not open to the appellants to rely on the tolling of the limitation period in Quebec as a legitimate juridical disadvantage - The Ontario Court of Appeal dismissed an appeal - The court stated that "the appellants allowed the jurisdiction issue to lay dormant until 2005, knowing that they were losing their opportunity to litigate the oppression case in Quebec. It is only because of the appellants' choice not to begin an oppression action in Quebec within the limitation period that loss of juridical advantage became a factor in the forum conveniens analysis. As a result, it is not a factor that should carry much weight" - See paragraphs 50 to 52.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - The province of Quebec gained control of Asbestos Corporation Ltd. (ACL) in 1982 after it purchased the majority interest held by General Dynamics Corp. - However, Quebec did not purchase the shares held by minority shareholders, and the value of those shares declined - The appellants (minority shareholders) brought an oppression action - The motion judge concluded that Quebec was the most convenient and appropriate forum and stayed the action on the basis that Ontario was not the forum conveniens - The motion judge noted that neither the appellants nor a significant number of current minority shareholders of ACL were residents of Ontario - ACL was based in Quebec and the majority of its shareholders were not Ontario residents - All the relevant events occurred in Quebec, or in Missouri - The respondents' surviving witnesses were all located in Quebec or the U.S. - Although copies of relevant documents were available in Ontario, the originals were outside Ontario - The motion judge also considered an opinion of the Ontario Securities Commission that the transaction was not connected to Ontario - The Ontario Court of Appeal found no basis to interfere with the motion judge's conclusion to stay the action based on forum non conveniens - Weighing all the above factors along with the tenuous connection of the claims to Ontario, the respondents had established that Quebec was the most convenient and appropriate forum - See paragraphs 46 to 55.

Conflict of Laws - Topic 3604

Corporations and partnerships - General - Forum conveniens - [See second Conflict of Laws - Topic 1664 ].

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See third Practice - Topic 5360 ].

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - The appellants were minority shareholders of Asbestos Corporation Ltd. - The province of Quebec gained control of the corporation in 1982 after it purchased the majority interest held by General Dynamics Corp. - However, Quebec did not purchase the shares held by minority shareholders, and the value of those shares declined - This oppression action was one of six proceedings brought before courts or tribunals by or on behalf of minority shareholders in an attempt to obtain compensation - The action was commenced in December 1987, but was not pursued by the appellants until 2003, after the other five proceedings had been wholly exhausted - The motion judge found that the action constituted an abuse of process for a number of reasons - First, there was inexcusable delay on the part of the appellants - Second, the appellants appeared to recognize that Ontario was not the appropriate forum because they initially sued and proceeded in Quebec and in Delaware and only issued this claim as a precautionary measure - Third, the major issues in the claim had already been fully investigated and litigated in the other regulatory and judicial proceedings, all of which found that no remedy was available - Finally, subjecting the respondents to another lawsuit in respect of the same series of events that occurred between 1977 and 1982 should not be permitted in the interests of judicial economy - The Ontario Court of Appeal held that the motion judge did not err in staying the action as an abuse of process - The same issues regarding the actions of the respondents and the reasonable expectations of the minority shareholders had been litigated in several proceedings - The motion judge's decision that the appellants' action was an abuse of process was not dependant on her finding that the conditions for issue estoppel were met - Rather, it was the combination of the inexcusable delay and the inappropriate forum, together with the attempt to repackage the same set of facts and circumstances that had been considered by two securities commissions and by the highest courts in Ontario and Quebec, as well as the Supreme Court of Canada, which led her to conclude that the action was an abuse of process - The motion judge made no error in her analysis or in her conclusion - See paragraphs 56 to 60.

Practice - Topic 5277.1

Trials - General - Stay of proceedings - Abuse of process - [See Courts - Topic 2015 ].

Practice - Topic 5283

Trials - General - Stay of proceedings - Jurisdiction - [See third Practice - Topic 5360 ].

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - This oppression action was one of six proceedings brought before courts or tribunals by or on behalf of the appellants (minority shareholders of Asbestos Corporation Ltd.), including proceedings before Ontario Securities Commission and the Commission des valeurs mobilières du Québec - The action was commenced in December 1987, but was not pursued by the appellants until 2003, after the other five proceedings had been wholly exhausted - The motion judge dismissed the action on the basis of delay - The appellants appealed, challenging the motion judge's finding that there was no agreement among counsel to hold the action in abeyance pending the completion of the administrative proceedings in both Ontario and Quebec - They also submitted that to the extent the evidence was inconsistent, the motion judge was not entitled to make a finding of fact, but rather a trial of the issue was required - The Ontario Court of Appeal rejected the appellants' arguments - The motion judge held that the appellants failed to establish the existence of an abeyance agreement on a balance of probabilities - The motion judge concluded that the appellants decided not to pursue this action until they had exhausted their claims in the other forums - There was no basis to interfere with that finding - It was supported by the record and contained no palpable and overriding error - There was no serious issue of credibility and the motion judge was entitled to make the findings she did based on the record before her - See paragraphs 34 to 40.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - This oppression action was one of six proceedings brought before courts or tribunals by or on behalf of the appellants (minority shareholders of Asbestos Corporation Ltd.) - The action was commenced in December 1987, but was not pursued by the appellants until 2003, after the other five proceedings had been wholly exhausted - The motion judge dismissed the action on the basis of delay - The appellants appealed - The Ontario Court of Appeal dismissed the appeal - The motion judge correctly rejected the suggestion that there was an onus on the respondents to move the case forward, or that they had waived their right to object to delay by not doing so - Without an agreement to hold the action in abeyance and to shift the responsibility to move it forward to the respondents, the risk of the consequences of delay remained with the appellants - The motion judge made specific findings of presumptive prejudice to the respondents because of the passage of time, as well as actual prejudice because of the advanced age, poor health and death of critical defence witnesses - The fact that there was considerable documentary evidence as well as some transcripts of viva voce evidence given in prior proceedings was found not to be a complete answer, particularly because some issues were not previously canvassed - Those findings were well based in the record and were not susceptible to challenge on appeal - See paragraphs 41 to 45.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - This oppression action was one of six proceedings brought before courts or tribunals by or on behalf of the appellants (minority shareholders of Asbestos Corporation Ltd.) - The action was commenced in December 1987, but was not pursued by the appellants until 2003, after the other five proceedings had been wholly exhausted - The motion judge dismissed the action on the basis of delay - The motion judge addressed the submission that the respondents could not move for dismissal for delay when they were in default of delivering their statements of defence - She found that the respondents were not in default because, after the appellants had granted the respondents a brief indulgence, the appellants never demanded the statements of defence - She also relied on the jurisdiction of the court to stay an action pursuant to s. 106 of the Courts of Justice Act - On appeal, the Ontario Court of Appeal stated that "The motion judge was correct on these issues. This court has recently discussed the importance of proceeding with litigation in a timely manner and its inherent jurisdiction to control its own process and to dismiss actions for delay" - See paragraphs 42 to 43.

Practice - Topic 5362

Dismissal of action - Grounds - General and want of prosecution - Prejudice to defendant - [See second Practice - Topic 5360 ].

Practice - Topic 5365

Dismissal of action - Grounds - Want of prosecution - Bars - Default by defendant - [See third Practice - Topic 5360 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Novel or important point - The appellants were minority shareholders of Asbestos Corporation Ltd. - The province of Quebec gained control of the corporation in 1982 after it purchased the majority interest held by General Dynamics Corp. - However, Quebec did not purchase the shares held by minority shareholders, and the value of those shares declined - This oppression action was one of six proceedings brought before courts or tribunals by or on behalf of minority shareholders in an attempt to obtain compensation - The action was commenced in December 1987, but was not pursued by the appellants until 2003, after the other five proceedings had been wholly exhausted - The motion judge dismissed the action on the basis of delay - In the alternative the action was stayed on the basis of abuse of process and the fact that Ontario was not the appropriate forum - The motion judge ordered costs against the appellants on the partial indemnity scale - The appellants challenged the costs order on appeal - The appellants had asked the motion judge to order no costs against them because this case was similar to a class action, and the case raised novel questions of law, was a test case and involved a matter of public interest - They also argued that previous findings of the Ontario Securities Commission and the Supreme Court of Canada that the appellants had been treated unfairly as minority shareholders, though not illegally, should warrant an award of no costs against them - The Ontario Court of Appeal held that there was no basis to interfere with the costs award - The motion judge gave full reasons for rejecting the appellants' arguments - The motion judge found that the issues raised were difficult but not novel, and that the interests at stake were no broader than those of the minority shareholders who sought the relief - She decided to take into account the finding of unfair treatment not by awarding no costs, but by refusing to award substantial indemnity costs in favour of the respondent, GD US, which had requested costs on the higher scale because of forum shopping and the fact that the allegations had been litigated elsewhere - In the end, the motion judge awarded amounts on the partial indemnity scale substantially lower than those requested by the respondents - See paragraphs 71 to 76.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Public interest or test case - [See Practice - Topic 7029 ].

Practice - Topic 7037

Costs - Party and party costs - Entitlement to - Factors or circumstances reducing entitlement - [See Practice - Topic 7029 ].

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to - Class or representative actions - [See Practice - Topic 7029 ].

Cases Noticed:

Marché d'Alimentation Denis Thériault ltée et al. v. Giant Tiger Stores Ltd. (2009), 247 O.A.C. 22; 87 O.R.(3d) 660 (C.A.), refd to. [para. 43].

Muscutt et al. v. Courcelles et al. (2002), 160 O.A.C. 1; 60 O.R.(3d) 20 (C.A.), refd to. [para. 46].

Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.), [1993] 1 S.C.R. 897; 150 N.R. 321; 23 B.C.A.C. 1; 39 W.A.C. 1, refd to. [para. 50].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 58].

Shaw v. BCE Inc. et al., [2004] O.T.C. 28; 42 B.L.R.(3d) 107 (Sup. Ct.), refd to. [para. 64].

Kerr et al. v. Danier Leather Inc. et al., [2007] 3 S.C.R. 331; 368 N.R. 204; 231 O.A.C. 348; 2007 SCC 44, refd to. [para. 74].

Counsel:

Peter R. Jervis, George S. Glezos and Meredith Jones for the appellants;

Katherine L. Kay and Alexander D. Rose for the respondent, General Dynamics Corporation;

James C. Tory and Andrew Gray for the respondents, Société Nationale de L'Amiante, Mines S.N.A. Inc., and Sa Majesté du Chef du Québec.

This appeal was heard on December 10 and 11, 2007, before Feldman, Cronk and Blair, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Feldman, J.A., and was released on August 1, 2008.

To continue reading

Request your trial
10 practice notes
  • Court Of Appeal Summaries (September 27 ' October 1)
    • Canada
    • Mondaq Canada
    • October 5, 2021
    ...2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14 Wakeling v. Desjardins General Insurance, 2021 ONCA 672 Keywords: Torts, Intr......
  • Court Of Appeal Summaries (September 27 ' October 1)
    • Canada
    • Mondaq Canada
    • October 5, 2021
    ...2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14 Wakeling v. Desjardins General Insurance, 2021 ONCA 672 Keywords: Torts, Intr......
  • Yip v. HSBC Holdings plc, 2017 ONSC 5332
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • September 11, 2017
    ...case, and, in any event, is overmatched and overrun by the Ontario Court of Appeal’s decision in Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, aff’g [2006] O.J. No. 3998 [260] The facts of Gotch v. Ramirez, supra were that the plaintiff Gotch’s vehicle and the defendant Ramirez’s ......
  • Johnston v. Stewart McKelvey Stirling Scales, (2012) 331 Nfld. & P.E.I.R. 101 (PEISC)
    • Canada
    • November 28, 2011
    ...Tiger Stores Ltd. (2007), 247 O.A.C. 22; 2007 ONCA 695, refd to. [para. 57]. Hurst et al. v. Société Nationale de l'Amiante et al. (2008), 269 O.A.C. 236; 2008 ONCA 573, refd to. [para. 60]. Susin v. Baker and Baker et al., [2003] O.T.C. 287; 2003 CarswellOnt 1248 (Sup. Ct.), refd to. [para......
  • Request a trial to view additional results
8 cases
  • Yip v. HSBC Holdings plc, 2017 ONSC 5332
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • September 11, 2017
    ...case, and, in any event, is overmatched and overrun by the Ontario Court of Appeal’s decision in Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, aff’g [2006] O.J. No. 3998 [260] The facts of Gotch v. Ramirez, supra were that the plaintiff Gotch’s vehicle and the defendant Ramirez’s ......
  • Johnston v. Stewart McKelvey Stirling Scales, (2012) 331 Nfld. & P.E.I.R. 101 (PEISC)
    • Canada
    • November 28, 2011
    ...Tiger Stores Ltd. (2007), 247 O.A.C. 22; 2007 ONCA 695, refd to. [para. 57]. Hurst et al. v. Société Nationale de l'Amiante et al. (2008), 269 O.A.C. 236; 2008 ONCA 573, refd to. [para. 60]. Susin v. Baker and Baker et al., [2003] O.T.C. 287; 2003 CarswellOnt 1248 (Sup. Ct.), refd to. [para......
  • Charlotte County Hospitality Partnership v. Coles Associates Ltd., 2018 NSSC 254
    • Canada
    • Supreme Court of Nova Scotia (Canada)
    • October 16, 2018
    ...see Kennedy v. Hughes, [2006] O.J. No. 3870 at para. 12(v)-(vi) (S.C.); Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573 at paras. 92  It appears that the weight attached to the juridical advantage factor when considering the expiration of a limitation period in an......
  • Fernandes v Wal-Mart Canada Corp., 2017 MBCA 96
    • Canada
    • Court of Appeal (Manitoba)
    • October 3, 2017
    ...Well Service Ltd, 2000 ABCA 124 at para 7, leave to appeal to SCC refused, 2000 CarswellAlta 1289; Hurst v Socit Nationale de L’Amiante, 2008 ONCA 573 at paras 51-52; West Van Inc at paras 3, 35, 37; and Cook v 1293037 Alberta Ltd (Traveller’s Cloud 9), 2016 ONCA 836 at para 9.)(c) Analysis......
  • Request a trial to view additional results
2 firm's commentaries
  • Court Of Appeal Summaries (September 27 ' October 1)
    • Canada
    • Mondaq Canada
    • October 5, 2021
    ...2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14 Wakeling v. Desjardins General Insurance, 2021 ONCA 672 Keywords: Torts, Intr......
  • Court Of Appeal Summaries (September 27 ' October 1)
    • Canada
    • Mondaq Canada
    • October 5, 2021
    ...2014 ONCA 116, Krebs v. Cote, 2021 ONCA 467, Garcia v. Tahoe Resources Inc., 2017 BCCA 39, Hurst v. Société Nationale de L'Amiante, 2008 ONCA 573, McNamee v. McNamee, 2011 ONCA 533, Martin v. Sansome, 2014 ONCA 14 Wakeling v. Desjardins General Insurance, 2021 ONCA 672 Keywords: Torts, Intr......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT