Kent et al. v. Maple Minerals Corp. et al., 2014 NBQB 247

Judge:Glennie, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:October 16, 2014
Jurisdiction:New Brunswick
Citations:2014 NBQB 247;(2014), 434 N.B.R.(2d) 1 (TD)
 
FREE EXCERPT

Kent v. Maple Minerals Corp. (2014), 434 N.B.R.(2d) 1 (TD);

    434 R.N.-B.(2e) 1; 1132 A.P.R. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2015] N.B.R.(2d) TBEd. MY.021

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MY.021

Margaret Kent and Ross F. Burns (plaintiffs) v. Maple Minerals Corporation, MMC Holding, Maxim Finskiy, Francis Scola, Trevali Mining (New Brunswick) Ltd. and Trevali Mining Corporation (defendants)

(F/C/146/2012; 2014 NBQB 247; 2014 NBBR 247)

Indexed As: Kent et al. v. Maple Minerals Corp. et al.

Répertorié: Kent et al. v. Maple Minerals Corp. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Glennie, J.

October 20, 2014.

Summary:

Résumé:

The plaintiffs asserted that the defendants had agreed to provide them with a 25% carried interest in Maple Minerals Corp. (Maple) as a "finder's fee" if Maple was successful in acquiring a certain mining property. The mine was acquired by Maple, which was wholly owned by MMC. Maple, TMC and Trevali NB entered into a combination agreement under which Trevali NB became the mine's owner. Trevali NB was a wholly owned subsidiary of TMC. The consideration for the combination agreement was paid by TMC. MMC was a substantial shareholder of TMC. Maple made representations and warranties in favour of TMC. MMC guaranteed Maple's obligations. To secure the guarantee, MMC placed 3,967,399 shares of TMC in escrow. The plaintiffs asserted that, had their "finder's fee" agreement been honoured, they would have been entitled to 25% of TMC's shares. They sought a preservation order under rule 35.02 preserving the shares, which were due to be released from escrow.

The New Brunswick Court of Queen's Bench, Trial Division, denied the motion on the basis that the escrowed shares did not constitute the subject matter of the dispute.

Editor's Note: For a related decision, see (2012), 392 N.B.R.(2d) 336; 1016 A.P.R. 336.

Practice - Topic 3377

Interim proceedings - Preservation of property - When order for preservation of property available - The plaintiffs asserted that the defendants had agreed to provide them with a 25% carried interest in Maple Minerals Corp. (Maple) as a "finder's fee" if Maple was successful in acquiring a certain mining property - The mine was acquired by Maple, which was wholly owned by MMC - Maple, TMC and Trevali NB entered into a combination agreement under which Trevali NB became the mine's owner - Trevali NB was a wholly owned subsidiary of TMC - The consideration for the combination agreement was paid by TMC - MMC was a substantial shareholder of TMC - Maple made representations and warranties in favour of TMC - MMC guaranteed Maple's obligations - To secure the guarantee, MMC placed 3,967,399 shares of TMC in escrow - The plaintiffs asserted that, had their "finder's fee" agreement been honoured, they would have been entitled to 25% of TMC's shares - They sought a preservation order under rule 35.02 preserving the shares, which were due to be released from escrow - The New Brunswick Court of Queen's Bench, Trial Division, denied the motion - The escrowed shares were owned solely by MMC - The plaintiffs claimed 25% of the shares of TMC - The escrowed shares did not constitute the subject matter of the dispute - This was fatal to the motion for a preservation order - There was no serious issue to be tried regarding the escrowed shares - As the plaintiffs had no "right, title or interest" in the shares, the balance of convenience favoured the defendants - See paragraphs 50 to 80.

Procédure - Cote 3377

Procédures provisoires - Protection des biens - Conditions d'obtention de l'ordonnance de conservation des biens - [Voir Practice - Topic 3377 ].

Cases Noticed:

Slattery (Bankrupt) v. Slattery (1988), 105 N.B.R.(2d) 205; 264 A.P.R. 205; 1988 CarswellNB 325 (C.A.), refd to. [para. 52].

St. Anne-Nackawic Pulp Co. (Bankrupt), Re, [2005] N.B.R.(2d) Uned. 174 (T.D.), affd. (2005), 286 N.B.R.(2d) 19; 748 A.P.R. 19 (C.A.), refd to. [para. 56].

Sunny Corner Enterprises Inc. v. St. Anne-Nackawic Pulp Co. (Trustee of) - see St. Anne-Nackawic Pulp Co. (Bankrupt), Re.

Feigelman et al. v. Aetna Financial Services et al., [1985] 1 S.C.R. 2; 56 N.R. 241; 32 Man.R.(2d) 241; 1985 CanLII 55, refd to. [para. 57].

Lister & Co. v. Stubbs, [1886-1890] All E.R. 797; 45 Ch. D. 1 (C.A.), refd to. [para. 58].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 1994 CanLII 117, refd to. [para. 60].

Meade v. Nelson Resources Ltd., [2005] O.T.C. 1034; 2005 CarswellOnt 7019 (Sup. Ct.), refd to. [para. 60].

Canada East Manufacturing Inc. v. Harvey and Maritime Wire Co. (1996), 183 N.B.R.(2d) 293; 465 A.P.R. 293; 1996 CanLII 4872 (C.A.), refd to. [para. 64].

Yule Inc. v. Atlantic Pizza Delight Franchise (1968) Ltd. et al., 1977 CanLII 1198 (Ont. Div. Ct.), refd to. [para. 72].

Allsco Building Products Ltd. v. United Food and Commercial Workers International Union, Local 1288P (1998), 207 N.B.R.(2d) 102; 529 A.P.R. 102; 1998 CanLII 14085 (C.A.), refd to. [para. 73].

Statutes Noticed:

Rules of Court (N.B.), rule 35.02 [para. 53].

Counsel:

Avocats:

Timothy M. Hopkins, on behalf of the plaintiffs;

G. Robert Basque, Q.C., on behalf of the defendants.

This motion was heard at Saint John, N.B., on October 16, 2014, by Glennie, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following judgment on October 20, 2014.

To continue reading

FREE SIGN UP