Porter v. Anytime Custom Mechanical, 2007 ABCA 208

• Judge: Côté, McFadyen and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 04, 2007
• Jurisdiction: Alberta
• Citations: 2007 ABCA 208;(2007), 412 A.R. 50 (CA)

Porter v. Anytime Custom Mechanical (2007), 412 A.R. 50 (CA);

      404 W.A.C. 50

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. JL.001

Dave Porter (respondent/applicant) v. Anytime Custom Mechanical Ltd., and Terry McCoy, Wayne Flight and Edgar Sagun (appellants/respondents)

(0703-0037-AC; 2007 ABCA 208)

Indexed As: Porter v. Anytime Custom Mechanical Ltd. et al.

Alberta Court of Appeal

Côté, McFadyen and Slatter, JJ.A.

June 25, 2007.

Summary:

The respondent, Porter, was a shareholder and director of a company. He also worked for the company. The majority of the shareholders threatened to hold a meeting and fire Porter. Porter filed an Originating Notice for various relief, citing the oppression section of the Alberta Business Corporations Act. He also moved for an interlocutory injunction. There did not appear to be any notice of motion for the injunction, although the Originating Notice mentioned an interlocutory injunction. The appellants' counsel appeared in chambers to oppose the injunction. He had received less than a day's notice of the motion and he sought an adjournment. The judge granted an adjournment, but made an "Interim Standstill Order", which required the appellants to pay Porter $4,500 per month and carry on business in the ordinary way. The hearing of the application on the merits was adjourned twice. In the meantime, the appellants appealed from the standstill order, arguing that the procedure was unfair.

The Alberta Court of Appeal stated that the order under appeal was in effect given ex parte. The court held that the order should have contained an expiry date and that, at the very least, the appellants should have been given leave to move on appropriate notice to vary or set aside the order. The court amended the order to allow the appellants to move at any time on seven days' notice to vary or rescind any or all of the order. In the case of an emergency, for a narrow variation of the order, or permission to carry out one transaction, that time could be abridged. The court also gave the appellants liberty to move before the judge hearing the originating notice for repayment of the $4,500 payments already made under the order.

Injunctions - Topic 1126

Ex parte injunctions - Form and content - Time limitations - The respondent, Porter, was a shareholder and director of a company - He also worked for the company - The majority of the shareholders threatened to hold a meeting and fire Porter - Porter filed an Originating Notice for various relief, citing the oppression section of the Alberta Business Corporations Act - He also moved for an interlocutory injunction - There did not appear to be any notice of motion for the injunction, although the Originating Notice mentioned an interlocutory injunction - The appellants' counsel appeared in chambers to oppose the injunction - He had received less than a day's notice of the motion and he sought an adjournment - The judge granted an adjournment, but made an "Interim Standstill Order", which required the appellants to pay Porter $4,500 per month and to carry on business in the ordinary way - The hearing of the application on the merits was adjourned twice - The appellants appealed from the standstill order, arguing that the procedure was unfair - The Alberta Court of Appeal stated that the order under appeal was in effect given ex parte - The court held that the order should have contained an expiry date and that, at the very least, the appellants should have been given leave to move on appropriate notice to vary or set aside the order - The court amended the order to allow the appellants to move at any time on seven days' notice to vary or rescind any or all of the order - In the case of an emergency, for a narrow variation of the order, or permission to carry out one transaction, that time could be abridged.

Injunctions - Topic 1161

Ex parte injunctions - Dissolution and setting aside - General - [See Injunctions - Topic 1126 ].

Practice - Topic 5805

Judgments and orders - Ex parte orders - Variation - [See Injunctions - Topic 1126 ].

Cases Noticed:

K.J.A. v. O.K.C. (2007), 412 A.R. 42; 404 W.A.C. 42; 2007 ABCA 128, consd. [para. 17].

Royal Bank of Canada v. Got (W.) & Associates Electric Ltd. et al., [1997] 6 W.W.R. 715; 196 A.R. 241; 141 W.A.C. 241 (C.A.), affd. [1999] 3 S.C.R. 408; 247 N.R. 1; 250 A.R. 1; 213 W.A.C. 1, refd to. [para. 18].

Ritter et al. v. Hoag et al. (2004), 363 A.R. 372; 343 W.A.C. 372; 2004 ABCA 421, leave to appeal denied (2005), 344 N.R. 195; 380 A.R. 245; 363 W.A.C. 245 (S.C.C.), refd to. [para. 18].

Bhattacharya v. St. Boniface General Hospital (2000), 148 Man.R.(2d) 115; 224 W.A.C. 115; 2000 MBCA 51, refd to. [para. 18].

Ravoy v. Ravoy (2000), 255 A.R. 293; 220 W.A.C. 293; 186 D.L.R.(4th) 711; 2000 ABCA 114, refd to. [para. 20].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Civil Procedure Encyclopedia (2003), vol. 2, c. 33, Parts T.2, T.3 [para. 19]; c. 54, Part C.1 [paras. 19, 20].

Counsel:

I.M. Cameron, for the respondent/applicant;

B.G. Doherty, for the appellants/respondents.

This appeal was heard on June 4, 2007, before Côté, McFadyen and Slatter, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was filed on June 25, 2007.