Ontario Securities Commission et al. v. McLaughlin et al.,

• Jurisdiction: Ontario
• Judge: O'Connor
• Neutral Citation: 2009 ONCA 280
• Citation: (2009), 248 O.A.C. 54 (CA),2009 ONCA 280,248 OAC 54,(2009), 248 OAC 54 (CA),248 O.A.C. 54
• Date: 24 March 2009
• Court: Court of Appeal (Ontario)

Securities Comm. v. McLaughlin (2009), 248 O.A.C. 54 (CA)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. AP.017

Ontario Securities Commission, Hugh Cleland, Daon Development Corporation, John Templeton and the Woodbridge Company Limited (plaintiffs/respondents) v. Stuart Bruce McLaughlin , Peel Financial Services Limited and S.B. McLaughlin & Company Limited (defendant/ appellant )

(M37383-C49832; 2009 ONCA 280)

Indexed As: Ontario Securities Commission et al. v. McLaughlin et al.

Ontario Court of Appeal

O'Connor, A.C.J.O.

April 2, 2009.

Summary:

The plaintiffs commenced an oppression action against McLaughlin and others (Ontario Business Corporations Act, s. 248). McLaughlin moved for leave to amend his statement of defence to plead a number of matters.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. R69, dismissed the motion. The defendant filed a notice of appeal to the Court of Appeal. The defendant sought directions as to whether the appeal lay to the Court of Appeal or the Divisional Court. If the appeal did not lay to the Court of Appeal, the defendant requested an order transferring it to the Divisional Court.

The Ontario Court of Appeal, per O'Connor, A.C.J.O., held that the proper route of appeal was to the Divisional Court and ordered that the appeal be transferred to that court.

Company Law - Topic 9730

Actions against corporations and directors - Practice - Appeals - The plaintiffs commenced an oppression action against McLaughlin and others (Ontario Business Corporations Act, s. 248) - McLaughlin, who was a director and controlling shareholder of the company in question, moved for leave to amend his statement of defence to plead a number of matters - The motion was dismissed - The defendant sought directions as to whether an appeal lay to the Court of Appeal or the Divisional Court - Section 255 of the Act provided that an appeal lay to the Divisional Court from an order "made by the court under this Act" - The defendant asserted that the order dismissing his motion was made under the Civil Procedure Rules and not "under this Act" and, therefore, as an appeal from a final order of a Superior Court judge, the appeal lay to the Court of Appeal (Courts of Justice Act, s. 6(1)(b)) - The Ontario Court of Appeal, per O'Connor, A.C.J.O., agreed that the impugned order was a final order where it disposed of potential defences, but held that the proper appeal route was to the Divisional Court - When a court determined a s. 248 application after the completion of the proceedings, the order was appealable to the Divisional Court under s. 255 - When a court exercised what was, in effect, the same power by allowing or dismissing a s. 248 claim or defence at an early stage it was equally making an order "under this Act" - The relationship between the power exercised was sufficiently "close" to the source of the legislative power under s. 248 - The court noted that the parties had not suggested that s. 255 was inapplicable because there was an alternative fiduciary duty claim that was not made under the Act - Indeed, the main plaintiff pleaded its authority to make the oppression claim under s. 248 and had not pleaded that it was making a claim in any other capacity - In these circumstances, the presence of the alternative claim did not alter the appeal route.

Company Law - Topic 9796

Actions against corporations and directors - Action for oppressive conduct - Order of court - Nature of - [See Company Law - Topic 9730 ].

Courts - Topic 7504

Provincial courts - Ontario - Divisional Court - Jurisdiction - Respecting appeals from final orders - [See Company Law - Topic 9730 ].

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - [See Company Law - Topic 9730 ].

Cases Noticed:

Ball v. Donais (1993), 64 O.A.C. 85; 13 O.R.(3d) 322 (C.A.), refd to. [para. 7].

385925 Ontario Ltd. v. American Life Insurance (1985), 51 O.R.(2d) 382 (H.C.), refd to. [para. 7].

Loewen, Ondaatje, McCutcheon & Co. v. Sparling et al., [1992] 3 S.C.R. 235; 143 N.R. 191, dist. [para. 13].

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

Amaranth L.L.C. v. Counsel Corp. (2004), 186 O.A.C. 395; 71 O.R.(3d) 258 (C.A.), refd to. [para. 17].

Statutes Noticed:

Business Corporations Act, R.S.O. 1990, c. B-16, sect. 255 [para. 9].

Counsel:

Ronald G. Chapman, for the appellant;

Paul Michell, for the respondents.

This appeal was heard on March 24, 2009, by O'Connor, A.C.J.O., of the Ontario Court of Appeal, who released the following judgment on April 2, 2009.