Tremblett v. SCB Fish., (1993) 116 Nfld. & P.E.I.R. 139 (NFTD)

• Judge: Puddester, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: August 25, 1993
• Jurisdiction: Newfoundland and Labrador
• Citations: (1993), 116 Nfld. & P.E.I.R. 139 (NFTD)

Tremblett v. SCB Fish. (1993), 116 Nfld. & P.E.I.R. 139 (NFTD);

    363 A.P.R. 139

MLB headnote and full text

In The Matter Of an Application for leave to bring an action in the name of and on behalf of S.C.B. Fisheries Limited pursuant to s. 369 of the Corporations Act, R.S.N. 1990, c. C-36

John Tremblett (applicant) v. S.C.B. Fisheries Limited (respondent)

(1993 St. J. No. 2455)

Indexed As: Tremblett v. S.C.B. Fisheries Ltd.

Newfoundland Supreme Court

Trial Division

Puddester, J.

August 25, 1993.

Summary:

A dissatisfied shareholder and former director applied to bring an action in the name of the company against a 49% share­holder.

The Newfoundland Supreme Court, Trial Division, dismissed the application.

Company Law - Topic 9413

Actions by corporations - Parties - Deriv­ative actions - [See Company Law - Topic 9425 ].

Company Law - Topic 9425

Actions by corporations - Derivative actions - Application for leave - A dissat­isfied shareholder and former director of a company applied for leave to bring an action in the company's name against another company that was a 49% share­holder - The Newfoundland Supreme Court, Trial Division, refused leave - The court concluded that the applicant was a proper complainant under s. 639 of the Corporations Act - See paragraphs 36 to 40 - However, the court determined that (1) the applicant failed to give reasonable notice as required by s. 369(2)(a) of the Act - See paragraphs 41 to 58; (2) the applicant was not acting in good faith as required by s. 369(2)(b) - See paragraphs 59 to 91; and (3) the action was not in the inter­ests of the corporation as required by s. 369(2)(c) - See paragraphs 92 to 125.

Cases Noticed:

Northwest Forest Products Ltd., Re, [1975] 4 W.W.R. 724 (B.C.S.C.), refd to. [para. 47].

Bellman v. Western Approaches Ltd. (1981), 130 D.L.R.(3d) 193 (B.C.C.A.), refd to. [para. 49].

LeDrew v. LeDrew Lumber Co. (1988), 72 Nfld. & P.E.I.R. 71; 223 A.P.R. 71 (Nfld. T.D.), refd to. [para. 50].

Benarroch v. City Resources (Can.) Ltd., [1991] 4 W.W.R. 562 (B.C.C.A.), refd to. [para. 60].

Gray v. Yellowknife Gold Mines Ltd. (No. 2), [1946] O.R. 639 (H.C.), affd. [1947] O.R. 994 (C.A.), refd to. [para. 84].

Marc-Jay Investments Inc. v. Levy (1974), 50 D.L.R.(3d) 45 (Ont. H.C.), refd to. [para. 93].

Statutes Noticed:

Corporations Act, R.S.N. 1990, c. C-36, sect. 368(b) [para. 37]; sect. 369(1) [para. 36]; sect. 369(2)(a) [para. 41]; sect. 369(2)(b) [para. 59]; sect. 369(2)(c) [para. 92]; sect. 370 [para. 127]; sect. 372 [para. 58].

Counsel:

James Tucker, for the applicant;

Robert Hickey, for the respondent.

This application was heard on August 2, 3, 5, 6, 9, 16 and 18, 1993, before Puddester, J., of the Newfoundland Supreme Court, Trial Division, who delivered the following oral judgment on August 25, 1993.