348 THE ADVOCATE
VOL. 80 PART 3 MAY 2022
SO WHAT CAN BE DONE?
All litigation carries risk. Oppression cases can be the cousins of cases
where a party facing deadlock or a destruction of mutual confidence and
trust in a private company seeks a “just and equitable” winding up order
under s. 324 of the B.C. Business Corporations Act.5 Both involve significant
risk and expense to the parties. Even with a shareholders’ agreement, one
can still end up in litigation.
Perhaps it is time that the legislature considered a move toward a “nofault”
regime for minority or majority shareholders who wish to extricate
themselves from the business. Shareholders would still have recourse to the
courts for intervention on matters such as what remedy is appropriate. For
instance, a shareholder could seek a court order on who buys out whom, or
could obtain instructions on how to move the case along, such as an order
for document production, directions on obtaining expert evidence and the
like.
Should we consider removing the need to prove oppression in a case such
as this? Unfortunately, if we did this, we might give minority shareholders
too much of a hammer. Courts could still control the nature of the remedy
awarded. There could be limits placed on how soon into the business relationship
a shareholder could come to court. Courts could also use their powers
to fashion orders, taking into account the unique circumstances of the
parties and avoiding situations where the remaining shareholders are put
into impossible financial situations as they carry on business.
ENDNOTES
1. 2021 BCSC 1251.
2. Urquhart v Technovision Systems Inc, 2002 BCSC
172 at para 35, aff’d 2003 BCCA 45.
3. Dubois v Milne, 2020 BCCA 216 at para 84.
4. Ibid at paras 80–81.
5. SBC 2002, c 57.