Howard A. Gorman

The appellant brought a proposed class action alleging oppression.

The motion judge found that the Ontario Business Corporations Act (OBCA) did not apply because the corporation in question, Birch Mountain, was an Alberta corporation and the appellant was not a complainant under the OBCA.

The motion judge also found that Alberta was the convenient forum.

The Court of Appeal agreed, noting that the action concerned an Alberta corporation, Alberta law applied, and the Alberta courts were already supervising the corporation's bankruptcy and asset sale.

The appeal was dismissed.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.