P. Howard

The applicants, Central GoldTrust and Silver Bullion Trust, sought declarations and injunctive relief to stop hostile takeover bids by the respondents.

The applicants argued the bids violated advance notice by-laws, proxy solicitation rules, and withdrawal rights under the Securities Act.

The respondents cross-applied to invalidate defensive amendments made by the applicants' boards to their declarations of trust.

The court dismissed the applicants' requests to enjoin the bids, finding no violation of proxy rules or advance notice by-laws, but ordered a minor amendment to the powers of attorney regarding withdrawal rights.

The court granted the respondents' cross-application, invalidating the defensive amendments as they were enacted primarily to thwart the takeover bids.

Following the dismissal of the plaintiffs' oppression action after a hybrid trial, the successful defendants sought partial indemnity costs.

The plaintiffs argued that each party should bear its own costs because the defendants' unlawful conduct provoked the litigation.

The court rejected this argument, finding the defendants were entitled to costs.

The court also addressed the novel issue of whether costs for preparing affidavits and cross-examinations for pre-trial motions are recoverable when that evidence is subsequently used in a hybrid trial.

The court held that such costs are recoverable to the extent the work product was material to the trial issues, to encourage the use of hybrid trials.

The court fixed EnGlobe's costs at $200,232.47 and Busseri's costs at $116,321.99.

The applicant shareholders sought an oppression remedy and a court-ordered shareholder meeting, arguing that the company's Special Quorum Requirement for electing directors was invalid and oppressive.

The requirement mandated a 50% quorum, which had not been met for 15 years, preventing the election of directors.

The court dismissed the application, finding that the board complied with its legal obligations, the quorum requirement was publicly known and approved by shareholders, and the applicants had not attempted to use statutory tools like requisitioning a meeting or soliciting dissident proxies.

The court declined to order a meeting under s. 106 of the OBCA, as it was not impracticable for the shareholders to call one themselves.

The plaintiffs, minority shareholders of EnGlobe Corp., brought an action alleging that EnGlobe and its CEO engaged in oppressive conduct and conspired with a third party to freeze their shares during a proxy fight.

The court dismissed the action, finding that the freezing of the shares resulted from a consent order in separate litigation, not from any oppressive conduct or conspiracy by EnGlobe.

The court also held that the claims were barred by cause of action estoppel due to a prior consent dismissal order, and that the oppression claim was statute-barred under the Limitations Act, 2002.