Ryan McKeen

Investors in real estate development projects brought an oppression application under ss. 161 and 248 of the Business Corporations Act seeking, among other relief, the appointment of an inspector to investigate the use of investor funds.

The evidence showed project funds had been commingled in a separate entity rather than segregated as investors had been led to expect, financial disclosure was deficient, audited financial statements were unavailable, and a dividend was withheld from one preferred shareholder.

The court held that these circumstances raised a prima facie case that reasonable security holder expectations had been defeated and that oppressive conduct may have occurred.

The court ordered the appointment of a court‑appointed inspector and granted additional relief including payment of an unpaid dividend, redemption of preferred shares, and production of a shareholder list.

The applicant brought a motion under Rule 49.09 of the Rules of Civil Procedure seeking judgment enforcing a settlement agreement allegedly reached through email correspondence.

The respondents argued the purported settlement was conditional upon financial documentation substantiating specific “inflows and outflows” related to investments in a failed business venture and that the documentation provided did not support those representations.

The court held that the moving party bears a heavy burden on a Rule 49.09 motion and that the motion should be approached similarly to summary judgment, requiring the absence of genuine issues for trial.

Given conflicting affidavit evidence, disputed financial records, and credibility issues regarding losses, inventory values, and completeness of production, the court concluded that a full appreciation of the evidence required a trial.

The court therefore declined to enforce the alleged settlement.