Ontario’s oppression remedy is, for better and for worse, notoriously flexible. Its elements cast an incredibly wide net and the court has carte blanche to make “any interim or final order it thinks fit” to address the oppression.[1] While this breadth makes it a sensitive tool for a wide range of corporate disputes, it makes it equally susceptible to creative challenges or procedural hurdles.
In the recent Justein v. DeFi Technologies Inc., 2023 ONCA 615, the Court of Appeal reinforced a threefold “common sense” approach to adjudicating oppression claims too often mired in complexity and delay.
QUICK FACTS[2]
In November of 2020, DeFi Technologies Inc. (“DeFi”) approved the grant of a 750,000 share option to Joseph Weinberg for his work as an advisor to the company. This grant was approved by a resolution of DeFi’s board of directors, which also authorized DeFi’s officers to take the necessary steps to carry out this grant. The grant was publicly announced the next day, approved at DeFi’s annual general meeting, and reported in DeFi’s public filings to the Ontario Securities Commission.
One year later, Mr. Weinberg tried to exercise half of these stock options, but was told by DeFi that the options had been cancelled because Mr. Weinberg had not met the requirements for “consultants” within the meaning of the plan. While there was conflicting evidence over how much advisory work had been done by Mr. Weinberg during that intervening year, DeFi’s board never formally cancelled the options or issued any resolution determining that Mr. Weinberg was not eligible for the same.
Mr. Weinberg brought an application against DeFi seeking damages for a breach of his option agreements “under either contract law or as an oppression remedy”. Justice Pollak of the Superior Court found in favour of Mr. Weinberg, ordering DeFi to grant the 750,000 options set at the mean price between the highest and lowest point during the period where Mr. Weinberg had attempted to exercise his option and the date when they would have expired. DeFi appealed this order directly to the Ontario Court of Appeal.
COURT OF APPEAL’S THREE “COMMON SENSE” AFFIRMATIONS
1. Appellate Jurisdiction
The Court of Appeal had no concerns hearing the appeal given that the parties had agreed in advance to the court’s jurisdiction under s. 6(2) of the Courts of Justice Act.[3] While s. 255 of the OBCA directs all appeals from any order (including oppression remedies) under the OBCA to the Divisional Court, s. 6(2) of the CJA grants the Court of Appeal jurisdiction over matters with multiple overlapping routes of appeal.
Since neither the Court of Appeal nor (it seems) Justice Pollak spent much time considering the alternative “breach of contract” framing to Mr. Weinberg’s claims, it’s arguable that this ought to have gone first to the Divisional Court as a pure oppression appeal.
However, with a gestural alternative pleading and absent any objection from the respondents, the Court of Appeal was content not to raise their own procedural barriers to disposing of this oppression appeal.
2. Findings on the Merits
The Court of Appeal affirmed a similarly no-nonsense approach to considering this oppression claim on its merits.
On appeal, DeFi argued that the application judge erred in failing to make any finding as to whether Mr. Weinberg was in fact an eligible consultant under the option plan.[4] The court rejected this argument, affirming Justice Pollak’s “common sense approach” in finding the oppression made out simply based on the fact that DeFi had formally approved Mr. Weinberg’s option grants without ever formally cancelling them.
DeFi also argued that the application judge erred in finding a “reasonable expectation” on the part of Mr. Weinberg that he would be able to exercise his options even after failing to provide consulting services to the company. Again the court upheld Justice Pollak’ common sense reasoning: Mr. Weinberg’s reasonable expectation was grounded in the fact that the company granted him the option and never revoked it; the fact that DeFi may or may not have utilized him during this period did not change the undisputed fact that he remained one of their standby advisors.[5]
3. Calculating Remedies
Lastly, DeFi challenged the adequacy of Justice Pollak’s reasons and the lack of particularized calculation findings for the creative remedy ordered for Mr. Weinberg. In deciding how best to restore Mr. Weinberg to the position he would have be in but for the oppressive denial of his options, Justice Pollak had invited both parties to submit to proposals on how best to calculate the price for Mr. Weinberg’s restored options. One of those proposals (which was ultimately accepted) was to take the average (mean) of the highest and lowest prices during the period when Mr. Weinberg could have fully exercised his options. The Court of Appeal had no trouble dismissing this ground of appeal, emphasizing that Justice Pollak “cannot now be faulted for choosing an option that was jointly suggested to her by the parties”.[6] Another deflating dose of common sense for the appellants.
FINAL THOUGHTS
DeFi Technologies doesn’t demand our attention. The facts were simple, the reasons brief, and the applicable law left intact. But through its efficient, common sense dispositions, DeFi reminds us not to lose sight of the forest for the trees. In the face of our increasingly worrying delays for hearing civil matters in Ontario, this is a refreshing message worth taking to heart.
[1] Business Corporations Act, RSO 1990, c. B. 16, s. 248(3) (“OBCA”)
[2] Justein v. DeFi Technologies Inc., 2023 ONCA 615, paras 1-7 (“DeFi Technologies”).
[3] RSO 1990, c. C.43 (“CJA”).
[4] DeFi Technologies, paras 10-12.
[5] DeFi Technologies, paras 13-14.
[6] DeFi Technologies, paras 15-16.
