Shareholder Disputes and the Closely-Held Company: Rights and Remedies For Litigators and Corporate Advisors 2023

Kim Ferreira, Speigel Nichols Fox LLP
Rebecca Shoom, Lerners LLP

This opening session will focus on the most common remedy sought by litigators in shareholder disputes, the oppression remedy. You will get a comprehensive review of its uses and present trends:

• Current case law and recent approaches taken by courts
• Key elements in proving oppression
• The present status of the business judgment rule
• Imaginative uses of the remedy
• The value of the remedy to creditors
• Obtaining interim orders for the payment of costs by the corporation

Arieh Bloom, Tupman & Bloom LLP
Shane D’Souza, McCarthy Tétrault LLP

• Key recent cases on director, officer, and employee duties
• Tracing the obligations: who owes duties to whom, and in what capacity?
• Fiduciary obligations among principals of closely-held companies
• Interaction of fiduciary claims with oppression claims
• Assessing the conduct of directors and officers
• Conflicts of interest and due diligence requirements

Break 10:40 a.m. – 10:55 a.m.

Jonathan Lisus, Lax O’Sullivan Lisus Gottlieb LLP
Linda Plumpton, Torys LLP

• Assessing your claims and remedies:
  • Oppression?
  • Fiduciary duty?
  • Breach of the shareholders’ agreement?
  • Derivative actions?
• Assessing reasonable expectations
• Types of conduct likely to be found oppressive
• Managing interim relief:
  • Interim management
  • Use of a monitor or inspector
  • Access to books and records
  • Restraining conduct, excluding parties and other injunctive-type relief
• Non-competition and confidentiality obligations
• Interim orders for the payment of costs

Enzo Carlucci, KPMG
Jason Squire, Lerners LLP

Shareholder disputes are often focused on financial matters, either because there has been an allegation of impropriety that necessitates a forensic investigation or other form of accounting, or because the value of the business is at issue. This session will address the role of the financial expert in shareholder litigation, including:

• When should you bring in a financial expert?
• Scope of the expert’s role
• Analysis and methods for valuing the business
• Categories of documents you should seek from opposing parties to assist your expert in  preparing a valuation
• Best approaches for developing or reframing settlement positions

Lunch Break (12:30 p.m. -1:15 p.m.)

Brian Gray, Osler, Hoskin & Harcourt LLP
Lauren Tomasich, Osler, Hoskin & Harcourt LLP

As the adage goes, “An ounce of prevention is worth a pound of cure”. With the cost, uncertainty, and drain on time and resources that litigation often entails, perhaps the most valuable advice you can give to a client is how to avoid disputes in the first place. Expert lawyers from both the solicitor and litigator sides of practice will provide highly useful guidance and tips on how to stay out of the courtroom by paying attention to the structure and wording of agreements, while also effectively managing the relationships and expectations of shareholders. You will also learn dispute resolution procedures that can make any disputes that may arise more manageable.

Carlo DiCarlo, Stockwoods LLP

An in-depth look at the other ways that shareholders can seek redress under business corporation legislation in Canada, including:

• Closely-held companies in financial distress and the decision to pursue insolvency proceedings or windups
• Is oppression the right thing to claim? Differences between oppression claims and derivative actions
• When to choose one remedy over the other
• Pursuing both remedies at the same time: strategies and best practices

Break (2:45 p.m. – 3:00 p.m.)

Kenneth A. Dekker, Affleck Greene McMurtry LLP
Robin Dodokin, Dodokin Law & Conflict Resolution

Seasoned litigators will discuss a variety of approaches and considerations, as well the
techniques to use when the dispute turns to litigation, covering:

• Cost-benefit assessment in choosing the DR mechanism (arbitration, Commercial List, etc.)
• Is arbitration suitable to deal with these highly-charged disputes?
• Practical tips and strategies for bringing or responding to an application or action for an oppression remedy
• Developing supportive evidence and responding to damaging evidence
• What to do if a competitive business is launched
• Effective presentation of the case at mediation or at trial

Deborah Templer, McCarthy Tétrault LLP
Tanya Walker, Walker Law

The panel will delve into realistic fact situations illustrating how ethical and professional challenges arise in the context of shareholder disputes in closely-held companies, and what counsel can do to address them. Addressing such issues as the unique cultural and family dynamics that can arise, how to identify and address unconscious bias, understanding power and privilege dynamics in the business relationship context, and ideas toward more effective communication and advancing the values of equity, diversity and inclusion, you will discuss how to walk the line to serve as both effective advocates for your clients and as responsible professionals.

4:30p.m. Program concludes