Farris litigators are regularly involved in British Columbia’s leading cases on shareholder disputes, at the trial and appeal courts as well as in commercial arbitrations. Here is a review of some of Farris’ key shareholder decisions from 2022, along with other significant news and achievements over the past year.
DeAngelis v. Siermy
Farris Partners, Robert Anderson, K.C., Mike Wagner, and Kevin Smith, secured a major win at the British Columbia Court of Appeal. In De Angelis v. Siermy, the Court of Appeal dismissed an appeal from a trial decision in favour of Farris clients, Annie Siermy and her company J&A Properties Ltd. The trial and appeal decisions brought to an end, in Annie’s favour, a complex, high-value dispute spanning six years and involving multiple litigation matters.
The first court determination in the dispute was an order in Annie’s favour liquidating the family property empire, valued at approximately $75 million. J & A Properties Ltd. v De Angelis, 2020 BCSC 1254 (CanLII),
The next adjudication involved a claim by Annie’s niece, Barbara De Angelis, that Annie had entered into a binding agreement to leave Barbara the bulk of Annie’s wealth, but that Annie then changed her Will in breach of that agreement. Barbara claimed specific performance of the alleged agreement, and in the alternative sought compensation for unjust enrichment for “services rendered” to Annie over the years.
The larger context was a multigenerational family business, of which Annie represented the second generation, and Barbara the third generation.
Central to Barbara’s claim against Annie were three so-called “letters from the grave”, which Barbara claimed had been written and signed by Ms. Siermy and proved the existence of the contract. Duelling summary trial applications, which were initially set for four days and ultimately consumed a total of 19 days, were described by the trial judge in his reasons for judgment as “perhaps the longest summary trial on record”. The trial evolved to include extensive cross-examination and six expert witnesses from three different disciplines, along with 48 witness affidavits comprising many thousands of pages. The trial judge found that the alleged agreement never existed and that Barbara had forged the “letters from the grave”. He dismissed both the contract claim and the unjust enrichment claim on several independent grounds, including that Barbara lacked clean hands and that she had received significant remuneration from the larger family business: De Angelis v Siermy, 2022 BCSC 31.
Barbara appealed. The Court of Appeal upheld the trial judge’s decision and dismissed the appeal: De Angelis v. Siermy, 2022 BCCA 401. This case stands as a significant milestone case in the areas of testamentary contracts, forged or fraudulently obtained documents, and unjust enrichment.
Farris represented the successful parties at both trial and on appeal.
Brockman v. Valmont Industries Holland B.V.
Farris Partner Matthew Pierce and Associate Nicholas Vaartnou successfully represented Ted Brockman and his holding company, Talolo Holdings Ltd., in a shareholder dispute relating to Valmont West Coast Engineering Ltd., a pole design and manufacturing company based in British Columbia. Brockman and Talolo petitioned the British Columbia Supreme Court seeking relief under the oppression remedy, alleging among other things that the majority shareholder of West Coast Engineering, Valmont Industries, misappropriated the existing market presence that West Coast Engineering had established in Canada prior to Valmont’s acquisition.
The court granted the petition, holding that Valmont Industries had acted oppressively and ordered that Valmont purchase the petitioners’ shares at fair value to be determined pursuant to a court-supervised valuation process: Brockman v Valmont Industries Holland B.V, 2021 BCSC 500. On appeal the original order was varied to restrict the time period governing the valuation: Brockman v. Valmont Industries Holland B.V., 2022 BCCA 80. The parties subsequently settled the share valuation out of court. Farris represented the petitioners at both the trial and appeal courts.
The decisions in Brockman set important precedents on multiple significant legal issues, including by affirming the availability of the oppression remedy to the minority shareholder of a subsidiary company to address the diversion of business opportunities within a larger corporate enterprise owned by the majority shareholder. The Court of Appeal decision also addressed the unsettled state of the law as to how limitation periods will operate in respect of a continuing course of oppressive conduct.
Prescott Strategic Investments LP v. Flair Airlines Ltd.
Farris Partners Mike Wagner and Erica Miller, along with Farris Associate Jason Yamashita, represent Flair Airlines in an ongoing, complex and high-profile oppression matter commenced by its former majority and controlling shareholder against the company and another shareholder, 777 Partners LLC.
Farris obtained publication bans and sealing orders over most of the court material, successfully arguing that the petitioning shareholder had breached its confidentiality obligations by filing certain commercially sensitive material with the court.
The Supreme Court’s reasons for Judgment are sealed, but a subsequent, public ruling of the Court of Appeal summarizes what transpired: Prescott Strategic Investments Limited Partnership v. Flair Airlines Ltd., 2022 BCCA 70 (CanLII). The merits of the oppression petition have not yet been resolved.
There has been significant media interest in this proceeding, further emphasizing the importance of the confidentiality protections Farris has obtained for its clients – see, for example, https://www.theglobeandmail.com/business/article-flying-high-flair-airlines-is-expanding-rapidly-but-internal-discord/ and https://www.cbc.ca/news/canada/edmonton/flair-airlines-cta-ruling-1.6473784.
Other News and Notes
In addition to the key cases highlighted above, Farris’ shareholder litigation group enjoyed further major achievements, recognitions and engagements throughout 2022, highlights of which include:
- The following Farris litigators were ranked in Benchmark in relevant areas:
- Robert Anderson, K.C. – Commercial, Criminal, Environmental, Securities
- Scott Dawson – Commercial
- Ludmila Herbst, K.C. – Arbitration, Commercial, Entertainment, Media
- Nicholas Hooge – Future Star
- Jeffrey Kay, K.C. – Commercial, Family & Matrimonial, Product Liability and Recall
- Michael Korbin – Labour & Employment
- Yun Li-Reilly – Future Star
- Tim Louman-Gardiner – Future Star
- Robert McDonell – Class Action, Construction, Commercial, Environmental
- Alexander Mitchell – Future Star
- Rebecca Morse – Commercial, Insolvency
- Matthew Pierce – Future Star
- Kevin Smith – Future Star
- Mike Wagner – Arbitration, Class Action, Commercial, Data Privacy, Defamation, Energy, Intellectual Property
The following Farris litigators were ranked in Best Lawyers in relevant areas:
- Robert S. Anderson, K.C. – Corporate and Commercial Litigation and Defamation and Media Law
- Nikki Charlton – Family Law
- Marylee A. Davies – Alternative Dispute Resolution
- Scott A. Dawson – Corporate and Commercial Litigation, and Defamation and Media Law
- Michael Gianacopoulos – Personal Injury Litigation, Railroad Law, and Transportation Law
- Ludmila B. Herbst, K.C. – Administrative and Public Law, Corporate and Commercial Litigation, Defamation and Media Law, and Energy Regulatory Law
- Jeffrey J. Kay, K.C. – Family Law, Family Law Mediation, and Product Liability Law
- Robert B. Kennedy, K.C. – Personal Injury Litigation and Sports Law
- Michael H. Korbin – Education Law and Labour and Employment Law
- Yun Li-Reilly – Corporate and Commercial Litigation
- Robert J. McDonell – Administrative and Public Law, Corporate and Commercial Litigation, and Product Liability Law
- Alexander D. Mitchell – Employee Benefits Law
- Rebecca M. Morse – Corporate and Commercial Litigation, Insolvency and Financial Restructuring Law, and Trusts and Estates
- Karen Shirley-Paterson – Alternative Dispute Resolution and Family Law
- Kevin Smith – Corporate and Commercial Litigation
- Michael Wagner – Corporate and Commercial Litigation, Labour and Employment Law, and Privacy and Data Security Law
- Amanda Winters – Trusts and Estates
Farris Partner Yun Li-Reilly and Associate Mohnaam K. Shergill recently wrote for Lexpert’s “Legal insights” series on the intricacies involved when shareholdings form part of the family assets being divided on the break down of a romantic relationship. The article considers the many factors that come into play in determining how the shares should be treated, and what romantic partners can proactively do to avoid these complications in the event the relationship ends. Click here for the full news item.
Yun Li-Reilly also was named a Lexpert Leading Lawyer Under 40. This prestigious award honours Canada’s leading lawyers under the age of 40 – from law firms and in-house – and is decided upon by a group that includes in-house counsel along with chairs or managing partners from Canada’s most noted law firms. Click here for the full news item.
Farris Partners Ludmila Herbst, K.C. and Rebecca Morse were recognized as two of Benchmark Litigation’s “Top 100 Women in Canada” for 2022. Benchmark’s guide focuses on the leading female litigators across Canada who have earned their place by participating in some of the most impactful litigation matters in recent history, as well as by earning the hard-won respect of their peers and clients as top players in their respective fields. Click here for the full news item.
Ludmila Herbst, K.C. participated in a panel on the new International Commercial Arbitration Rules of Procedure of the Vancouver International Arbitration Centre (“VanIAC”), which came into effect on July 1, 2022. Ludmila is a member of VanIAC’s board of directors and, as a member of VanIAC’s rules committee, was involved in drafting and finalizing the new rules. Ludmila is also co-author of a leading text in this field, Commercial Arbitration in Canada: A Guide to Domestic and International Arbitrations. Click here for the full news item.
Farris Partner Tevia Jeffries was admitted to the International Insolvency Institute, a limited-membership, invitation-only organization of leading insolvency practitioners, academics, judges, and financial industry professionals from all over the world. Click here for the full news item.