L'oppression, c'est regarder au-delà des technicalités corporatives

par Karim Renno
Renno Vathilakis Inc.

La Cour suprême nous enseigne dans l'affaire BCE que l'oppression c'est d'abord et avant tout une question d'attentes légitimes. Cela implique que la Cour doit souvent regarder au-delà des technicalités corporatives pour voir quelles étaient les attentes véritables des parties. C'est ce que rappelle la Cour d'appel dans l'affaire Sigounis c. Sigounis (2023 QCCA 1375).

Dans cette affaire, l'Appelante se pourvoit contre un jugement de première instance rendu par l'Honorable juge Michel A. Pinsonnault, lequel a ordonné la liquidation d'une personne morale. Le juge Pinsonnault a conclu que l'Intimé avait prouvé avoir une attente légitime à une telle liquidation suite à la signature de certaines ententes contractuelles avec son défunt père.

L'Appelante reproche entre autre au juge de première instance d'avoir donné effet à ces ententes en l'absence de résolutions corporatives approuvant la signature de celles-ci.

Une formation unanime de la Cour composée des Honorables juges Bich, Mainville et Rancourt rejette les prétentions de l'Appelante et confirme le jugement de première instance. Ce faisant, la Cour rappelle que les tribunaux doivent prendre en considération toutes les circonstances pertinentes et ne pas nécessairement s'arrêter aux technicalités corporatives:

[27] Moreover, she seeks to invalidate the trial judge’s findings on oppression on the ground that some of the agreements signed by Nicolas, most notably the Costas Agreement and the Acknowledgement, were not formally approved through corporate resolutions. This is a spurious argument in the context of this case.

[28] As noted above, a reasonable expectation may emerge from the personal relationships between parties, particularly in the context of family-owned corporations, which may be governed by different standards than relationships between arm’s length shareholders. In this case, the trial judge found, as a matter of fact, that the minute books of the Chenoy Corporations are in a poor state, are quite unreliable and have not been properly maintained as a direct result of lack of concern on the part of Nicolas, the father. The trial judge further found that in both the Costas Agreement and the discussions leading to the Acknowledgement, Nicolas had made binding commitments that justified a reasonable expectation by Jimmy that his father would abide by his word and proceed to the liquidation of the Chenoy Corporations.

[29] As the trial judge found:

[365] To settle the Costas Oppression Lawsuit who was seeking the liquidation and dissolution of the Chenoy Corporations, Nicolas and Jimmy, inter alia, signed the Costas Agreement which involved the orderly liquidation and dissolution of all Chenoy Corporations including in particular those owning and/operating the Laval Property, the Laval Restaurant, the DDO Property and the DDO Restaurant.

[366] At all relevant times, Jimmy was justified to entertain reasonable expectations that his father would honour his word and his commitments especially when he signed documents such as the Costas Agreement and later the Acknowledgment bearing in mind that the latter document was executed by Nicolas in order to induce and convince Jimmy to partake in the Costas Buy-out and to sign the Costas Release, as Jimmy’s presence and involvement were crucial to complete the transaction with Costas.

[367] The evidence leaves no doubt in the mind of the Court that since the Costas Agreement of 2013, Jimmy always acted with the reasonable expectation that his father would also proceed with the sale of the DDO Property just as he did with the Laval Property.

[368] The Court also retains that since 2012, Jimmy was essentially motivated by the overall financial situation of the group of Chenoy Corporations that no longer permitted a profitable continuation of the operations including the Laval and DDO Restaurants, bearing in mind that the Brossard Restaurant went bankrupt in 2015 and that all franchise restaurants disappeared soon after without having paid any royalties for several years.

[369] The dire financial situation plaguing the Chenoy Corporations was further evidenced by the attempts of Nicolas, with the complicity and assistance of Argyro, to “strip”—as Jimmy qualified it—the remaining corporate assets to cover haphazardly outstanding debts left and right, regardless of who or which company owed them while attempting to shield those assets from apprehended “attacks” of creditors such as the ARQ.

[370] As the valuable remaining assets were depleting rapidly, the financial woes of the group of Chenoy Corporations became increasingly untenable to such an extent that Nicolas even decided to resort on more than one occasion to obtain financing by getting his wife Eleni to hypothecate her house, their family residence.

[…]

[377] In other words, after the execution of the Costas Agreement, Nicolas, always relying on the complicity and assistance of Argyro, could not carry-on as before by simply ignoring Jimmy as co-director and making unilateral decisions in his absence and without his consent.

[378] Jimmy was justified to reasonably expect that as a director, his co-directors, Nicolas and Argyro, would consult with him before making any major decisions that were within the realm of the board of directors. This did not necessarily imply that Jimmy had a right of veto, thus justifying their decision to bypass him completely.

[379] Finally, as previously discussed, the Court cannot accept Argyro’s argument that the Court should disregard the documents executed by her father such as the Costas Agreement and the Acknowledgment as they did not have any more value in her father’s mind once the Costas Buy-out was completed and the threats resulting from Costas’ oppression remedy proceedings no longer existed.

[30] Overall, Argyro has failed to show a palpable and overriding error in the trial judge’s findings of fact with respect to oppression. Put simply, the evidence of oppression is overwhelming in this case. Given the extent of the oppressive conduct by Nicolas and Argyro, the trial judge’s conclusion that oppression occurred is simply unassailable.

[31] To dispose of the question briefly, the evidence overwhelmingly shows that Jimmy had a reasonable expectation that the Chenoy Corporations would be liquidated and that he would receive his share of the net liquidation proceeds commensurate to his minority shareholding interest. That reasonable expectation was frustrated in numerous ways by Nicolas and Argyro, including through attempts to strip assets, the refusal to consider reasonable third-party offers to purchase the DDO Property, questionable financial practices, the appropriation of funds, and the failure to disclose financial transactions and to render any accounting regarding the operations of the DDO Restaurant.

Référence : [2023] ABD 449