Motion succeeded to strike a conspiracy claim agains LaFarge
July 22, 2011
On July 22, 2010, The Ontario Superior Court of Justice ruled in favour of LaFarge Canada Inc., LaFarge Materials & Construction Inc., and LaFarge Paving and Construction Limited’s (Defendants) motion to strike a claim of conspiracy by Mary Bilbija (Plaintiff). The Plaintiff was a shareholder with her two brothers in a corporation known as Rhino Canada. In an oppression action, it is alleged that her brothers deprived her of her entitlement as a creditor and shareholder of the company, by diverting the business to Liquid Rubber Industries Inc. in an agreement with the Defendants in this action.
The claim is that the Plaintiff’s brothers in agreement with and the participation of the LaFarge defendants have caused her damage as a result of the alleged misappropriateion of Rhino Canada’s corporation opportunities and assets. The court ruled in favour of the motion to strike the claim, stating that the claim is the same allegation made against the brothers in the oppression action, and therefore unable to see any claim against the Lafarge Defendants.
The Court also found for the Defendants and struck the claim as being derivative in nature. Whatever harm the individual may suffer arose only as a shareholder and creditor of a corporation which would have been the proper Plaintiff. Absent any direct, independent, harm alleged suffered to the Plaintiff, there is no cause of action. The Plaintiff did not bring a derivative action in the time permitted by the Court and the action was dismissed.
McCarthy Tétrault LLP represented the defendants, with a team led by Thomas Sutton and Eil Mogil.