NOVA OCULUS CANADA MANUFACTURING ULC v SATHER, 2026 ABCA 297

The Appellants were former officers or directors of the Respondent. The Appellant sought to strike the Respondent’s Statement of Claim in the Court of King’s Bench of Alberta on the basis that British Columbia’s Business Corporations Act, SBC 2002, c 57 (“BCBCA”) granted exclusive jurisdiction to hear the claim to the Supreme Court of British Columbia. The Chambers Judge dismissed the Application to Strike and the Appellants’s appeal of the Chambers Judge’s decision.

Pursuant to Rule 3.68(2)(a), claims may be struck where the Court does not have subject matter jurisdiction because another forum has exclusive jurisdiction. To determine whether a Court has subject matter jurisdiction, the Court must determine the “essential nature or character” of the claim. The Court must then determine whether the claim falls within the scope of the exclusive jurisdiction of the competing forum based on the determination of its essential nature or character. When determining the essential character of a claim, the focus is on the claim advanced and not a different claim the Defendant submits the Plaintiff should have brought.

The Appellants argued the Respondent’s claim for impugned transactions amounted to a “disposition of all or substantially all of [the Respondent’s] undertaking and were carried out without a special resolution of shareholders”, bringing the claim within the exclusive jurisdiction of the BCBCA. Section 301(2) of the BCBCA provides a remedy to shareholders, directors, or creditors of a company, but not the company itself, to apply to either enjoin, set aside, or have a Court make any other order it deems appropriate in relation to the disposition.

The Court found no reversible error in the Chambers Judge’s characterization of the essential nature of the Plaintiff’s claim. The Chambers Judge found that the essential nature and character was to obtain legal recourse against wrongdoers for their wrongdoing against the Plaintiff, not to obtain a statutory remedy under the BCBCA. Therefore, the essence of the claim was not within the exclusive jurisdiction of the British Columbia Supreme Court and an Alberta Court had inherent subject-matter jurisdiction.

The Appellants argued that Section 301 of the BCBCA was a “complete code” for granting a remedy to invalidate a transaction that purports to sell all or substantially all of a company’s undertaking. In rejecting this argument, the Court reiterated that the essence of the claim was not about the disposition of all or substantially all of the Respondent’s undertaking. This was just one material fact. Therefore, this did not bring the claim within the exclusive jurisdiction of the BCBCA.

The Court went on the consider whether the BCBCA abrogated from any common law or equitable rights that would otherwise exist in relation to setting aside a transaction. The Court did not agree with the Appellants that the BCBCA was a “complete code” to the extent that it might displace all common law or equitable rights otherwise available to a company to challenge such a transaction.

The Appellant further argued that Section 228 of the BCBCA allows any person whom the Court considers an appropriate person to apply under the BCBCA to prohibit a party or parties from contravening another provision of the BCBCA. Because this argument assumed that the essence of the claim was that it was a Section 301 Application, the Court rejected it for the reasons indicated above.

The Appellant further argued that the BCBCA should have been interpreted as creating a “complete code” by way of analogy to case law that has found that other aspects of the BCBCA have created a “complete code” for other issues. The Court rejected this argument as legislation can create a complete code on one or more topics and not for others. Additionally, the argument that a complete code is created for companies seeking to challenge a disposition of all or substantially all of their undertakings further failed to recognize that this was not the essence of the claim at issue.

Finally, the Court considered the Appellants’ argument that allowing a company to pursue claims in other forums arising from a disposition of all or substantially all of its assets would undermine the BCBCA’s role regulating such claims. As with the above, the Court rejected this argument as it assumed that the essence of the Respondent’s claim was to challenge a disposition of all or substantially all of their undertakings.