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[76] While this will overlap with the analysis in the following section, it is worth reviewing
the circumstances under which 199 Alberta came to be. I accept that CEM’s financial situation
was very poor in 2016 and that it had little work to support its employees and the individual
Defendants. However, by September, 2016, there was enough uplift in the market to justify
beginning a new venture in the same industry – indeed, a venture which generated significant
revenues relatively quickly.
[77] Although the Defendants took great pains to try and differentiate the services offered by
CEM from those offered by 199 Alberta, the fact is that they are substantially the same. The new
mythology – focusing on the corporate client first as opposed to its individual employees – may
have allowed the individual Defendants to describe their offerings as “new” to prospective
customers but objectively, the core services and objectives of CEM and 199 Alberta were the
same.
[78] Further, even if the offerings were different, there was no reason whatsoever to
incorporate a new company simply in order to adopt a new consulting methodology. Companies
often rebrand or introduce new or improved products within their existing corporate personality.
The fact that the Defendants could have done so here is obvious from, among other things, the
fact that 199 Alberta operated under the Forefront Performance name, which was CEM’s name.
[79] In fact, the only thing accomplished by re-starting their business under a new corporate
identity was to shed any liability for Mr. Wisser’s severance.
[80] This was not, unlike BCE, a situation where the best interests of the company were truly
adverse to those of Mr. Wisser, other than the ability to avoid paying proper severance. There
was no driver to CEM ceasing operations and 199 Alberta beginning operations. The individual
directors did not go through a statutory winding-up process (which would have required them to
account for outstanding claims like Mr. Wisser’s) but rather just waited for CEM to be struck in
2018 while simultaneously, beginning in 2016, conducting the same business with many of the
same former CEM employees under the 199 Alberta company.
[81] Oppressive conduct is described as coercive, abusive, done in bad faith; BCE para.67 or
“burdensome, harsh and wrongful, a visible departure from standards of fair dealing”; BCE
para.92. I do not believe that the Defendants’ conduct was, on the evidence, bad faith conduct.
However, it certainly treated Mr. Wisser’s interests as being of no importance (BCE para.67) and
involved an unnecessary and very detrimental alteration to the CEM share structure (BCE,
para.93) by gutting whatever value was there and moving the intellectual property, goodwill,
employees and management to a new company.
[82] I have found the case of Downtown Eatery (1993) Ltd v Ontario, 2001 CarswellOnt 1680
(Ont. CA) to be instructive. In that case, the plaintiff employee, Alouche, was terminated from
his role as the general manager of a nightclub called For Your Eyes Only. He sued for wrongful
dismissal but named the company which had issued his cheques, Best Beaver Management Inc.
By the time he obtained judgment, the directors of Best Beaver had wound down Best Beaver as
part of a multi-company restructuring, leaving it unable to pay Alouche’s judgment.
[83] Alouche then sued Downtown Eatery, as well as the two directors of Best Beaver and
their other related companies. Alouche argued both the common employer doctrine and
oppression, both of which were rejected by the trial judge. The trial judge found that the
defendants’ conduct was not oppressive because the restructuring was not undertaken for the