Court of Queens Bench of Alberta  
Citation: Wisser v CEM International Management Consultants Ltd, 2022 ABQB 414  
Date: 20220614  
Docket: 1501 05357  
Registry: Calgary  
James Wisser  
- and -  
CEM International Management Consultants Ltd, Forefront Performance Management  
Inc, 1728503 Alberta Ltd, Wouter DAilly, Jeff Ascah and 1994992 Alberta Ltd  
Reasons for Judgment  
of the  
Honourable Madam Justice M.H. Hollins  
Mr. Wisser was employed by CEM International Management Consultants Ltd (CEM)  
and its successor, Forefront Performance Inc1. His employment was terminated in March of  
2015, and he maintains that he did not receive adequate severance in lieu of notice of that  
termination, which is disputed.  
If the severance was not adequate and Mr. Wisser’s termination was therefore wrongful,  
there is also another question about which entity or individuals are liable for his damages. By the  
11 Both are collectively referred to herein as CEM, although the company changed its name to Forefront  
Performance Inc on August 15, 2015.  
Page: 2  
fall of 2016, CEM had ceased operating and its principals had incorporated a new company,  
1994992 Alberta Ltd (“199 Alberta”). Mr. Wisser takes the position that this was done to defeat  
his claim against CEM. He advances a claim under the oppression sections of the Alberta  
Business Corporations Act (ABCA), seeking to recover damages jointly and severally against 199  
Alberta and the directors personally.  
CEM provided management consulting services to various clients. Mr. D’Ailly was the  
Vice President Operations and Mr. Ascah was the Vice President Sales & Marketing. They were  
also directors and shareholders of CEM.  
Mr. Wisser, having worked briefly for CEM back in 2005, was rehired as a Business  
Coach on October 4, 2007. As a Business Coach, Mr. Wisser would be assigned to a client and  
would essentially join the “rank and file” employees of that client as a first step to improving  
their performance and ultimately the performance of the client company. The 2007 contract set  
out various terms of his employment but the contract did not speak to the rights and obligations  
of the parties on termination.  
In 2008 and 2009, there was insufficient work to cover Mr. Wisser’s salary. CEM  
decided to change Mr. Wisser from an employee to an independent contractor. Although no  
signed agreement was produced, there is a Record of Employment indicating that his last day as  
an employee was March 24, 2009. From that time until October, 2011, Mr. Wisser continued to  
work for CEM as a Business Coach. Whether he was an independent contractor or employee  
during that time is disputed.  
By the fall of 2011, Mr. Wisser was making more money under the new arrangement  
with CEM than he had been making as an employee between 2007-2009. CEM decided it wanted  
to make Mr. Wisser an employee again. Mr. Wisser signed another Employment Contract dated  
October 1, 2011. He negotiated for an increase from his previous salary of $120,000 per annum  
to $139,000 per annum with 3 weeks paid vacation and 4% pay in lieu of benefits.  
Mr. Wisser worked under this contract until March 19, 2015 when he was terminated not  
for cause by CEM. He was paid 4 weeks’ severance, totalling $10,579.59.  
[8] CEM takes the position that 4 weeks’ pay in lieu of notice of termination is adequate  
because he was, in their view, a relatively short-term employee of approximately 3½ years. CEM  
does not include his prior years as an employee and/or an independent contractor in this  
Mr. Wisser objects, saying that he was effectively an employee of CEM throughout and  
therefore his severance pay should be calculated based on his 7½ years of service. He seeks 15  
months’ pay in lieu of notice and punitive damages.  
Calculating Severance  
[10] The parties agree that CEM was obligated to provide reasonable notice of its intention to  
terminate Mr. Wisser’s employment, given that the termination did not purport to be for cause. If  
reasonable notice was not given, that would be a breach of that implied term of his employment  
contract and he would be entitled to the difference between the value of such reasonable notice  
and what he did receive; Bardal v Globe & Mail Ltd, 1960 CarswellOnt 144 at para.14.  
Page: 3  
[11] How do we calculate a reasonable notice period in any given case? Bardal provided the  
much-cited following list:  
There can be no catalogue laid down as to what is reasonable notice in particular  
classes of cases. The reasonableness of the notice must be decided with reference  
to each particular case, having regard to the character of the employment, the  
length of service of the servant, the age of the servant and the availability of  
similar employment, having regard to the experience, training and qualifications  
of the servant; Bardal at para 21  
[12] The damage award resulting from the calculation of the reasonable notice period is  
intended to put the employee in the position he would have been but for the breach, which has  
generally been accepted as the time it will take him to find new employment. As our Court of  
Appeal recently said:  
Bardal v The Globe & Mail Ltd [ ] sets out a list of factors to be considered in  
determining a reasonable notice period. But the list is not exclusive: Carroll v  
ATCO Electric Ltd, 2018 ABCA 146, para 20, 68 Alta LR (6th) 286, leave denied  
[2018] SCCA No 250 (QL) (SCC No 38174). At its heart, the period of  
reasonable notice is an attempt to estimate the period of time it will take the  
employee to find commensurate employment; Alberta Inc v  
Thibert, 2021 ABCA 213 at para.60  
[13] I will address all the factors relevant to the calculation of Mr. Wisser’s reasonable notice  
period but I will begin with the length of his service as that is disputed.  
Length of Service  
Termination of the 2009 Employment Contract  
[14] Mr. Wisser argues that his entire tenure with CEM ought to be used to determine his  
length of service, totalling approximately 7½ years. CEM takes the position that Mr. Wisser was  
properly terminated as an employee in 2009 and was properly re-hired as an independent  
contractor from 2009 to 2011. Therefore, the only employment that counts is his last 3½ years  
under the 2011 Contract.  
[15] The issue of whether Mr. Wisser’s initial employment was properly terminated in 2009  
revolves around the characterization of a payment made to him at that time. It is agreed that he  
received $7,619.05 above his wages owing. CEM says it was severance pay. Mr. Wisser says  
that was the payout of his accrued vacation pay, meaning that no severance was ever paid to him  
in connection with the termination of his 2007 employment contract.  
[16] I find that the $7,619.05 was vacation pay and not severance pay based on the following  
Mr. D’Ailly’s evidence was that he and Mr. Lonseth (another former CEM  
director and shareholder) had discussed and agreed on a severance payment of  
$5,000, representing 2 weeks’ salary, but that is not the amount of the disputed  
payment. Even if one grossed up that payment to cover the income tax, the math  
does not work;  
The payroll records of CEM call this payment “vacation pay”;  
Page: 4  
The paystub sent to Mr. Wisser calls this payment “vacation pay” and indicates  
that he had vacation hours accrued;  
If it were severance and not vacation pay, there is no additional payment, even  
nominal, to Mr. Wisser for accrued vacation;  
While Mr. D’Ailly testified that it was a CEM policy that employees could not  
carry over vacation from one year to the next:  
Mr. D’Ailly admitted there was no written policy to this effect  
Mr. Wisser was never asked if he understood that to be a policy of CEM or if  
he’d ever had this conversation; and  
iii. Mr. D’Ailly could not recall any specific conversation with Mr. Wisser about  
this verbal policy, only that it was “well known”.  
Mr. Wisser testified that although the CEM records of his Google calendar entries  
showed that he took 3 weeks vacation in 2008, he instead took only 1 week and  
that CEM had agreed to reverse that accounting at his request. That testimony was  
not contradicted with any first-hand knowledge of the Defendants’ witnesses.  
[17] Therefore, I find that no severance was paid to Mr. Wisser in 2009, rendering that  
termination of his employment contract illegal.  
The 2011 Independent Contractor Agreement  
[18] Does this finding mean that Mr. Wisser was not an independent contractor thereafter  
because his employment was not properly terminated? The parties seemed to be arguing this  
point on the premise that inadequate severance in 2009 would invalidate the characterization of  
the independent contractor thereafter. I do not agree that necessarily follows, although in the  
final analysis, it will not matter.  
[19] From April 1, 2009 to September 30, 2011, certain aspects of Mr. Wisser’s relationship to  
CEM were clearly that of an independent contractor. For example:  
The Agreement signed by both parties evidences an intention to convert the  
relationship from that of employer-employee to that of company-contractor;  
Mr. Wisser agreed to and did accept responsibility for remitting his own source  
Mr. Wisser invoiced CEM and received payment through his own company,  
J&SBW Consulting; and  
Mr. Wisser agreed to invoice CEM only for the days he worked and at a fixed  
[20] However, other aspects of the relationship remained indicative of an employer-employee  
relationship throughout this time:  
There was no change in Mr. Wisser’s job description nor reporting structure;  
There was no change in the level of supervision over Mr. Wisser or to his title  
within the company; and  
Page: 5  
Mr. Wisser provided services to no other clients or customers and thus remained  
completely dependent on CEM for his income, a fact known to CEM.  
[21] In JKC Enterprises Ltd v Woolworth Canada Inc, 2001 ABQB 791, Justice Coutu  
reviewed what she called “intermediate relationships” which bore some characteristics of both an  
employment and independent contractor relationship and which therefore gave rise to an  
obligation of reasonable notice of termination. These intermediate relationships were said to  
display degrees of permanence, closeness, economic reliance; and exclusivity; para.63.  
[22] The JKC Enterprises case was later cited by the Ontario Court of Appeal, which  
categorized these workers as “dependent contractors”, saying:  
I conclude that an intermediate category exists, which consists, at least, of those  
non-employment work relationships that exhibit a certain minimum economic  
dependency, which may be demonstrated by complete or near-complete  
exclusivity. Workers in this category are known as dependent contractorsand  
they are owed reasonable notice upon termination; McKee v Reid’s Heritage  
Homes Ltd, 2009 ONCA 916 para.30; see also Cho v Stonebridge Solutions Inc,  
2020 BCSC 1560.  
[23] I find that, with reference to all the factors listed above, Mr. Wisser was a dependent  
contractor for the period of time in which he was not an employee, rendering his service  
continuous for the purpose of evaluating CEM’s obligation to provide reasonable notice of  
[24] In the alternative, I would have found his employment to be continuous. Even if there  
were a true break in Mr. Wisser’s employment, it was for 18 months in the middle of almost 8  
years of service. “Break in service” cases are very fact-specific so an 18-month break might  
indeed sever the continuous service of an employee in some cases. However here, the only thing  
that changed was the basis for Mr. Wisser’s compensation. He was doing the same work, with  
the same title, for the same people and for no one else.  
[25] After not properly terminating his employment in March of 2009, CEM effectively  
sought to pass on the company’s misfortunes by converting Mr. Wisser to an independent  
contractor. And he agreed to do so, which indeed reflected his recognition that CEM was  
financially strapped at that time.  
[26] Counsel for the Defendant made a point of asking Mr. Wisser to confirm that when he  
was “re-employed” in 2011, he did not negotiate a term in the 2011 Contract recognizing his  
prior service. However, the converse of that is that CEM did not, in 2009 or in 2011, ever clarify  
to Mr. Wisser that conversion from an employee to an independent contractor could adversely  
impact his rights on a future termination.  
[27] As a result, I find his length of service to be 7 ½ years.  
2 Mr. Wisser also argued that s.60 of the Alberta Employment Standards Code functioned to ensure that this period  
of service was continuous. However, that section only says that if an employee “continues to be employed” after a  
termination notice is given, the notice is ineffective. Here, it is disputed whether or not he became an independent  
contractor or remained an employee and so that section does not, by itself, assist in resolving that dispute.  
Page: 6  
Other Bardal Factors  
[28] Mr. Wisser was 63 years of age when his employment was terminated. While not  
unemployable by any means, it was also not unreasonable for him to have been considering  
retirement at 65 or 66. Mr. Wisser’s testimony was that he expected his last big contract with  
CEM to provide him with work to do until he was ready to retire. That contract did not pan out,  
for reasons discussed later in this judgment, but suffice it to say that Mr. Wisser did not expect to  
have to go back into the job market at 63 and find new employment.  
[29] Mr. Wisser has a high school diploma and a technical certificate in commercial cooking.  
Prior to joining CEM, he worked for 15 years as a plant manager for a food processing plant. His  
resume says that he began working as a consultant in 2000, with a short stint for CEM in 2005 to  
which he returned in 2007.  
[30] Another Bardal factor that often receives a lot of attention and certainly did here is  
the employee’s role or seniority within the company. This is because it is assumed that a person  
more senior, for example with managerial responsibilities, will find it more difficult to find  
similar re-employment because we only need so many presidents and CEOs.  
[31] A lot of time was devoted to a dispute about whether Mr. Wisser was a Business Coach  
or a Management Consultant. He was, in fact, both.  
[32] Mr. D’Ailly explained that, while CEM was a management consulting company, they did  
not want to be called management consultants. In other words, “management consultant” was not  
an official title within CEM to which Mr. Wisser was aspiring but had not reached. On the other  
hand, Mr. Wisser was forthright that he had no actual managerial or supervisory roles within  
[33] While Mr. Wisser’s role of Business Coach was very important to the business of CEM,  
Mr. Wisser was not in senior management, nor a key employee.  
[34] His long history of experience in the operations of many varied industries would have  
made him a good candidate for quick re-employment. Just not in 2015-2016.  
[35] Central to the Defendants’ case was the dire state of the industry at that time. They say  
that they let CEM die on the vine because there was just no management consulting work  
available. The corollary of that, of course, is that Mr. Wisser, who had been working in the  
consulting industry for 15 years, was going to be unlikely to find a way to replace that job and  
that income within a short period of time.  
[36] Based on all Mr. Wisser’s personal circumstances and the status of the consulting market  
at the time of his termination, I find that he should have received 10 months’ notice of  
Working Notice  
[37] CEM argues that, if I am unconvinced that 4 weeks’ pay was sufficient pay in lieu of  
notice of termination, then in the alternative, Mr. Wisser received working notice of his  
termination. CEM says this should either obviate or reduce his entitlement to damages.  
[38] In December of 2014, CEM secured a contract with Cheniere Energy Investments LLC in  
Texas, USA and assigned Mr. Wisser to this project. Mr. D’Ailly advised Mr. Wisser at that time  
that the Cheniere project would be Mr. Wisser’s last project with CEM. Mr. Wisser was in  
Page: 7  
complete agreement with this as the projected 23-year timeline for the Cheniere project,  
communicated to him by Mr. D’Ailly, coincided with his plans for retirement.  
[39] However, Cheniere terminated its contract with CEM only a few months into it. Both  
parties were clear that Mr. Wisser’s remaining time with CEM was tied to the completion of this  
contract but that mutual understanding was also premised on a much longer timeline for the  
Cheniere project. The early or premature termination of the Cheniere contract was unforeseen by  
either party and in my view, out of the control of either. While Mr. D’Ailly was critical of Mr.  
Wisser’s execution on this project, he was also clear that the crashing oil prices in 2015 spelled  
trouble for virtually all of CEM’s retainers, not just the Cheniere project.  
[40] I believe that both Messrs. D’Ailly and Wisser genuinely believed that the project would  
last 2-3 years when it was signed up in late 2014. However, any attempt by CEM to massage that  
into “working notice” must fail. Mr. Wisser had no ability to “save” the Cheniere project. The  
loss of that contract was never alleged to constitute cause for termination and cannot be laid at  
his feet.  
[41] I find that no effective working notice was given to Mr. Wisser.  
[42] As a claimant of damages, Mr. Wisser is obligated to try and minimize the damage for  
which his employer is responsible by trying to get another job as soon as reasonably possible. He  
is not obligated to take any job that is offered but he is obligated to look for, and possibly accept,  
a job that is suitable for him given his age, background and personal objectives.  
[43] It is the Defendants who must prove, as they have pleaded, that Mr. Wisser has failed to  
do this. All of this was well explained in Christianson v North Hill News Inc, 1993 ABCA 232:  
Bearing in mind the fact that wrongful dismissal suits are suits for breach of  
contract, assessing their damages follows familiar principles. One of the most  
familiar is the defence that the plaintiff failed to mitigate his or her damages, and  
that was pleaded and argued here. The most important and undoubted  
qualification on that defence is this. The efforts of the plaintiff will not be nicely  
weighed, particularly with hindsight. All that the plaintiff need do is to make what  
at the time is an objectively reasonable decision; he or she need not make the best  
possible decision. In particular, the courts will not usually expect one faced with a  
breach of contract to take steps which are risky or unsavory. The onus of proof is  
on the defendant (says Michaels v. Red Deer College, [1976] 2 S.C.R.  
324 [[1975] 5 W.W.R. 575]) and so any gap in the evidence accrues to the  
plaintiffs benefit.  
[44] In my view, the Defendants have failed to prove that Mr. Wisser did not adequately  
discharge his duty to look for replacement work. The only complaint even raised by the  
Defendants was that Mr. Wisser applied for some jobs for which a university degree was  
required and he did not have that level of education. It can be reasonably inferred that his lack of  
formal education would have made his job search more difficult but that does not mean he was  
obligated to take a much lower status or lower paying job, particularly with the amount of  
experience he had.  
Page: 8  
Mr. Wisser began applying for jobs immediately after his termination by CEM. He  
applied for employment insurance and so kept a job log in order to claim those benefits, which  
log was exhibited at trial. In my view, he was reasonably diligent in looking for work.  
[46] He did find employment as a Plant Manager with G&K Services beginning on August 4,  
2015 but was let go on September 18, 2015 while still in his probationary period. I was given no  
reason for that but, because it happened during his probationary period, that employer owed Mr.  
Wisser no explanation so no adverse inference against him should be drawn.  
[47] Mr. Wisser searched without success thereafter until securing employment with the  
Calgary Stampede in 2017.  
[48] I find that Mr. Wisser adequately mitigated his damages and that no adjustment to his  
damages should be made, other than the deduction of the severance received and the income  
earned from G&K Services.  
[49] To calculate damages, we must prorate Mr. Wisser’s gross wages and employer-provided  
benefits over the notice period and then deduct his mitigative income.  
[50] Under Mr. Wisser’s 2011 employment contract, he was entitled to an annual salary of  
$132,000 or $11,000 per month. His employer-funded “health and life benefits” were 4% of his  
gross salary or $440 per month. Mr. Wisser’s damages, which equate to 10 months’ salary and  
benefits, are therefore $114,400.  
[51] From this is deducted the $10,500 he was paid on termination plus the $9,279.99 he was  
paid by G&K Services during the 10-month notice period, leaving damages of $92,620.01.  
According to the Supreme Court (albeit in obiter), because Mr. Wisser has a statutory obligation  
to repay employment insurance benefits collected, there is no deduction from his damages for  
receipt of those benefits if any occurred during the notice period; Waterman v IBM Canada Ltd,  
2013 SCC 70 at para.44.  
Who Pays?  
[52] Now I turn to the thorny issue of corporate and personal liability. CEM was struck from  
the corporate registry in August of 2018 for failing to file its annual returns for 2017 and 2018.  
Although it was revived for this litigation, it has no assets with which to satisfy any judgment  
against it.  
[53] According to Messrs. D’Ailly and Asch, CEM’s business was struggling by late 2015 and  
into 2016, primarily because many of their clients were in oil and gas production and those  
commodity prices were severely depressed. As mentioned, Cheniere terminated its contract with  
CEM at that time, followed by many other clients. In an effort to rebrand and refresh its presence  
in the market, CEM changed its name to Forefront Performance Inc (FPI) in August of 2015.  
[54] That did not seem to help. No contracts were signed under the FPI name at that time. By  
2016, the other two shareholders had cashed out. Mr. D’Ailly recounted terminating virtually all  
the remaining employees in April of 2016. The attention of Messrs. D’Ailly and Ascah was  
focused elsewhere as they tried to find other sources of income for their own debts.  
Page: 9  
[55] If that were the end of the story, it is unlikely this claim would have proceeded this far.  
However, the way the company was wound down and the directors’ decision to start a new  
company doing the same work precipitated amendments to Mr. Wisser’s claim to allege  
oppressive conduct, allowing him to obtain judgment against solvent defendants.  
[56] On October 19, 2016, FPI had its last shareholders’ meeting, where Messrs. D’Ailly and  
Ascah purchased the “branding and methodology” of FPI for themselves for the amount of  
$10,000 each, agreeing to lease it back to FPI for a nominal amount but taking title to the  
intellectual property so described.  
[57] Although its source is not clear, the financial statements of FPI indicate that it had  
$87,379 of revenue between January 31, 2016 and January 31, 2017. This was offset by a  
number of expenses and liabilities including the principal’s shareholder loans but shows there  
was still some financial activity and some incoming revenues during the 2016 calendar year.  
[58] On September 23, 2016, 1994992 Alberta Ltd was incorporated with Messrs. D’Ailly and  
Ascah named as directors and holding 95% of the shares. The remaining 5% of 199 Alberta’s  
shares were issued to Steve Ramsey, a former employee of CEM who had remained with them  
after most of the other CEM employees had left Messrs. In fact, D’Ailly and Ascah rehired many  
of their former CEM employees to 199 Alberta. The FPI name was assigned to 199 Alberta Ltd.  
and 199 Alberta began to offer consulting services in much the same manner as had been done  
through CEM.  
[59] Mr. Wisser filed his Statement of Claim on May 13, 2015, shortly after his termination.  
He argues that, as the individual defendant directors took the remaining assets out of CEM in the  
face of his claim, he should have judgment against them. He also argues that since they  
abandoned CEM in the face of his claim only to start up the same or similar company which  
was very successful, booking revenues of $2.6M in its first year he should be able to look to  
199 Alberta for relief.  
[60] The individual Defendants and 199 Alberta say that there is no foul play here. They  
maintain that they allowed CEM to die a natural corporate death because it had no assets and no  
prospect of business. They maintain that they incorporated 199 Alberta in September of 2016 to  
capitalize on an opportunity to re-enter the marketplace as a new service provider with a new  
The Oppression Claim  
[61] Mr. Wisser claims that the above actions of the Defendants entitle him to relief under the  
oppression sections of the ABCA.  
[62] If Mr. Wisser qualifies to bring an oppression claim and if the business of CEM or any of  
its affiliates have been carried on in a manner that is oppressive or unfairly prejudicial to Mr.  
Wisser or which unfairly disregards his interests, I may make an order to rectify the results of  
that conduct.  
[63] Mr. Wisser must establish:  
1. that he is a “claimant” within s.239 ABCA and thus eligible to claim relief under  
the oppression sections of the ABCA;  
2. that he had reasonable expectations of the defendants which were not met; and  
Page: 10  
3. that the defendants’ failure to meet those expectations constitutes conduct that  
was oppressive or unfairly prejudicial or which unfairly disregarded his interests.  
[64] In this case, if those things were established on a balance of probabilities, we would then  
also need to consider whether the individual directors have any personal liability for Mr.  
Wisser’s damages.  
Is Mr. Wisser a “Complainant”?  
[65] In order to bring an oppression claim under the ABCA, Mr. Wisser must be a  
“complainant” within the meaning of Section 239 of that Act. Section 239(iii)(B) includes a  
creditor who, in the discretion of the Court, is a proper person to make an application under s.242  
[66] In First Edmonton Place Ltd v 315888 Alberta Ltd, McDonald, J (as he then was) held  
that parties applying under s.239(iii)(B) may be given leave to proceed where they have a direct  
financial interest in the company’s affairs but no ability to influence or change the decisions of  
management that affect their contingent claims; First Edmonton Place v 315888 Alberta Ltd,  
1988 CarswellAlta 103 at para.61.3  
[67] It is clear that the inclusion of contingent creditors as complainants is limited. I agree that  
oppression actions are not the proper avenue for typical debt claims. Although the case of Royal  
Trust Corp of Canada v Hordo is often cited in this regard, the following passage from that  
unusual case is helpful in delineating the parameters of standing for creditors:  
A creditor is not specifically defined as a complainantunder the CBCA and  
therefore creditors generally are not complainantsas of right. The court may  
use its discretion to grant or deny a creditor status as a complainant under s.  
238(d). It does not seem to me that debt actions should be routinely turned into  
oppression actions: see R. v. Sands Motor Hotel Ltd. (1984), 28 B.L.R. 122 (Sask.  
Q.B.); Canadian Opera Co. v. 670800 Ontario Inc. (1989), 69 O.R. (2d)  
532 (H.C.) at 536, affd (1990), 75 O.R. (2d) 720 (Div. Ct.); Jacobs Farms Ltd. v.  
Jacobs, [1992] O.J. No. 813 (Gen. Div.); First Edmonton, supra. I do not think  
that the courts discretion should be used to give a complainantstatus to a  
creditor where the creditors interest in the affairs of a corporation is too remote  
or where the complainants of a creditor have nothing to do with the circumstances  
giving rise to the debt or if the creditor is not proceeding in good faith. Status as a  
complainant should also be refused where the creditor is not in a position  
analogous to that of the minority shareholder and has no particular legitimate  
interest in the manner in which the affairs of the company are managed: Jacobs,  
supra, at pp. 12-14; Royal Trust Corp of Canada v Hordo 1993 CarswellOnt 147  
at para.14.  
[68] The converse of that, of course, is that creditors who can show a legitimate interest in the  
affairs of the company closer to a shareholder interest in a small company - may satisfy the  
court that they are a “proper person” within the meaning of the legislation.  
3 Note that McDonald, J was reversed on appeal but not directly on the issue of standing. Rather the Court of Appeal  
felt that the application for leave to bring a derivative action (ie under s.240 not s.242 of the Act) was premature and  
should await the outcome of the main action.  
Page: 11  
[69] Our Court of Appeal more recently overturned a chambers judge who denied standing to  
the trustee in bankruptcy on behalf of the company’s creditors in PricewaterhouseCoopers Inc v  
Perpetual Energy Inc:  
In order to qualify as a complainant, it is undoubtedly true that a creditor must  
demonstrate more than that it is owed a debt. However, the creditors of a  
corporation do have a legitimate interest in preventing management from  
conducting the business of the corporation a way that prevents it from satisfying  
its obligations. The creditors may not have any assurance that their debts will be  
paid, but they do have a reasonable expectation that the corporations business  
and assets will not be unfairly re-structured in such a way that payment of those  
debts becomes impossible; PricewaterhouseCoopers Inc v Perpetual Energy Inc,  
2021 ABCA 16 at para.24.  
[70] In this case, Mr. Wisser was an employee of relatively long service to a small company,  
the principals of which had known him for 10 years. It appears that his was the only claim  
outstanding at the time CEM ceased doing operations. His claim remained outstanding as CEM  
divested itself of its assets and its principals began making money under a new corporate  
What were Mr. Wisser’s Reasonable Expectations?  
[71] A claimant’s reasonable expectations will arise from his subjective expectations but must  
also square with an objective view of the relationships and facts specific to the case; In Re BCE  
Inc., 2008 SCC 69 at paras.71-71.  
[72] One of the factors for consideration discussed in BCE is the size of the company and the  
nature of the relationship. CEM was a very closely held company, ultimately having only two  
shareholders, Messrs. D’Ailly and Ascah. These were sophisticated businesspeople, having  
managed this and other businesses along the way. When they wound down CEM, they were well  
aware of Mr. Wisser’s claim and yet made no attempts to deal with it as part of moving on to  
their next business venture. This was not a situation in which other stakeholders with competing  
interests, other than their own, needed to be considered.  
[73] One only need put oneself in Mr. Wisser’s shoes for a moment to consider how unfair it  
would feel to advance a well-grounded claim for severance only to watch the corporate directors  
transfer the remaining assets of that company to themselves and then create a new company to  
carry on the same business but without any obligation to pay you the severance you were entitled  
to from the outset.  
[74] In my view, similar to the situation in Perpetual Energy, Mr. Wisser had a reasonable  
expectation that the corporations business and assets would not be unfairly re-structured to  
benefit management at his expense. I find that he is a proper person to advance the oppression  
claim as described herein.  
Was the Defendants’ conduct oppressive or unfairly prejudicial to Mr. Wisser or  
did it unfairly disregard his interests?  
[75] Stakeholders are entitled to expect fair treatment but this does not necessarily mean that  
their respective interests will prevail over others where in conflict. Indeed, stakeholders must  
expect that the director’s duty is to act in the best interests of the company; BCE at para.66.  
Page: 12  
[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  
[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  
Page: 13  
purpose of defeating Alouche’s claim. The Ontario Court of Appeal reversed this, saying as  
In our view, the trial judge failed to appreciate that the oppressiveconduct that  
causes harm to a complainant need not be undertaken with the intention of  
harming the complainant. Provided that it is established that a complainant has a  
reasonable expectation that a companys affairs will be conducted with a view to  
protecting his interests, the conduct complained of need not be undertaken with  
the intention of harming the plaintiff. If the effect of the conduct results in harm to  
the complainant, recovery under s. 248(2) may follow; para.56  
In our view, there is no question that the acts of Grad and Grosman, as the  
directors of Best Beaver, in causing the company to go out of business and  
transferring its assets to other companies within the group of companies they  
owned and operated in the spring of 1996 in the face of a trial scheduled to begin  
a few months later, effected a result that was unfairly prejudicial to, or that  
unfairly disregarded the interests of, Alouche as a person who stood to obtain a  
judgment against Best Beaver. Moreover, there was nothing that Alouche could  
have done to prevent the effective winding-up of Best Beaver; para.60  
It was the reasonable expectation of Alouche that Grad and Grosman, in  
terminating the operations of Best Beaver and leaving it without assets to respond  
to a possible judgment, should have retained a reserve to meet the very  
contingency that resulted. In failing to do so, the benefit to Grad and Grosman, as  
the shareholders and sole controlling owners of this small, closely held company,  
is clear. By diverting the accumulated profits of Best Beaver to other companies  
that they owned, they were able to insulate these funds from being available to  
satisfy Alouches judgment; para.62  
[84] Although most cases considering Downtown Eatery have focused on the application of  
the common employer doctrine, the Alberta courts have followed this approach to the oppression  
remedy in similar cases. Although the conduct of judgment-proofing the defendant company was  
more egregious and more deliberate in 1007374 Alberta Ltd v Ruggieri, Justice Rowbotham  
writing for a unanimous court said as follows:  
The appellants acknowledge that the trial judge identified the correct test for  
oppression. In relation to creditors, the focus is on whether the effect of the  
corporations conduct is unfairly prejudicial or unfairly disregards the interest of  
the creditor. The court must determine the reasonable expectations of the creditor.  
Those reasonable expectations include the expectation that the debtor will: (i) not  
convey away for no consideration exigible assets which will leave the creditor  
unpaid; and (ii) honour the understanding and expectation that the debtor has  
created and encouraged: see MA Springman et al, Frauds on Creditors:  
Fraudulent Conveyances and Preferences (Toronto: Thompson Reuters Canada  
Limited, 2009) at 24-13, 24-16 and BuildersFloor Centre Ltd. v. Thiessen, 2013  
ABQB 23 (Alta. Q.B.) at para 89, (2013), 554 A.R. 152 (Alta. Q.B.).  
Page: 14  
The appellants contend that the failure to pay or appeal the first judgment  
(without more) is not a basis for finding oppression. While we acknowledge that a  
debt action should not be routinely turned into an oppression action, the conduct  
of the appellants is considerably more than the mere failure to pay a judgment or  
appeal that judgment. This record amply supports the trial judges finding that the  
appellants set out on a deliberate course of conduct to strip Ruggieri Engineering  
of its exigible assets. They encumbered Ruggieri Engineering with the general  
security notes and promissory notes. They paid off other creditors of Ruggieri  
Engineering and moved Ruggieris Engineerings business to Alberta  
These actions affected a result that was unfairly prejudicial to the respondent and  
disregarded its interests.  
1007374 Alberta Ltd v Ruggieri, 2014 ABCA 205 at paras.7-9  
[85] In another recent case, Hughes, J (as she then was) found similarly:  
Additionally, I find Mr. Carters conduct after Ms. Vaillancourts wrongful  
termination was oppressive. He allowed Encotts assets, including dividends and  
the franchise agreements, to be removed from Encott and transferred to Champion  
Weight Management, another corporate entity that he owns and controls, while  
this litigation was pending. He left Encott without assets, and dissolved the  
company by misleading the Alberta Corporate Registrar. The effect of these  
actions was to unfairly disregard Ms. Vaillancourts interests: BuildersFloor  
Centre Ltd. v. Thiessen, 2013 ABQB 23, 75 Alta. L.R. (5th) 62 (Alta. Master), at  
paras 92-93; Schreiber Foods Inc. v. Wepackit Inc., 2013 ONSC 338, 11 B.L.R.  
(5th) 157 (Ont. S.C.J.); Downtown Eatery (1993) Ltd. v. Ontario (2001), 54 O.R.  
(3d) 161, [2001] O.J. No. 1879 (Ont. C.A.).  
It was improper to dissolve Encott knowing this litigation was pending and to not  
have retained a contingency fund to pay for a potential judgment.  
Vallaincourt v Carter, 2016 ABQB 492 at paras.113-114  
[86] I did not have extensive empirical evidence about CEM’s finances at the time that Mr.  
Wisser made his claim.  
[87] I do know that, despite their dismissive description of the value of CEM’s intellectual  
property at trial, they formally valued it at $20,000 and transferred it to themselves personally. I  
also know that they must have attributed some goodwill to the name Forefront Performance Inc  
because they allowed 199 Alberta to use the name for no consideration and proceeded to profit  
from contracts signed under that name.  
[88] I also know that CEM had some revenue from accounts receivable before and after Mr.  
Wisser’s claim was made and yet made no contingency available therefor. Further, 199 Alberta  
enjoyed significant revenues in the years between Mr. Wisser making his claim and the hearing  
of this trial.4  
4 In the converse of the procedure in Downtown Eatery, Mr. Wisser abandoned an earlier trial date in order to add  
his claims of oppression against 199 Alberta and the individual Defendants, which delayed the hearing of this  
Page: 15  
[89] Even though avoiding Mr. Wisser’s claim may not have been the driver of the  
restructuring from CEM to 199 Alberta (although no other logical reason was ever provided), it  
is the prejudicial and disregarding effects of these acts that qualifies them as oppressive.  
[90] 199 Alberta was allowed to take all the benefits that flowed from CEM’s business,  
including its intellectual property, its goodwill and management experience with none of CEM’s  
relatively minor obligation to its employee. I find that 199 Alberta is therefore liable for the  
damages suffered by Mr. Wisser as a result of his wrongful termination by CEM.  
Are the Defendants Personally Liable for Oppression?  
[91] Even where conduct has been actionably oppressive, entitling a claimant to relief, there is  
yet further scrutiny applied before those damages can be recovered from the individual directors.  
Specifically, it must be “fit and fair” to fix the individual directors and officers with liability for  
oppressive conduct.  
[92] This “fit and fair” test comes from Budd v Gentra, [1998] OJ No. 3109 (CA). The  
complainant was a shareholder of Royal Trustco who opposed the sale of Royal Trustco’s assets  
to RBC. He complained that the majority of shareholders were controlled by an entity, the  
relationship to which was not disclosed to the shareholders. He also complained about other  
failures to disclose, including changes to Royal Trustco’s lending policies and the dire nature of  
its true financial position; Budd paras.12-17.  
[93] The Ontario Court of Appeal rejected the idea that personal liability could only be found  
where the oppressive act was committed by an individual rather than of the company, although  
the conduct must still have been done qua director or officer if it is to afford access to the  
remedial powers under the oppression remedy; Budd, paras.33-42. Further, there must be a  
proper basis on which to require the directors or officers to reach into their own pockets to  
compensate aggrieved persons; Budd, para.52. This could be where they have personally  
benefited from the conduct at the expense of the complainant, have misused their power or  
breached their duties as directors and officers; Budd, para.47.  
[94] Budd was approved by the Supreme Court of Canada in Wilson v Alharayeri, 2017 SCC  
39. Wilson, a director, was sued by Alharayeri, whose shares in the company were devalued after  
a private placement of further common shares, which transaction excluded him. Wilson argued  
for a very restrictive test, under which personal liability would require proof that a director had  
acted in bad faith for his own personal gain; Wilson, para.37. The Court rejected that standard,  
saying that evidence of bad faith was an important consideration but not a necessary finding to  
impose personal liability, as a finding of oppression rests more on the result of the conduct than  
the intention of its perpetrators; Wilson, paras.41-43.  
[95] Rather, the director must first be implicated by exercising or failing to exercise his or her  
powers in furtherance of the oppressive conduct. Then, it must also be “fit in all the  
circumstances” to impose personal liability for oppression on the director(s) involved; Wilson,  
[96] In Ruggieri, the trial judge had declined to find the new company liable because, as here,  
the plaintiff had no direct dealings with the new company. However, the trial judge then signed a  
Judgment Roll declaring all the defendants to be jointly and severally liable. The Court of  
Appeal upheld the joint and several judgments against all the defendants, saying:  
Page: 16  
Although the Business Corporations Act focuses specifically on the acts and  
omissions of the corporation, in a small closely held corporation it is the director,  
here Antonio Ruggieri, who is the source of the conduct. When a director  
exercises power in a manner that is unfairly prejudicial or unfairly disregards the  
interests of the complainant, liability may lie with the director: Sidaplex-Plastic  
Suppliers Inc. v. Elta Group Inc. (1998), 40 O.R. (3d) 563, 111 O.A.C. 106 (Ont.  
C.A.). Accordingly, we find no reviewable error in the trial judges direction that  
there should also be a remedy under the Business Corporations Act personally  
against Antonio Ruggieri. He personally benefitted from the oppressive conduct.  
He has continued in the same business without losing a days work or income,  
and has received over $800,000 in management fees from Alberta Engineering.  
In his reasons for judgment the trial judge declined to impose liability against  
GMR and Alberta Engineering because the respondent had no direct dealings with  
those entities: paras 124 and 125. However, the judgment roll imposes liability  
jointly and severally against all the appellants. An appeal is from the judgment,  
not the reasons for judgment: Canadian Pacific Railway v. Blain (1905), 36  
S.C.R. 159 (S.C.C.) (available on ). Moreover, there is authority for the  
imposition of liability against the companies to which assets were  
transferred: Bull HN Information Systems Ltd. v. L.I. Business Solutions  
Inc. (1994), 23 Alta. L.R. (3d) 186, 161 A.R. 268 (Alta. Q.B.) and T. Films S.A. v.  
Cinemavault Releasing International Inc., 2015 ONSC 6608 (Ont. S.C.J.)  
(available on ).  
1007374 Alberta Ltd v Ruggieri, at paras.10-11.  
[97] In this case, Messrs. D’Ailly and Ascah were clearly acting in their capacity as the only  
two directors and shareholders of CEM when they transferred its assets to themselves, ceased  
operations of CEM, started up the same operations under the same trade name but with a new  
corporate identity with themselves as directors and majority shareholders again.  
[98] 199 and the individual directors enjoyed and continue to enjoy the profitability of that  
new company without regard to the interests of their former employee who had advanced his  
meritorious claim in a timely way.  
[99] As in Ruggieri, I see no reason why Mr. Wisser’s judgment for $92,620.01 should not lie  
against all the named Defendants jointly and severally.  
Punitive Damages & Costs  
[100] There is no award of punitive damages. As I have explained, I did not make any findings  
of bad faith on the part of the individual defendants nor would I have characterized their actions  
as malicious or high-handed, which is a prerequisite to making an order for relief under the  
oppression sections of the ABCA.  
Page: 17  
[101] If the parties are unable to agree on the disposition of costs, they may contact my office.  
Heard on the 22nd day of November, 2021.  
Dated at the City of Calgary, Alberta this 14th day of June, 2022.  
M.H. Hollins  
Mr. Charles Osuji and Mr. Kwon  
for the Plaintiff  
Mr. Tyler F. Derksen and Ms. Aman K. Rai  
for the Defendants  

© 2019 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission