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[52] […] Fairness requires that, where “relief is justified to correct an
oppressive type of situation, the surgery should be done with a scalpel, and
not a battle axe”. Where there is a personal benefit but no finding of bad faith,
fairness may require an order to be fashioned by considering the amount of the
personal benefit. In some cases, fairness may entail allocating responsibility
partially to the corporation and partially to directors personally. For example, in
Wood Estate, a shareholder made a short-term loan to the corporation with the
reasonable expectation that it would be repaid from the proceeds of a specific
transaction. Those proceeds were instead applied to corporate purposes, as well
as to repayment of the loans made to the corporation by the defendant directors
and officer and by another shareholder. D. M. Brown J. held the defendant
directors and officer liable for the amounts used to repay their own loans and the
shareholder loan, and also ordered the corporation to pay an equal amount
towards the balance of the loan. As this last example shows, the fairness principle
is ultimately unamenable to formulaic exposition and must be assessed on a case-
by-case basis having regard to all of the circumstances.
[53] Second, as explained above, any order made under s. 241(3) should go
no further than necessary to rectify the oppression. This follows from s. 241’s
remedial purpose insofar as it aims to correct the injustice between the parties.
[54] Third, any order made under s. 241(3) may serve only to vindicate the
reasonable expectations of security holders, creditors, directors or officers in their
capacity as corporate stakeholders. The oppression remedy recognizes that,
behind a corporation, there are individuals with “rights, expectations and
obligations inter se which are not necessarily submerged in the company
structure”. But it protects only those expectations derived from an
individual’s status as a security holder, creditor, director or officer.
Accordingly, remedial orders under s. 241(3) may respond only to those
expectations. They may not vindicate expectations arising merely by virtue
of a familial or other personal relationship. And they may not serve a purely
tactical purpose. In particular, a complainant should not be permitted to
jump the creditors’ queue by seeking relief against a director personally. The
scent of tactics may therefore be considered in determining whether or not
it is appropriate to impose personal liability on a director under s. 241(3).
Overall, the third principle requires that an order under s. 241(3) remain rooted in,
informed by, and responsive to the reasonable expectations of the corporate
stakeholder.
[55] Fourth — and finally — a court should consider the general corporate
law context in exercising its remedial discretion under s. 241(3). As Farley J.
put it, statutory oppression “can be a help; it can’t be the total law with
everything else ignored or completely secondary”. This means that director
liability cannot be a surrogate for other forms of statutory or common law relief,
particularly where such other relief may be more fitting in the circumstances.
[Emphasis added, references omitted]