This case discusses the tests for deciding whether two corporations are associated based on common control. It details the factors for considering whether a person has de facto (effective) control as opposed to de jure (based on shareholdings) control.
"[44] However, the Federal Court of Appeal’s 2003 decision in Mimetix Pharmaceuticals appears very clear as it upheld the trial judge with brief oral reasons from Justice Rothstein and concluded she did not make any error of law when it was clear from her reasons that she decided based on considerations of who controlled day‑to‑day operations, who made all the decisions, who signed all the business agreements invoices and cheques, and who was in a position to exert economic pressure in order to have its will prevail with respect to the business and with respect to the corporation (not just over the de jure control shareholder).
[45] Most recently the Federal Court of Appeal in 2006 upheld this Court’s decision in Plomberie Langlois wherein Justice Lamarre‑Proulx had placed considerable emphasis on fact that one of the two unrelated non‑controlling 50‑50 shareholders was the sole director and had the last say in any decisions to be made, whereas the other shareholder only had an operational role not a decision‑making role. ...
[46] After considering Plomberie Langlois and Mimetix Pharmaceuticals, the issue appears to have been very clearly addressed and settled by the Federal Court of Appeal in a manner that this Court is not free to reconsider. I will therefore be considering such broader manners of influence in applying the Silicon Graphics meaning of de facto control to the particular facts of this case. I have no doubt that this is the correct approach.
[47] The Supreme Court of Canada in Duha Printers emphasized that, when considering and applying the de jure control test, it is important to recognize at the outset that the de jure test is really an attempt to ascertain who was in effective control, in law, of the affairs and fortunes of the corporation. I see no reason for this mandated approach to de jure control to not similarly apply to de facto control, such that, in considering and applying the de facto control test, factors and considerations, this Court should be attempting to determine who is, in fact, in effective control of the affairs and fortunes of the corporation.
[49] Firstly, overall it is simply hard to imagine how Mr. Howard could have had anymore effective de facto day‑to‑day control, or greater long‑term control, over the management and operation of the Appellant and its business than he enjoyed. Similarly, it is hard to imagine how Mrs. Howard could have had or exercised much less effective de facto control. Indeed, the evidence of Mr. Howard is that this is precisely what was intended from the outset and throughout.
[50] Mr. Howard was the sole director and President and Secretary of the Appellant. He was the Operations Director and General Manager of all three restaurants including that of the Appellant. The General Manager of the Appellant’s restaurant reported to him. He did not need to obtain his wife’s approval or consult with her to make any decisions in these capacities.
[51] Mr. Howard was the person who had all of the discussions, negotiations and communications with Keg Restaurants Ltd., the franchisor, concerning the Appellant’s franchise restaurant. He alone had a decades long history with Keg Restaurants Ltd. He alone had experience running, managing and/or operating a Keg or any other restaurant.
[52] Mr. Howard alone sought the needed business‑related advice on behalf of the Appellant. The advice was given to him. He decided on the recommended course of action after minor and limited communication and consultation with his wife, and he alone implemented it.
[53] Mr. Howard had his companies arrange for the Appellant’s banking and financing. He had his companies provide the Appellant’s management, accounting and head office services and functions. The Appellant’s finances were integrated into GRR. The Appellant only ever used GRR’s bank account.
[54] Mr. Howard sought and obtained Keg Restaurants Ltd.’s consent to the assignment of GRR’s franchise to the Appellant. He obtained this only after he assured them nothing would change with the management, operations and running of the Appellant and its restaurant.
[55] Mr. Howard owned the company that owned the McGillivray location land and building, and was the Appellant’s landlord for it sole premises for its sole business. The agreed rent charged and paid was set by Mr. Howard.
See McGillivray Restaurant Ltd. v. The Queen, 2014 TCC (Boyle)
"[44] However, the Federal Court of Appeal’s 2003 decision in Mimetix Pharmaceuticals appears very clear as it upheld the trial judge with brief oral reasons from Justice Rothstein and concluded she did not make any error of law when it was clear from her reasons that she decided based on considerations of who controlled day‑to‑day operations, who made all the decisions, who signed all the business agreements invoices and cheques, and who was in a position to exert economic pressure in order to have its will prevail with respect to the business and with respect to the corporation (not just over the de jure control shareholder).
[45] Most recently the Federal Court of Appeal in 2006 upheld this Court’s decision in Plomberie Langlois wherein Justice Lamarre‑Proulx had placed considerable emphasis on fact that one of the two unrelated non‑controlling 50‑50 shareholders was the sole director and had the last say in any decisions to be made, whereas the other shareholder only had an operational role not a decision‑making role. ...
[46] After considering Plomberie Langlois and Mimetix Pharmaceuticals, the issue appears to have been very clearly addressed and settled by the Federal Court of Appeal in a manner that this Court is not free to reconsider. I will therefore be considering such broader manners of influence in applying the Silicon Graphics meaning of de facto control to the particular facts of this case. I have no doubt that this is the correct approach.
[47] The Supreme Court of Canada in Duha Printers emphasized that, when considering and applying the de jure control test, it is important to recognize at the outset that the de jure test is really an attempt to ascertain who was in effective control, in law, of the affairs and fortunes of the corporation. I see no reason for this mandated approach to de jure control to not similarly apply to de facto control, such that, in considering and applying the de facto control test, factors and considerations, this Court should be attempting to determine who is, in fact, in effective control of the affairs and fortunes of the corporation.
[49] Firstly, overall it is simply hard to imagine how Mr. Howard could have had anymore effective de facto day‑to‑day control, or greater long‑term control, over the management and operation of the Appellant and its business than he enjoyed. Similarly, it is hard to imagine how Mrs. Howard could have had or exercised much less effective de facto control. Indeed, the evidence of Mr. Howard is that this is precisely what was intended from the outset and throughout.
[50] Mr. Howard was the sole director and President and Secretary of the Appellant. He was the Operations Director and General Manager of all three restaurants including that of the Appellant. The General Manager of the Appellant’s restaurant reported to him. He did not need to obtain his wife’s approval or consult with her to make any decisions in these capacities.
[51] Mr. Howard was the person who had all of the discussions, negotiations and communications with Keg Restaurants Ltd., the franchisor, concerning the Appellant’s franchise restaurant. He alone had a decades long history with Keg Restaurants Ltd. He alone had experience running, managing and/or operating a Keg or any other restaurant.
[52] Mr. Howard alone sought the needed business‑related advice on behalf of the Appellant. The advice was given to him. He decided on the recommended course of action after minor and limited communication and consultation with his wife, and he alone implemented it.
[53] Mr. Howard had his companies arrange for the Appellant’s banking and financing. He had his companies provide the Appellant’s management, accounting and head office services and functions. The Appellant’s finances were integrated into GRR. The Appellant only ever used GRR’s bank account.
[54] Mr. Howard sought and obtained Keg Restaurants Ltd.’s consent to the assignment of GRR’s franchise to the Appellant. He obtained this only after he assured them nothing would change with the management, operations and running of the Appellant and its restaurant.
[55] Mr. Howard owned the company that owned the McGillivray location land and building, and was the Appellant’s landlord for it sole premises for its sole business. The agreed rent charged and paid was set by Mr. Howard.
See McGillivray Restaurant Ltd. v. The Queen, 2014 TCC (Boyle)
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