2012 BCSC 1090 Northern Minerals Investment Corp. v. Mundoro ...

2012 BCSC 1090 Northern Minerals Investment Corp. v. Mundoro Capital Inc.
[3] Both the petitioner and the respondent are British Columbia corporations incorporated pursuant to the
Business Corporations Act, S.B.C. 2002, c. 57 (the “Act”). The petitioner holds 3,183,500 of the 37,911,776
shares of the respondent. It does not appear to be disputed that the company is widely held with over 1000
shareholders, the majority of whom are retail as opposed to institutional shareholders.
[4] On April 20, 2012 the respondent gave notice of its AGM scheduled for June 26, 2012 with the record
date fixed as of May 22, 2012.
[5] On May 22, 2012 the respondent issued a management information circular stating that the items of
business to be considered at the AGM were to receive financial statements, elect directors and reappoint the
auditors. The circular also advised that the respondent had retained Laurel Hill Advisory group to solicit
proxies.
[6] On or about June 11, 2012 the respondent issued a press release announcing that the board of
directors had approved an “Advance Notice Policy” (the “Policy”) in order to fix a deadline by which time
shareholders were required to submit nominations for directors. The Policy provided, inter alia, that only
such nominated persons would be eligible for election as directors, that the chairman of the meeting had the
power and duty to determine whether a nomination was made in accordance with the Policy and that the
board in its sole discretion could waive any requirement of the Policy.
[7] The petitioner’s counsel gave notice on June 13, 2012 to counsel for the respondent that they were of
the view that there was no legal basis for such a Policy and failing acknowledgement of that being the case
the petitioner would seek short leave to have the matter resolved by the court prior to the close of business
on June 15, 2012. Short leave was granted on June 14, 2012. The application was heard June 15, 2012.
[8] On June 14, 2012 the respondent issued a press release postponing the AGM from June 26, 2012 to
August 27, 2012 indicating as well that the shareholders would be asked to approve the Policy. A letter
attached to the press release purported to change the record date from May 22, 2012 to July 27, 2012.
Issues
[9] The petitioner seeks the following relief:
a) a declaration that the Policy is unenforceable;
b) an order that the respondent not disallow any nominations of a person for election on the basis of
the Policy;
c) an order that the respondent be prevented from postponing or adjourning the June 26, 2012 AGM;
and
d) an order preventing the respondent from changing the record date.
[10] The respondent seeks dismissal of the petition.
http://www.courts.gov.bc.ca/jdb-txt/SC/12/10/2012BCSC1090.htm[10/22/2012 1:37:45 PM]