Volume IV

Issue : 2: January 26, 2006

• Importation Held to Infringe Copyright Despite the Absence of Initial Infringement
• Nevada Court Rules Google Cache Feature Constitutes "Fair Use"
• Google Resists U.S. Government Motion to Compel Disclosure of Search Information
• Yahoo Loses Nazi Memorabilia Free Speech Case
• Ontario Court Finds Collaboration Necessary to Facilitate Document Production in the Electronic Age
• U.K. Plans to Host Global Online Gambling Summit
• Korea Will Not Prosecute Personal Downloaders
• Australian Online Bookie First to Get Licence
• Utah Fines B.C. Based Pornography Website
• California Court of Appeal Upholds Microsoft Class Action Settlement
• Alberta Court of Appeal Asserts that Corporations Cannot Hide Behind Privacy Laws
• U.S. Patent Office Upholds Microsofts File System Patents
• Sony Obtains $6 Million in Statutory Damages for Mod Chip Sales

Home > Volume IV > Issue 2: January 26, 2006 > Alberta Court of Appeal Asserts that Corporations Cannot Hide Behind Privacy Laws

Alberta Court of Appeal Asserts that Corporations Cannot Hide Behind Privacy Laws

Section 21 of the Canada Business Corporations Act (“CBCA”) requires corporations on request by a shareholder to provide a list setting out the names of the shareholders of the corporation, the number of shares owned by each shareholder and the address of each shareholder as shown on the records of the corporation. The request of a shareholder must be accompanied by payment of a reasonable fee and an affidavit setting out the name and address of the applicant and a statement that the information contained in the securities register will not be used except pursuant to section 21(9) of the CBCA.

In EnCana Corporation v. Douglas (“EnCana”), this is exactly what Douglas, a shareholder of EnCana, and sole director, officer and shareholder of Douglas Resources Ltd. (“Douglas Resources”) attempted to do. Douglas applied, under section 21 of the CBCA, for a list of the shareholders of EnCana, and its predecessor companies, Pan Canadian, and Alberta Energy. Thereafter, through his company Douglas Resources, he sought to identify potentially lost shares in these companies and used the information associated with the securities register and potential lost shares in order to find the shareholder and unite the shares with their rightful owner for a fee.

EnCana resisted the application, arguing that Douglas’ intended use of the information would violate the Personal Information Protection and Electronic Documents Act and the Alberta Personal Information Protection Act, and that it was not an authorized use under section 21(9) of the CBCA. The Alberta Court of Appeal allowed the appeal stating that privacy legislation does not modify the obligation required by section 21 of the CBCA where the information is being provided as required by law. Furthermore, the Court ruled that the use which Douglas planned to make of the information simply had to be a matter relating to the “affairs of the corporation” under s. 21(9)(c) of the CBCA. The court then referred to the definition of “affairs” in the CBCA to indicate that any use of the securities register that involves communication between shareholders- as shareholders, or regarding the corporation, directors and/or officers is an allowable use.

The Court also noted that both Douglas, as a shareholder, and Douglas Resources, as a corporation, are able to access the securities register of EnCana under s. 21 of the CBCA as subsection (3) states that shareholders and, if the corporation is a distributing corporation, any other person, may on application require the corporation or its agent to furnish a list, with “person” being defined under s. 2(1) to include a body corporate.

Simply put, the Court’s decision stressed that “a corporation cannot hide behind general privacy law to deprive shareholders access to the securities register…”

For a copy of the decision (Court of Appeal), visit:

EnCana Corporation v. Douglas as