Oppression Remedy vs Derivative Action Essay Example for Free

Oppression Remedy vs Derivative Action Essay Many people from different corporations are engaged in many legal cases, mostly people uses their influence to win cases which leads to the minority being harmed in the process since they have no options of retaliating. For example, directors of corporation can engage in wrongdoing by taking some of the profits of the corporation for themselves. The corporation can therefore sue the directors like a normal person (Smyth et al. 628). The minorities that get harmed are the board members of minority shareholders. There are two remedies that minorities can use in protecting themselves from the power of the majority which include the Oppression Remedy and the Derivative Action. The two remedies that are used by the minorities are similar but defer slightly and therefore people need to understand when to use the different remedies. Oppression Remedy is used by shareholders in bringing actions against the companies that conduct unfair practices towards the shareholders. In cases of oppression remedy, the court is allowed to makes a judgment that is fair and suitable regarding the situation where that complainant has been oppressively and unfairly treated (Smyth et al. 629). The Derivative action is used by the shareholders in taking actions on behalf of the corporation against the top managements of the corporation. When a director of corporation has done any wrong such as violating duties that are fiduciary to the shareholders, the shareholders can take actions by suing the directors of the corporation (Smyth et al. 28). The oppression remedy are usually used when the minority have been frozen out or deadlocked. The oppression remedy is also used when the relationship between majority shareholder and minority shareholder has broken down. The shareholders that own shares in corporation are empowered by the oppression remedy to sue the corporations in cases where the corporations have oppressed and prejudiced unfairly the shareholders interests as stated by Goddard in the article â€Å"Canada: Ontario: The Relationship between the Oppression Remedy and Derivative Action. Minority have also been affected in the corporations that are run by the rules of the majority since the minorities have fewer contributions to the corporations’ business practices and direction. In this case, many corporations have been found be taken over by the majorities’ shareholder. The majorities also make the decisions of the companies leading to oppression of the minorities. Oppression remedies are used to bring justices in the case where the majorities hand over the company to their children leading to oppression to the minorities. The oppression remedy is widely used in places such as Canada (Ellyn 15). The real life cases that will be discussed in this paper include the case of Waxman et al. v. Waxman et al. Others cases that will be discussed include the cases of Alizadeh et al. v. Akhavan et al. , Deluce Holdings Inc. v. Air Canada, Knudstrup v. Superior Court, McRedmond v. Est. of Marianelli, Ford v. OMERS and Foss v Harbottle. Definition of terms of Oppression Remedy and Derivative Action Oppressive conducts are conducts that are committed by the majority to the minority shareholders that lead to the use of the oppression remedy. Court Ordered meetings as stated by the section 106(1) of the Ontario Business Corporations Act are meetings which the court orders to be held as the courts direct when the shareholders have been allowed to be part of the corporation meetings. In the derivative action, a complainant as defined by section 245 of the OBCA is a person such as the director, officer, registered holder who makes the application of bringing the action to court on behalf of the corporation (Ellyn 9). Good faith is a term that has not been defined in the statutes of the corporate law since cases are analyzed on terms of bad faith indications. Costs are defined according to the Canadian common law as the court power to award the legal expenses of the successful party that are paid by the losing party (Ellyn 11). In the oppression remedy, a complainant according to the section 245 of the OBCA is defined as a person who applies an action that has been conducted by the corporation to the court (Ellyn 15). Investigations are effective exercises that are conducted in case of the oppression to find out the relevant information of the case. It is provided by section 161(2) of the OBCA that investigations are ordered by the court when corporations have been engaged in unlawful business practices (Ellyn 22). Appraisal remedy is the shareholders’ appraisal right for the company to purchase the shares of the shareholder at a fair value under some circumstances like when the shareholder is holding 10% or less of the shares that are outstanding (Ellyn 24). Winding-up is courts order under the just and equitable doctrines to dissolute the corporation under certain circumstances of the oppression of the minority shareholders (Ellyn 25). Examples of Oppression Remedy v.  Derivative Action that have succeeded or failed One of the cases where the oppression remedy succeeded was the case of Waxman et al. v. Waxman et al. In this case the minority, Morris Waxman recovered around $50 million from the case after he was dismissed and excluded from the family business by the majorities his brother Chester Waxman and others (Ellyn 15). Another case in which the oppression remedy succeeded is the case of Deluce Holdings Inc. v. Air Canada. In this case, Deluce Holdings the minority shareholder was terminated as the CEO by the Air Canada who was the majority shareholder. The representatives of Air Canada wanted the postponement of the arbitration proceedings of the case but Justice Blair of the Ontario Superior Court ensured that the remedy action was preceded (Ellyn 21). The case in which the oppression remedy failed is the case of Alizadeh et al. v. Akhavan et al. In this case, the minority shareholder was awarded the oppression remedy since the judge of the Ontario Superior Court had restored the management fees payments without making conclusions of the oppression allegations merits (Ellyn 19). The case of the derivative action that has failed is the case of Knudstrup v. Superior Court. In this case, the minority shareholder was not granted the remedy since the case was brought on behalf of the defendant. One of the cases of the derivative action that succeeded is the case of McRedmond v. Est. of Marianelli. In this case the plaintiff was awarded the verdict. One of the cases of the derivative action that failed is the case of Ford v. OMERS. In this case, the supreme court of Canada rejected the motion to appeal (Koehnen 1). Lastly, the case of the oppression remedy that failed is the case of Foss v Harbottle as stated by Griggs in the article â€Å"He Statutory Derivative Action: Lessons That May Be Learnt from Its Past! Analysis of the Results of Aforementioned Examples In the case of Waxman et al. v. Waxman et al. the minority, Morris Waxman recovered around $50 million from the case after he was dismissed and excluded from the family business by the majorities his brother Chester Waxman and others. In this case, the verdict was fair since even though the minority was oppressed, he ended up being compensated for the oppression since he was awarded the oppression remedy (Ellyn 15). In the case of Deluce Holdings Inc. v. Air Canada, Deluce Holdings the minority shareholder was terminated as the CEO by the Air Canada who was the majority shareholder. The representatives of Air Canada wanted the postponement of the arbitration proceedings of the case but Justice Blair of the Ontario Superior Court ensured that the remedy action was preceded. In this case, the verdict was also fair and just to the minority due to the fact the minority was awarded the oppression remedy after being oppressed by the majority Air Canada (Ellyn 21). In the case that the oppression remedy failed which is the case of Alizadeh et al. v. Akhavan et al. the minority shareholder was awarded the oppression remedy. The judge of the Ontario Superior Court had restored the management fees payments without making conclusions of the oppression allegations merits (Ellyn 19). The case of the derivative action that has failed is the case of Knudstrup v. Superior Court. In this case, the minority shareholder was not granted the remedy since the case was brought on behalf of the defendant. One of the cases of the derivative action that succeeded is the case of McRedmond v. Est. of Marianelli. In this case the plaintiff was awarded the verdict. Another case relating to derivative action that failed is the case of Ford v.  Omers. In this case, the supreme court of Canada rejected the motion to appeal (Koehnen 1). Lastly, the case of the oppression remedy that failed is the case of Foss v Harbottle as stated by Griggs in the article â€Å"He Statutory Derivative Action: Lessons That May Be Learnt from Its Past! † Preference of Oppressive Remedy Oppressive remedy intends to correct the anomaly that occurs when minority shareholders are unable to exercise control of a corporation due to nature of these organizations to adopt decisions based on majority shareholder. It allows the minority shareholders to undertake legal action against the company to correct discriminatory practices (Ellyn 15). The minority shareholders must provide evidence to the court presiding over the arbitration that injustice has been done on them through, discrimination, unfair treatment or isolation from decisions of running the corporation (Smyth et al 629). The court exercise great authority on the matter of oppressive remedy at it own discretion once there is evidence that oppression occurred to the minority party as provided by acts specified in oppressive remedy law. The court also allows and presides over oppressive conduct that were committed long before this law was adopted and come into force. Additionally, it provides no time limit on which to file a case after it occurs, thereby eliminating loopholes within the act (Ellyn 15). To this effect, a court in addressing oppression in minority has power to overrule the decision and transaction undertaken by the company, and among other things enforce acts as contained in oppressive law remedy . However the complainant as pertains to oppressive remedy must be able to provide sufficient evidence that proves the company directives or its subsidiaries and affiliates resulted in its oppression, or in the manner in which directors of the company exercised their power (Ellyn 15). The court in oppressive remedy arbitration has the only mandate to determine if oppression occurred to minority party, in so doing; it will disregard actions done in good faith by management in implementing decisions, which can be used as mitigation by the accused. This leeway forms the hallmark in oppressive remedy cases arbitration (Ellyn 15). The court requires that the plaintiff express reasonable expectations while instigating cases, what it calls legitimate expectation of a shareholder in line with oppressive remedy act. Legitimate expectation in this case refers to valid expected outcomes as provided in the company acts and provisions, and based on general trends of the company. This means while instituting a case the claimant should without prejudice seek to address valid issues as contained in companies statutes and memorandum of understanding, which is left for the court to decide. This in essence limits the arbitration redress that is sought to what the court consider legitimate expectations (Ellyn 17). However, unlike derivative action, oppressive remedy provides broad spectrum of ruling that might be sought by plaintiff under this act to include such actions like order to seek an appointment of receiver manager, amendment of company act, appointment of addition directors, orders to seek closure of a company, or suspend company transactions. The court can also award payment and provision of legal fees to the plaintiff if it is sought in the dispute (Ellyn 17). Oppression remedy like, in derivative action provides for proper person to seek a court redress from a company where injustice is committed against. Such circumstances are provided for in the oppression remedy act whereby a creditor or employees sue as proper person. This is allowed when it is shown that the directors of a company engage in illegal activities through the company or where there is contravention of rights to a person by the company (Ellyn 17). Preference of Derivative Action  According to Griggs in the article Statutory Derivative Action, The corporations Act 2001, explains that Derivative action provides shareholders with an avenue to seek redress against company directors based on contravention of companies act and existing memorandum between corporation and shareholders. It allows the plaintiff to seek legal intervention on any company transactions. The underlying conditions of this act require that the plaintiff be able to prove to the court that the management has no freewill to institute any proceedings on itself. The issue under arbitration must be shown to be in the best interest of the company at large and done out of good faith by the plaintiff. The characteristic feature of derivative action as discussed in Griggs work, Statutory Derivative Action, is that it can cause a third party that has no vested interests to cause legal intercept on behalf of a second party that is disadvantaged by lack of will of corporation to act in favour of the second party. Therefore the derivative action provides counter measures of regulating the company’s managerial decisions that are deemed excessive. In the same article by Griggs, derivative action acts provides circumstances under which a suit related to it can be instigated. Unlike in oppressive remedy, the conditions which allow a suit to occur are limited in order to protect the independence of corporation to carry out their mandate and prevent unnecessary litigations. The derivative action is especially relevant when the subjects of the suit are board of directors that are found to be in contravention of a company policy. It is obvious the directors cannot have free will to institute litigation upon themselves. In total, derivative action litigation require the plaintiff to prove that management actions constitutes a fraud to the company or the minority, or there is intrusion on shareholder rights, or an action done by management is deemed as ultra vires in the company acts. Victory Rates of Oppressive Remedy In execution of oppressive remedy arbitration, the court only purpose is to analyze evidence and determine if actually any oppression took place to the minority party, while disregarding purported or otherwise good faith of the management in implementing decisions, which can be used as mitigation by the accused. This leeway forms the hallmark in oppressive remedy cases arbitration and largely determines the victory of a law suit (Ellyn 15). The litigations brought on oppressive remedy require the claimant to provide the court with just sufficient indication that there was cause for oppression to occur. This provides the plaintiff with an edge of favourable ruling over the defender since the burden of proof required is minimal. This characteristic should be a consideration when instituting litigation which requires high burden of proof for achieving conviction (Ellyn 22). Finally suit brought about in oppressive remedy must conform to the general requirements of this act as provided in this law.

?An Interpretation of Paul Laurence Dunbar?s Poem Sympathy and We Wear

  Ã‚  Ã‚  Ã‚  Ã‚  Throughout African American history, African Americans have used poems as a way of describing the African American condition in America. One poet who was widely known for using poetry to describe the condition of African Americans in America was Paul Laurence Dunbar. Paul Laurence Dunbar was one of the most prolific poets of his time. Paul Laurence Dunbar used vivid, descriptive and symbolic language to portray images in his poetry of the senseless prejudices and racism that African Americans faced in America. Throughout this essay I will discuss, describe and interpret Sympathy and We Wear the Mask. Both Sympathy and We Wear the Mask were written by Paul Laurence Dunbar.   Ã‚  Ã‚  Ã‚  Ã‚  To begin with, the poem Sympathy suggests to the reader a comparison between the lifestyle of the caged bird, and the African American. Paul Laurence Dunbar’s center of attention of Sympathy is how the African American identifies and relates to the frustrations and pain that a caged bird experiences. Dunbar begins the poem by stating â€Å"I know what the caged bird feels, alas!†(African American Literature page 922). This shows the comparison of a caged bird to an African American. Dunbar wrote this poem with vivid, descriptive, and symbolic language throughout the entire poem. Dunbar uses this vivid, descriptive and symbolic language to stress his point that some one tied up in bondage and chains is not privileged enough to enjoy the simple but unique parts of life. In the first stanza of Sympathy Dunbar wrote: I know what the caged bird feels, alas! When the sun is bright on the upland slopes; When the wind stirs soft through the springing grass,- And the river flows like a stream of glass: When the first bird sings and the first bud opes, And the faint perfume from its chalice steals- I know what the caged bird feels! The first stanza is representative of the symbolic speech in which Paul Laurence Dunbar uses to describe the condition of African Americans. The first stanza also states how the conditions of African Americans are similar to that of a cage bird. The symbolism in the first stanza is that of nature. Dunbar speaks of the chalice, river, and grass which are parts of nature that a person who is not oppressed, may enjoy and take for granted. Unlike the non oppressed people; chalice, river, and grass are parts of nature in w... ...he second stanza is the mask in which hides African Americans feelings and thoughts from the public. The second stanza ask a question of â€Å"Why should the world be overwise† which is interpreted as Dunbar asking why should the majority of people have such a negative affect on people and how the minorities respond to societal norms. These societal norms that are spoken of a rules or unspoken laws that are set up to benefit and serve the majority or those that are in charge. In this case   Ã‚  Ã‚  Ã‚  Ã‚  Similar to Sympathy the third stanza of We Wear the Mask is also like a prayer. The third stanza is a plea for release of control over African Americans. The third stanza is also a plea from African Americans for the release of hiding feelings and emotions.   Ã‚  Ã‚  Ã‚  Ã‚  In conclusion, Paul Laurence Dunbar was of the most prolific poets to ever write poetry. Paul Laurence Dunbar used vivid, descriptive and symbolic language to portray images in his poetry of the senseless prejudices and racism that African Americans faced in America. This use of vivid, descriptive and symbolic language was very apparent in both of his poems Sympathy and We Wear the Mask.

Education in Kazakhstan Essay

1.Before going to school, children attend kindergartens until they are six or seven. 2.Compulsory education begins in our country at the age of seven, when children go to primary school. 3.The secondary stage begins from the 5th form when children start studying a lot of new subjects, such as Literature, History, Natural Sci ¬ences and others. 4.Examinations are taken at the end of the 9-th and the 11-th forms. 5.Some children may leave school after the 9-th form and continue their education at vocational or technical schools or colleges. 6.Besides secondary schools there are other types of schools in Ka ¬zakhstan. There are specialized secondary schools with intensive study of a certain subject, for example Foreign Languages, Literature, Physics and others. 7.There are also specialized art, music, ballet and sport schools for gifted children and special schools for handicapped children. 8.Secondary education in our country is free of charge. Among secondary schools there are gymnasiums, colleges and lyceums most of them are private. 9.There are institutes, schools of higher education, universities and academies among higher educational institutions. 10.In 1992 Kazakhstan system of higher education adopted the western model – a 4 years course of studies with getting the Bachelor degree after graduation and a 2 years course of study with getting the Master’s degree after graduation. 11.In order to enter a higher educational institution young people have to take an entrance examination. Only those who successfully pass entrance testing are admitted free of charge. In other cases education is given on the commercial basis.

Charles Darwin s Theory Of Evolution And Natural Selection

Charles Robert Darwin was an English naturalist, geologist, and biologist. Charles Darwin’s theory of evolution is based on a mechanism that he titled natural selection. Natural selection is, as defined by Darwin in his book On the Origin of Species, the method of being naturally selected for a better chance of survival in an environment. Evolution itself is the process by which organisms develop and adapt over generations. â€Å"†¦ it follows that any being, if it vary however slightly in any manner profitable to itself, under the complex and sometimes varying conditions of life, will have a better chance of surviving, and thus, be naturally selected.† – (Darwin, 1859) Darwin observed many pieces of evidence that point to evolution and†¦show more content†¦The finches had evolved their beaks specifically to eat various kinds of foods on the islands they were on. Darwin wrote that when â€Å"an immigrant first settled on one of the islands, †¦ it would undoubtedly be exposed to different conditions in the different islands [where] it would have to compete with a different set of organisms. â€Å"†¦Then, natural selection would probably favour different varieties in the different islands† (Darwin, 1859). The finches had developed different shaped beaks for their different food sources. The birds that were most suited for survival in their environment had more opportunities to breed and, as a result, their characteristics and traits were passed on to other generations. These birds that had further opportunities to breed were naturally selected, because they were better suited to survive, and thus, passed on the traits that h elped their survival. Birds that did not have beaks appropriate for the food sources on the island had no chance to breed or pass on their traits, so the trait for that beak type was not as prevalent. This natural selection over time created a population of birds with beaks most fit for food sources on the islands.Biogeography investigates the distribution and spread of organisms across the earth, and provides compelling evidence of evolution. Darwin observed many different species while has was on the HMS Beagle. He noted that,Show MoreRelatedCharles Darwin s Theory Of Evolution And Natural Selection2114 Words   |  9 PagesCharles Darwin Charles Darwin was born in Shrewsbury, England, on February 12, 1809. He died on April 19, 1882 in Kent, England (Biography.com Editors). Charles Darwin brought many revolutionary visions to the world of science, including evolution. Charles Darwin was an English naturalist and geologist. He is best known for his theory of evolution, and natural selection. 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The rich variety of animal and Charles Darwin s Theory Of Evolution And Natural Selection Charles Darwin Charles Darwin was born in Shrewsbury, England, on February 12, 1809. He died on April 19, 1882 in Kent, England (Biography.com Editors). Charles Darwin brought many revolutionary visions to the world of science, including evolution. Charles Darwin was an English naturalist and geologist. He is best known for his theory of evolution, and natural selection. Darwin learned most of his information on the Voyage of the Beagle, and from this trip he wrote a book, Of the Origin of Species. From this book, came the saying â€Å"Survival of the Fittest.† Charles Darwin accomplished many things with his life. He still has many fans and followers because of his discoveries. Darwin was the second youngest of six children. He came from a long line of family studying science (Biography.com Editors.). Darwin’s parents were both doctors, and his grandfather was a botanist. â€Å"Botany is the study of plants, including their physiology, structure, genetics, ecology, distribution, cla ssification, and economic importance,† (dictionary.com). Charles’ mother died when he was only eight years old, so he was raised by his three sisters. Darwin’s family was wealthy (Biography.com Editors.). Darwin attended Edinburgh University along with his brother, Erasmus. His father, Robert Darwin, wanted both his children to become physicians. Darwin did not enjoy the study of medicine. He became queasy at the sight of blood (Wyhe). Darwin left Edinburgh, and then attended Christ’s College inShow MoreRelatedCharles Darwin s Theory Of Evolution And Natural Selection1535 Words   |  7 PagesCharles Robert Darwin was an English naturalist, geologist, and biologist. Charles Darwin’s theory of evolution is based on a mechanism that he titled natural selection. Natural selection is, as defined by Darwin in his book On the Origin of Species, the method of being naturally selected for a better chance of survival in an environment. Evolution itself is the process by which organisms develop and adapt over generations. â€Å"†¦ it follows that any being, if it vary however slightly in any mannerRead MoreEvolution Is The Biological Ideal For The History Of Life On Earth814 Words   |  4 PagesHonors Biology Kohli December 14th, 2014 Evolution Evolution is the biological ideal for the history of life on Earth. (Evolution fact and theory). It is the process by which an organism becomes more refined over time and in response to its environment. Evolution is about how we evolved; how Neanderthals and cave men evolved into Homo sapiens much like what we are today. 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He had a theory that all species have inherited traits over time from common ancestors, and in a partnership with Alfred Russel Wallace introduced his scientific theory that this pattern of evolution resulted from an action that he called natural selection, in which the struggle for existence has a similar effect to the natural selection involved in selectiveRead MoreDarwin s Theory Of Evolution1115 Words   |  5 Pages There are many theories as to what scientist believe is the forth coming of evolution or what they deem to be the reasoning behind its development. However, Charles Darwin would change the theories of evolution and would go down in history as one of the greatest influential figures in human existence. Although some scientist disagree with Darwin’s Theory, Darwin is the only person who was able to provide sufficient evidence to prove his theory of evolution. The one question that remains, Can GodRead MoreEssay On Charles Darwin1339 Words   |  6 PagesCharles Darwin History Charles Darwin was born on the 12th of February 1809 – 19th April 1882. He was born in a merchant town of Shrewsbury, England. He was the second youngest of his six siblings. Darwin’s mother, Susanna, died when he was only 8 years old. He attended the University of Edinburgh Medical School (at the time the best medical school in the UK) with his brother Erasmus in October 1825. Darwin found lectures dull and surgery stressful, so he neglected his studies. Charles Darwin diedRead MoreDr. Charles. Darwin s Theory Of Evolution1714 Words   |  7 PagesDr. Charles Robert Darwin was an English naturalist and geologist. He is best known for his contributions to the theory of evolution. He stated that all species have descended over time from common ancestors. With his joint publication with Alfred Russell Wallace he introduced the process called natural selection. Darwin published his theory of evolution in 1859 with a book, On the Origin of Species; many people rejected his idea of natural selection and his theory of evolution. By the 1870’s theRead MoreEvolution Of Evolution And Natural Selection967 Words   |  4 PagesEvolution and Revolution What do a sponge and bird have in common? Believe it or not, they share a common origin. In the film, Darwin s Tree of Life, the narrator, David Attenborough, presents the audience with the theory of evolution as documented by Charles Darwin in the 1800 s. The video is based on Darwin s perspective of evolution and natural selection. Darwin s findings were revolutionary and caused out-rage among the religious who believed in the story of creation beginning with AdamRead MoreWhat Is The Evidence For Evolution?1363 Words   |  6 PagesWhat is the evidence for evolution? I will start my essay by briefly describing, what is evolution theory? And also going into more depth of evolution theory such as; who was the first person ratifying theory and so on. The Evolution theory is that the process by which different kinds of living organism are believed to have developed from earlier forms during the history of the earth such as genetic, migration and natural selection today’s descendants show an amazing amount of similarities and diversityRead MoreCharles Darwin : Father Of Evolution1582 Words   |  7 PagesCharles Darwin:Father of Evolution Charles Robert Darwin was born February 12, 1809. He is best known for his theory on evolution and and for his phenomenal book On the Origin of Species, which laid the foundation for evolutionary studies and is considered a landmark work in human history. Charles Darwin was a med school dropout but his real passion was for the great outdoors. Charles Darwin served as an unpaid naturalist on a science expedition on board HMS Beagle. The rich variety of animal and