What is the test for a shareholder to bring a derivative action against a company?

Alberta, Canada


The following excerpt is from Canada Deposit Insurance Corporation v. Canadian Commercial Bank, 1989 ABCA 150 (CanLII):

I turn now to the submission based on Wallersteiner v. Moir (No. 2) (supra). In that case a minority shareholder in a public company discovered that the manager and person in control of the company had been guilty of misconduct in the management of its affairs. After efforts to obtain a public inquiry and motions at shareholders meetings brought no results, he became involved in litigation with the manager. The action was in his own name, but was for the benefit of the company and would not profit him personally, except by increasing the value of his shares. After some ten years of litigation, and his partial success, the court ordered the company to fund the continuation of his litigation. At pages 857-858 Lord Denning described the "derivative action" in which a shareholder, nominally suing in his own name, actually sues on behalf of the company. He quoted from Gower: Modern Company Law (3rd ed. 1969) at page 587 where it is said: "Where such an action is allowed the member is not really suing on his own behalf nor on behalf of the members generally, but on behalf of the company itself. Although… he will have to frame his action as a representative one on behalf of himself and all the members other than the wrongdoers, this gives a misleading impression of what really occurs. The plaintiff shareholder is not acting as a representative of the other shareholders but as a representative of the company… in the United States… this type of action has been given the distinctive name of a 'derivative action', recognising that its true nature is that the individual member sues on behalf of the company to enforce rights derived from it."

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