Where the directors fail to have a company commence action in order to enforce its corporate rights as a result of a wrong done to the company, a complainant may seek leave of the Court either to bring an action in the name of the company or any of its subsidiaries or to intervene in an existing action to which the company or its subsidiaries are a party. Examples of the type of wrongs alleged to have been done to a company for which a derivative action has been considered appropriate include: an allegation by minority shareholders that the directors had sold company assets at a price far below their true value; and an allegation by minority shareholders that certain directors were in breach of their fiduciary duty to the company. The Court will grant leave to commence a derivative action if it is satisfied that:
The persons included in the category of complainants upon whom a right to commence a derivative action may be conferred include shareholders and creditors (past and present), directors and officers (past and present), the Registrar and any other person the Court considers to be proper.
The Court is given a broad discretion to make any order it thinks fit in a derivative action, including orders: