A company owned by two brothers was ran for 30 years as it does not exist, with its only asset being the right to register in the future as an owner of a store. For years the company has no income tax file and a family partnership reported revenues from leasing out of the store. In the context of a family dispute, one of the brothers sought to file a derivative claim on behalf of the company against the other.
The Court rejected the motion and held that the derivative claim process constitutes an exception to the rule that the authority to act in the company is in the hands of its organs and therefore can be done only when the organs did not do so and the claim is in favor of the company and in good faith. This is a company without any activity for years and thus the management of the claim will not be in favor of the company but for the personal benefit of the applicant, so he must file a personal claim and not a claim on behalf of the company.