Executive Summary: Key Legal and Evidentiary Issues

• The Alberta Court of King’s Bench held that it has both subject-matter and territorial jurisdiction over Nova’s action, and dismissed the defendants’ application to strike under rule 3.68(2)(a).

• The Court found that Nova’s amended statement of claim does not engage or seek a remedy under s. 301(2) of the British Columbia Business Corporations Act, which is a statutory remedy available only to shareholders, directors, or creditors.

• Justice Marion characterized the essence of Nova’s claim as a non-statutory attempt by the corporation itself to unwind the 2020 and 2022 Agreements and obtain related common law and equitable relief for alleged wrongdoing against Nova.

• The Court rejected the defendants’ argument that only the British Columbia Supreme Court has subject-matter jurisdiction over breach of fiduciary duty claims involving directors of a BCBCA corporation, finding no express or implied exclusivity in the BCBCA.

• Justice Marion distinguished prior authorities about statutory oppression remedies and other statutory corporate remedies, holding that Nova is not seeking such statutory relief or orders directly regulating its internal corporate affairs.

• Nova, as the successful party on the application, is presumptively entitled to its costs, subject to further determination if the parties cannot agree within one month.

Facts of the case

Nova’s corporate structure and business

Nova Oculus Canada Manufacturing ULC (Nova) is a British Columbia corporation incorporated in 2017. Its sole shareholder has at all times been Nova Oculus Holdings Co. Inc., which in turn is wholly owned by Nova Oculus Partners LLC (Nova US), formerly known as The Eye Machine LLC (TEM). Nova is described in prior reasons (incorporated by reference in this judgment) as a medical technology company that had developed a biomedical device (the Device) and related technology to treat age-related macular degeneration (AMD), obtained patents and patent applications in selected countries, and begun required clinical trial testing for commercialization.

Defendants and related entities

Justin Sather (Sather) is an individual residing in Calgary. He was an officer and director of Nova from May 2017 to June 2019, and is described as an officer and the sole director and a direct or indirect shareholder of MacuMira Medical Devices Inc. (MacuMira).

Walter O’Rourke (O’Rourke) is an individual residing in Ontario. He was an officer and director of Nova from 2017 until December 2022. Karmatar Consulting Inc. (Karmatar) is an Ontario corporation of which O’Rourke is the sole director and shareholder. Karmatar provided consulting services to Nova under a Services Agreement.

Background agreements and the Device

The action concerns the Device and related technology for treating AMD. Prior reasons of the Court (Justice Neufeld) summarized that in 2015, Eye Machine Canada (Licencing) Corp (EMC), a subsidiary of MacuMira, entered into a licence agreement with TEM (the precursor of Nova US). Under that agreement, EMC obtained rights to lease, market, promote, and distribute the Device in Canada, with EMC entitled to terminate and recover its USD $1 million option payment if Health Canada did not grant regulatory approval by October 10, 2016. In 2019, MacuMira initiated clinical trials for the Device.

On October 27, 2020, Nova and MacuMira entered into an agreement titled Assignment of Inventions and Related Patent Rights (the 2020 Agreement). The amended statement of claim (ASOC) asserts that the 2020 Agreement was dated October 2020 but executed later. The 2020 Agreement was negotiated and signed by O’Rourke on behalf of Nova, when he was president, CFO, and sole director and officer of Nova, and chief operating officer of Nova US. Sather acted for MacuMira. MacuMira was represented by the law firm Maverick Law and prepared the 2020 Agreement; Nova was not represented by counsel.

Under the 2020 Agreement, MacuMira received an assignment of title and transfer of worldwide rights to the Device in return for specified benefits, including royalties and other payments. The effect, as summarized in the earlier decision, was that MacuMira moved from being a licensee of the Device to its owner, with MacuMira aiming to obtain necessary Canadian regulatory approvals to commercialize the Device.

On September 1, 2022, Nova and MacuMira executed an amended and restated licensing agreement (the 2022 Agreement). The 2022 Agreement increased the consideration payable to Nova as and when commercialization was achieved. A patent agent was retained to do the legal work required to give effect to the assignments.

The ASOC also refers to later conduct, including the entering into, effect of, and potential rescission of a 2023 Cooperation Agreement executed by O’Rourke and Karmatar. Nova’s pleaded claims include efforts to set aside the 2020 and 2022 Agreements (collectively, the Transactions), and to obtain the return of property, protection of confidential information, and damages.

Procedural history

The record for the jurisdictional application is limited to an affidavit of a legal assistant attaching the pleadings. The key procedural steps identified in the reasons are:

• On February 16, 2023, Nova commenced the action.
• On April 24, 2023, O’Rourke and Karmatar filed their statement of defence.
• On May 19, 2023, Sather and MacuMira filed an application for summary dismissal, which has not yet been heard and appears to have been directed to proceed by way of a trial of an issue (the Trial) by Justice Dario.
• On May 31, 2023, Sather and MacuMira filed their statement of defence.
• On July 2, 2025, with the defendants’ consent, Nova filed the ASOC.
• On August 7, 2025, the defendants filed the present application to strike (the Application).
• On October 17, 2025, Justice Dario directed that the Trial be scheduled and that this Application proceed as a separate special application.
• On October 31, 2025, the Application was approved to be heard on the commercial list.

Justice Marion heard the Application on December 17, 2025 and reserved decision, receiving supplemental written submissions on December 19, 2025.

Issue before the Court

The stated issue is whether the ASOC, or parts of it, should be struck under Alberta Rule of Court 3.68 for lack of subject-matter jurisdiction, specifically under rule 3.68(2)(a), which permits striking where “the Court has no jurisdiction.”

Legal framework for jurisdiction and striking

The reasons distinguish between:

• Territorial jurisdiction (jurisdiction simpliciter), which concerns the connection between the dispute and the court’s territorial authority and may be based on presence, consent/attornment, or a real and substantial connection; and
• Subject-matter jurisdiction, which concerns the court’s legal authority to adjudicate the subject-matter of the dispute.

The judgment reiterates that attornment or consent can establish territorial jurisdiction but cannot create subject-matter jurisdiction, and that a superior court cannot use its inherent jurisdiction to override clear statutory limits. It also notes that provincial superior courts generally have inherent subject-matter jurisdiction over all matters except where a different forum has been specified, and that any ouster of this “implied plenary jurisdiction” requires precise express wording or necessarily implicit “irresistible clearness.”

Rule 3.68(2)(a) can be used to strike claims where another forum has exclusive jurisdiction over the subject-matter of the action. Examples given include claims involving enforcement of foreign patents, trademark matters within the Federal Court’s exclusive jurisdiction, certain human rights and tax matters, disputes subject to collective agreement arbitration, matters covered by binding arbitration agreements, and certain claims barred by legislation.

To determine whether the Court has subject-matter jurisdiction, Justice Marion emphasizes that the “essential nature or character” of the claim must be assessed on a realistic appreciation of the practical result sought, considering the surrounding facts rather than only the way the issues are framed or the specific legal labels used.

Positions of the parties

Defendants’ position

The defendants argue that Nova’s main claim (the “Set Aside Claim”) in the ASOC is to set aside the 2020 and 2022 Agreements. They say the essential nature of this Set Aside Claim is a statutory challenge under s. 301(2) of the BCBCA, and that only the British Columbia Supreme Court has jurisdiction to grant the remedy created by that provision.

They submit that several authorities hold that only the court of the jurisdiction of incorporation may grant specific statutory remedies or make orders regulating or directing the internal affairs of a corporation.

They further contend that Nova’s other pleaded causes of action—breach of fiduciary duty, knowing assistance, knowing receipt, breach of confidence, breach of contract, inducing breach of contract, conspiracy, and conversion (the “Additional Claims”)—cannot be used to confer jurisdiction on the Alberta court where s. 301(2) BCBCA governs. As the Application progressed, they also submit that only the British Columbia Supreme Court has subject-matter jurisdiction over breach of fiduciary duty claims involving directors of a BCBCA corporation.

Although their filed Application sought to strike the entire ASOC, in argument they focus on striking the portions of the ASOC relating to the Set Aside Claim and the Additional Claims linked to it. They say it would be nonsensical to have the Additional Claims proceed separately from the Set Aside Claim. They suggest that only Nova’s “Alternative Claims” (claims pleaded in the event the Transactions are valid and enforceable and not set aside) should remain.

Nova’s position

Nova argues that the only relief before the Court is the striking of the entire ASOC, as this was how the Application was framed when the defendants sought to have it placed on the commercial list. Nova notes that the defendants represented that the Application had the potential to substantially dispose of the action in its entirety and submits that a partial striking application should not now be permitted. Nova says the defendants’ admission that only some claims should be struck is fatal to the Application.

Substantively, Nova submits that the essential nature of its main claim is to unwind the Transactions while preserving its rights to patents and confidential information. It says it does not and cannot seek a remedy under s. 301(2) of the BCBCA, that its claims arise independently of that statute under longstanding common law and equitable principles, and that the Alberta Court of King’s Bench has inherent jurisdiction to grant rescission of the Transactions on a non-statutory basis. Nova also asserts that this Court has subject-matter jurisdiction over all of its claims, including those for breach of fiduciary duty.

Court’s treatment of the scope of the Application

Justice Marion does not accept Nova’s procedural argument that the Application should be dismissed solely because the defendants moved from seeking to strike the entire ASOC to seeking to strike only parts of it. The Court relies on its inherent jurisdiction to control its own process and notes that Nova had sufficient notice of the refined position through the defendants’ filed brief and responded fully in its own briefs and oral submissions.

The judge concludes that there is no prejudice to Nova in considering the defendants’ refined position and that dismissing the Application on this narrow ground would be wasteful, as the defendants could simply reapply on the refined basis.

Essential nature of the claim and s. 301(2) BCBCA

Justice Marion finds that the essential nature of Nova’s claim is not to seek a remedy under s. 301(2) of the BCBCA. The reasons give several grounds for this conclusion.

First, on a plain reading, s. 301(2) BCBCA is described as a specific statutory remedy available to identified persons—shareholders, directors, or creditors—allowing them to obtain a statutory remedy when the corporation’s sale of all or substantially all of its business outside the ordinary course may defeat or adversely affect their interests as stakeholders. The judgment states that s. 301(2) “does not apply to a claim made by the corporation for alleged wrongdoing done to the corporation” and that “the corporation cannot use s. 301(2).”

By contrast, the BCBCA provisions cited in the reasons confirm that a BCBCA corporation has capacity to commence litigation inside or outside British Columbia and to conduct its affairs and accept certain powers and rights in other jurisdictions.

The ASOC is brought by Nova itself, not by its shareholders, directors, or creditors. The Court characterizes the essence of Nova’s claim as an attempt by Nova to unwind the Transactions as a wrong to Nova, rather than a claim by stakeholders to unwind them as a wrong to those stakeholders.

Second, Nova does not plead or seek a remedy under s. 301(2) at all. Justice Marion treats Nova’s decision not to invoke the statutory remedy as an example of the “genuine strategic choice” referred to by the Supreme Court of Canada, and rejects the defendants’ effort to “shoehorn” or “artificially mischaracterize” the ASOC as a s. 301(2) claim for the purpose of creating a jurisdictional bar. The reasons restate that the relevant question is the particular claim the claimant has chosen to bring, not a similar claim the respondent says ought to have been brought.

Third, the Court accepts Nova’s position that it seeks common law and equitable relief against those it alleges wronged it, including its former officer and director and those who allegedly benefitted, and that the essence of the claim is non-statutory rescission of the Transactions, with additional relief directed at preserving Nova’s business, confidential information, and interests in the Device. The reasons state that this Court has jurisdiction to grant contractual rescission based on the Judicature Act, inherent jurisdiction, and equitable principles, and that equitable rescission can be a flexible remedy available in many circumstances, including where a corporation enters into contracts on the basis of fraud or breach of fiduciary duty.

Fourth, the Court notes that the alleged wrongdoing and requested relief go beyond just the Transactions and the absence of a special resolution, which the defendants emphasized. The ASOC’s factual context includes conduct that predates the 2020 Agreement, continues between the 2020 and 2022 Agreements, and includes later conduct such as the 2023 Cooperation Agreement. Nova seeks not only to set aside the Transactions but also the return of property, protection of confidential information, and damages.

Fifth, on statutory interpretation, Justice Marion concludes that s. 301(2) BCBCA does not purport to oust the jurisdiction of other provincial superior courts to grant relief to a BCBCA corporation where all or substantially all of its assets are involved in alleged wrongdoing against the corporation. The reasons reject the defendants’ interpretation as leading to an “absurd” outcome in which other superior courts could have subject-matter jurisdiction when less than all or substantially all assets are transferred, but not when more extensive wrongdoing occurs, and describe this as “impractical and artificial.”

Breach of fiduciary duty and BCBCA “exclusive” jurisdiction

Justice Marion considers and rejects the defendants’ additional argument that the British Columbia Supreme Court has exclusive subject-matter jurisdiction over breach of fiduciary duty claims involving directors of a BCBCA corporation.

The reasons state that there is no express language in the BCBCA creating such exclusive jurisdiction and that, if the British Columbia legislature had intended to oust the inherent jurisdiction of other provincial superior courts in this respect, it would have used express wording.

The Court also finds that exclusive jurisdiction cannot reasonably be implied. It reviews authorities in which Division 3 of Part 5 of the BCBCA has been described as a “complete code” for director conflicts of interest and explains that those decisions treat the statutory provisions as codifying common law principles for identifying when a director is accountable for failing to disclose a material interest in a contract or transaction. In Justice Marion’s view, this goes to the applicable law on liability rather than forum exclusivity.

The reasons further note statutory provisions, quoted in full, stating that certain director liability provisions are “in addition to, and not in derogation of” other enactments or rules of law or equity relating to directors’ duties and liabilities. The Court cites a British Columbia Court of Appeal decision confirming that breach of fiduciary duty is imposed both under the BCBCA and common law, and states that this is inconsistent with the BCBCA being a complete code ousting all common law breach of fiduciary duty claims.

Taking into account factors used to assess whether exclusive jurisdiction should be implied—such as the process for dispute resolution, the nature of the dispute, and available redress—the Court concludes that the detailed statutory regime in the BCBCA is not sufficient to infer that the legislature intended to create exclusive statutory jurisdiction in the British Columbia Supreme Court for all claims against directors for breach of fiduciary duty. The reasons state that the BCBCA is “far from a complete code” on the process, disputes, and redress for such claims and that it does not oust the jurisdiction of other provincial superior courts.

Distinguishing prior authorities and comity considerations

Justice Marion agrees with the defendants that an Alberta court does not have jurisdiction to grant specific statutory remedies conferred by another province’s business corporations legislation, such as statutory oppression remedies or orders authorizing derivative actions under that statute. The reasons review several decisions where courts have declined to exercise or accept jurisdiction over such statutory remedies for corporations incorporated elsewhere.

The Court also notes that, as a matter of judicial comity, courts of one province generally do not issue orders that purport to direct or regulate the internal affairs or governance of a corporation incorporated in another jurisdiction. However, the reasons state that the need to apply foreign law and considerations of comity do not, by themselves, mean that this Court lacks subject-matter jurisdiction.

The Court distinguishes the cases relied upon by the defendants, describing, among others:

• A claim in Alberta made on behalf of a Delaware corporation in the nature of a derivative action without appropriate Delaware approval;
• Cases involving statutory oppression claims;
• A case involving an Alberta corporation where the debenture agreements contained an attornment clause to Alberta’s jurisdiction;
• A case involving requisitions for shareholder meetings and access to shareholder lists, viewed as directly regulating internal corporate affairs; and
• A case involving causes of action under extra-provincial privacy legislation.

By contrast, Justice Marion characterizes Nova’s claims as not seeking a statutory remedy under the BCBCA and not seeking to direct or regulate Nova’s internal affairs. Rather, the ASOC is described as pursuing alleged wrongdoers—its former officer and director (O’Rourke), Karmatar, MacuMira, and Sather—for allegedly transferring Nova’s main asset (the Device) and related confidential information to MacuMira and then using the Device and confidential information without Nova’s consent.

The Court concludes that the essence of the ASOC is not within the exclusive jurisdiction of the British Columbia Supreme Court and that the Alberta Court of King’s Bench has inherent subject-matter jurisdiction over the claims.

Territorial jurisdiction and adjudicative jurisdiction

After finding subject-matter jurisdiction, the Court addresses territorial jurisdiction. Justice Marion states that the Alberta Court of King’s Bench also has territorial jurisdiction (jurisdiction simpliciter) over the claims, including because, at minimum, the defendants have attorned to this Court’s jurisdiction and have actively litigated in Alberta since 2023.

The reasons note that the defendants did not raise lack of territorial jurisdiction in their statements of defence, in the Application, or before the Court, and that there is no application to decline to exercise jurisdiction. Justice Marion therefore does not decide whether the Court would have assumed jurisdiction had territorial jurisdiction or forum conveniens been raised at the outset, but notes that the Court may have declined. Those issues are expressly stated to be not before the Court.

On this basis, Justice Marion finds that the Court has “adjudicative jurisdiction” over the ASOC.

Outcome and costs

The reasons conclude that the defendants’ Application under rule 3.68 is dismissed.

As the successful party on the Application, Nova is described as presumptively or prima facie entitled to its costs under rule 10.29 of the Alberta Rules of Court and applicable appellate authority. The Court directs that if the parties cannot reach agreement on costs within one month of the Reasons, they may contact Justice Marion’s office, and a process for determining costs will be set. No specific costs amount is fixed in the decision, and the decision does not state an exact monetary figure for any award.