Executive Summary: Key Legal and Evidentiary Issues

• Leave for a derivative action under s. 446 BCA was refused because the plaintiff, Pompura, failed to prove good faith and that the proposed claim was in the Group’s best interests.
• The Court found the proposed derivative action against Tiramani to be both frivolous and vexatious, as it attempted to re-litigate a shareholder dispute already addressed in an oppression and liquidation file.
• Evidence showed there was no exclusivity in the business relationship: both partners were always free to pursue parallel and even competing projects through other entities.
• Testimony from key clients established that the three “competing projects” (Anderson, King Street, Loumii) stemmed from longstanding personal and business relationships with Tiramani, not from any ongoing corporate client base of the Group.
• The five-year delay between Pompura learning of the alleged diverted projects and bringing the derivative application supported an inference of improper motives and confirmed that any such claim was prescribed.
• Procedurally, the Court granted an oral application to dismiss at the close of the plaintiff’s evidence and ordered costs against the plaintiffs, underscoring concerns about abusive, duplicative litigation between the shareholders.

Facts of the case

This decision of the Superior Court of Quebec (Commercial Division) arises from a failed real estate and construction venture conducted through two corporations, Société immobilière 1589 Inc. and Construction Za-Ne Inc. (together, “the Group”). The ultimate shareholders behind the Group were two experienced businessmen: Vittorio Tiramani, active in real estate investment and development through “Tyron” entities, and Jan Pompura, active in the construction industry and later associated with “Groupe Milan.” Their partnership produced several projects but eventually deteriorated into mutual accusations and multi-file litigation. The main battleground between them is an oppression and liquidation proceeding (the “Oppression and Liquidation File (#242)”), in which Tiramani has brought oppression claims and Pompura has sought liquidation of the Group. In that earlier file, Justice Corriveau had already authorized a derivative action allowing Tiramani, on behalf of the Group, to pursue a claim exceeding $3 million against Pompura for alleged breaches of fiduciary duty. Against that backdrop, Pompura and his company 9243-0677 Quebec Inc. now sought leave in this case to institute a new derivative action under s. 445 BCA, this time in the Group’s name against Tiramani and his company Gestion Julstef Inc. The core allegation was that Tiramani had diverted three significant real estate projects that, according to Pompura, should have been Group business.

Derivative action framework and statutory requirements

The Court emphasized that it was not deciding the ultimate merits of the proposed claim, but only whether statutory pre-conditions for a derivative action under s. 446 BCA had been met. Certain criteria were undisputed: Pompura qualified as an “applicant,” had given prior notice to directors, and the corporation had not itself initiated the claim. What remained in issue were two cumulative requirements: first, whether the applicant was acting in good faith; and second, whether the proposed action, if authorized, would appear to be in the best interests of the corporation. The Court underscored that, unlike the general presumption in article 2805 CCQ, good faith is not presumed in derivative actions. The applicant bears the burden of proving good faith and showing that the contemplated action is neither frivolous nor vexatious and has a reasonable prospect of success. The prior authorization filter exists precisely to screen out “strike suits,” unfounded claims, and a multiplicity of overlapping proceedings.

Evidence on competing projects and alleged diversion

Pompura’s proposed derivative claim turned on three so-called competing projects said to have been wrongfully diverted by Tiramani to Tyron entities: the Anderson Project (Terrebonne), the King Street Project (Montreal), and the Loumii Project (Laval). He argued that the clients behind those projects were longstanding clients of the Group and that, by working through Tyron, Tiramani had misappropriated corporate opportunities. The Court found that this narrative was inconsistent with the evidence. First, both parties had expressly acknowledged—before Justice Corriveau and in their written pleadings—that their partnership was non-exclusive. From the outset, each knew the other maintained independent ventures in the same sector, sometimes even in competition with the Group. Pompura himself pleaded that it was “understood and tacitly agreed” that neither would refrain from involvement in other construction and development ventures. Second, client testimony undermined the idea that these were Group clients rather than Tiramani’s personal network. For the Anderson Project, evidence from Crest Realties’ principal, Aaron Drazin, and operations director Florian Paul established a longstanding relationship with Tiramani predating the Group, dissatisfaction with the one project the Group had done for them, and negligible follow-on work through the Group. The Anderson contract was attributed to the personal bond with Tiramani, not to any ongoing relationship with the Group. For the King Street Project, the evidence showed that lawyer-developer Dario Pietrantonio had interacted with the Group only on a 2012 project that never materialized due to expropriation, and he later approached Tiramani alone in 2018 for King Street. Pietrantonio insisted that the project proceed without any involvement from Pompura, citing both personality conflicts and a desire for higher-end construction quality associated in his mind with Tyron. For the Loumii Project, testimony from Joseph Marsili of Jalina Capital (a Saputo family holding company) showed that his dealings were with Tiramani and Tyron in various projects, and that the Group’s role on an earlier 2012 project had been a one-off engagement. Marsili had never met or spoken with Pompura, reinforcing that the enduring relationship was personal to Tiramani. Collectively, this evidence led the Court to conclude that the three projects were tied to Tiramani’s own longstanding relationships, not to any pool of corporate goodwill belonging to the Group.

Findings on good faith and best interests of the corporation

The Court held that the non-exclusive nature of the business arrangement fundamentally undermined the premise that pursuing side projects was automatically a diversion of corporate opportunities. Both men had always been free, by mutual understanding, to pursue parallel work through other entities; indeed, Pompura himself later incorporated Groupe Milan to pursue his own post-Group ventures. Against that context, the Court considered the derivative action’s broader procedural role. There were already multiple pending or related files between these two shareholders, including the oppression and liquidation case in which similar allegations about diverted projects and misuse of resources were being litigated. Adding another derivative claim risked further duplication, procedural complexity, and inconsistent judgments. The Court characterized the proposed derivative action as both frivolous—because its central factual premise was contradicted by the evidence—and vexatious, because it served only to multiply proceedings and gain tactical leverage in a shareholder dispute. On the “best interests” requirement, the Court noted significant overlap with the good-faith analysis: the strength and seriousness of the claim is central, although not the only factor. After hearing six witnesses over three days and reviewing extensive materials, the Court found the derivative application “markedly deficient” in evidentiary support. Many of its allegations were couched in speculative terms (“serious grounds to believe,” “to the best of his knowledge,” “assuming” undisclosed interests) and were not backed by concrete proof. Additionally, the same themes and grievances were already central to the oppression and liquidation proceedings; the real objective of the derivative claim appeared to be improving Pompura’s bargaining position and ultimately increasing his share of any liquidation proceeds—not vindicating a distinct corporate interest. The Court therefore concluded that the action did not appear to be in the Group’s best interests.

Prescription and dismissal of the derivative application

At the close of the plaintiffs’ evidence, Tiramani’s counsel made an oral application to dismiss the derivative application, principally on the basis of prescription. The Court accepted that such an oral request could properly be made under the Code of Civil Procedure after the plaintiff had closed its case, especially where dismissal could flow from abuse (including reliance on a clearly prescribed claim). The key question was when Pompura became aware of the alleged diversion of the three projects. His assertion that he only learned of these matters around 2024 through his son or casual industry conversations was treated as hearsay and given no weight, as neither his son nor any other corroborating witness testified. By contrast, Pompura’s own earlier testimony before Justice Corriveau in April 2025—introduced as admissions—made clear that he had known since at least 2020 that Tiramani had, in his words, “stolen clients” and diverted projects, and that he chose not to act then for business reasons (focusing instead on finishing a lucrative Pointe-Claire project and then moving on). Quebec prescription principles under art. 2925 CCQ provide a three-year limitation period starting when a reasonably prudent and informed person can suspect the link between the alleged fault, the injury, and the alleged wrongdoer. On the Court’s analysis, by 2020 Pompura knew who he believed was at fault, what the alleged fault was (diverted projects and clients), that there was financial harm, and the causal link he now asserts. The three-year period therefore began no later than that point. Filing in 2025 on claims tied to 2012–2020 events meant the derivative action, as framed around the three competing projects, was prescribed and void of any realistic chance of success. While the Court stopped short of declaring the proceeding abusive in the technical sense—partly because the defence raised prescription late, after the evidence was heard—it nonetheless granted the application to dismiss on prescription grounds in addition to refusing authorization on the statutory criteria.

Overall outcome and implications

There is no discussion in this judgment of insurance policy terms or clauses; the dispute is framed entirely around corporate governance, fiduciary duties, and shareholder remedies, not insurance coverage. In the end, the Court viewed the proposed derivative action as a side show to the main oppression and liquidation file, driven by the deteriorated relationship of the only two shareholders in a partnership now in its “terminal phase.” Concerned by the escalating spiral of overlapping proceedings and the risk of inconsistent outcomes, the Court urged consolidation and active case management in a single forum. Formally, the Superior Court dismissed the plaintiffs’ derivative application, granted the defendants’ application to dismiss, and ordered costs against the plaintiffs. The defendants, Vittorio Tiramani and Gestion Julstef Inc., are therefore the successful parties, but the decision does not quantify the costs or any other monetary award, so the exact total amount ordered in their favor cannot be determined from this judgment.