Deals & Suits 2008
Deals & Suits 2007
Deals & Suits 2006
Deals & Suits 2005
Deals & Suits 2004
Deals & Suits 2003

BLG Deals and Suits 2008

George Weston Limited enters into $300 Million Revolving Credit Facility
On April 11, 2008, George Weston Limited entered into a new revolving credit facility with a syndicate of lenders in an amount of $300,000,000. George Weston Limited (GWL) is a Canadian public company founded in 1882 and through its operating subsidiaries constitutes one of North America’s largest food processing and distribution groups. GWL has two reportable operating segments: Weston Foods and Loblaw Companies Limited.

Canadian Imperial Bank of Commerce acted as administrative agent on the credit facility. CIBC World Markets and RBC Capital Markets acted as co-lead arrangers and joint-bookrunners. RBC Capital Markets also acted as syndication agent. Bank of Montreal, The Bank of Nova Scotia and The Toronto-Dominion Bank acted as co-documentation agents.

GWL was represented in-house by Robert Balcom and Adam Walsh, who were assisted by Borden Ladner Gervais LLP, counsel to GWL, with a team that included Stephen Redican, Kenneth Atlas and Angela Lin.

Loblaw Companies Limited enters into $800 Million Revolving Credit Facility
On March 20, 2008, Loblaw Companies Limited entered into a new $800,000,000 revolving credit facility with a syndicate of lenders. Loblaw Companies Limited (Loblaw) is Canada’s largest food distributor and a leading provider of general merchandise products, drugstore and financial products and services.

Canadian Imperial Bank of Commerce acted as administrative agent on the credit facility. CIBC World Markets and RBC Capital Markets acted as co-lead arrangers and joint-bookrunners. RBC Capital Markets also acted as syndication agent. Bank of Montreal, The Bank of Nova Scotia and The Toronto-Dominion Bank acted as co-documentation agents.

Loblaw was represented in-house by Robert Balcom and Adam Walsh, who were assisted by Borden Ladner Gervais LLP, counsel to Loblaw, with a team that included Kenneth Atlas, Stephen Redican and Angela Lin.

Leon Stanley Wickham v. Law Society of Upper Canada, 2008 ONLSHP 001
Law Society of Upper Canada - Disbarment - Criteria for Readmission
Freya Kristjanson, Adam Douglas, and Noel Semple for Leon Wickham
Mr. Wickham was a lawyer who was disbarred by the Law Society of Upper Canada in 1994 after he failed to respond to the Law Society's requests for information regarding a series of client complaints. He applied for readmission in 2007. He indicated that his conduct in 1994 was the result of difficulties with the complexity of litigation cases he had taken on and stress caused by cash-flow problems due to acting for many impecunious clients. He had attempted to contact the Law Society's Practice Advisory service but that did not result in the intervention he required, and he also experienced some significant marital problems at that time. From the time of his disbarment through 2007, Mr. Wickham worked for Carswell Legal Publishing and received generally excellent performance reviews. He also presented supportive evidence from a psychiatrist and many character witnesses at the hearing.
The Panel considered the requirements for readmission set out Weisman v. Law Society of Upper Canada and Watt v. Law Society of Upper Canada and found that Mr. Wickham had met the heavy onus for reinstatement to the Law Society. What had caused his disbarment was an inability to meet his professional obligations, and the evidence of his character and actions in the 13 years since the disbarment convinced the Panel that he had the capacity to practice again. The Panel imposed terms on his readmittance to the Law Society designed to ensure that he would not be overwhelmed by his practice and to compensate the Law Society for the cost of the various Law Society proceedings and claims related to him. BLG took on this case pro bono.

Canada Housing Trust™ No. 1 – $11 Billion Public Offering
On March 27, 2008, Canada Housing Trust™ No. 1, a special purpose securitization trust, completed the largest two-tranche debt financing in Canadian history when it issued 3.60% Canada Mortgage Bonds, Series 19, in an aggregate principal amount of $9.0 billion and 4.05% Canada Mortgage Bonds, Series 13 (Second Re-Opening), in an aggregate principal amount of $2.0 billion, for a combined total of $11.0 billion of Canada Mortgage Bonds, which were provided with Canada’s sovereign guarantee through Canada Mortgage and Housing Corp. (CMHC).

CMHC was represented in-house by Reem Hindieh, Marc-André Sirois and Louise Michel, who were assisted by Borden Ladner Gervais LLP, counsel to CMHC and special counsel to the trust, with a team that included Rosalind Morrow, Adam Segal, Terence Lui and Habeeb Syed (corporate and securities), Stephen Redican, Gus Karantzoulis and Alexander Singh (banking and financial services) and Larissa Tkachenko (tax) in Toronto and Johanne Thomas (civil) in Montreal.

Québec Superior Court approves BCE's plan of arrangement for the company's privatization
On March 7, 2008, Justice Joël A. Silcoff, of the Commercial Division of the Superior Court of Québec, released five highly anticipated judgments in connection with the proposed privatization of BCE by an investor group led by Teachers' Private Capital, the private investment arm of the Ontario Teachers' Pension Plan, Providence Equity Partners, Madison Dearborn Partners, and Merrill Lynch Global Private Equity. The privatization of BCE, to be effected under a plan of arrangement, is opposed by a group of bondholders of Bell Canada, BCE's wholly-owned subsidiary, and the trustees under certain trust indentures entered into by Bell Canada.

In the first ever judgment rendered by a Canadian Court dealing with the treatment of bondholders in the context of a leveraged buy-out transaction, Mr. Justice Silcoff ruled in favour of BCE and Bell Canada on every point of contention, approved the plan of arrangement, and dismissed all proceedings brought by the contesting bondholders and trustees.

In their contestations of the plan of arrangement, oppression claims, and motions for declaratory judgments, the contesting bondholders and trustees argued that the plan of arrangement was not fair and reasonable; that the contemplated leveraged buy-out transaction, which provides for the guarantee of the acquisition debt by Bell Canada and its subsidiaries, was oppressive to Bell Canada's bondholders; and that the privatization of BCE breached a provision contained in two trust indentures of Bell Canada, which provide that Bell Canada and the relevant trustees must approve any reorganization or reconstruction of Bell Canada as being in no way prejudicial to bondholders.

In approving the plan of arrangement, the Court concluded that the rights of Bell Canada bondholders were not being altered or arranged by the contemplated transaction, and that the fact that the economic interests of the bondholders may be adversely affected did not give them a right to vote on the plan of arrangement. The Court concluded that there was no justification to grant the bondholders a veto over a transaction with an aggregate equity value of approximately $35 billion that was approved by over 97% of the voting shareholders. To do so would set a dangerous precedent and could result in uncertainty and instability in the equity and debt markets for years to come.

With respect to the oppression claims, the Court concluded that they were unfounded. Procedurally, the Court found that contesting bondholders had not followed the procedures provided under “no action” clauses of the trust indentures and therefore the bondholders did not have standing to institute the oppression claims. With respect to the merits of the claim for oppression, the Court concluded that the bondholders were not entitled to any rights over and above their respective contractual rights as negotiated in the trust indentures and the respect of their reasonable expectations resulting therefrom. The Court concluded that there was no evidence that the right of the bondholders had been disregarded by the board of directors of BCE. On the contrary, the board of directors rightly concluded that the applicable trust indentures did not contain any change of control provision, that there was not a change of control of Bell Canada and that accordingly Bell Canada's bondholders could not reasonably expect BCE to reject a transaction that maximized shareholder value on the basis of any negative impact to them. The Court was of the opinion that the best interest of both Bell Canada and BCE, as well as those of their shareholders, are and will be served by the implementation of the plan of arrangement.

The Court affirmed that, in the wake of the Supreme Court of Canada decision in Peoples vs. Wise, a board of directors still has an overriding duty to maximize shareholder value when a company is put in play. Mr. Justice Silcoff reiterated that reasonable expectations of bondholders, especially sophisticated investors, must be assessed on an objective basis and, absent other compelling reasons, must be derived from the applicable trust indentures themselves and the relevant prospectus issued in connection with the debt offerings. The Court also stated that representations made by a company may be of assistance in determining fairness in the context of an oppression remedy, but that it is also necessary to examine the context in which these representations were made and any caveat attaching thereto. More specifically, Mr. Justice Silcoff held that safe harbour notices or other warnings that expressly preclude investors, such as bondholders, from relying on the statements in circumstances in which they then purport to be relied on, cannot create reasonable expectations. In this instance, Bell Canada's and BCE's safe harbor notices precluded bondholders forming reasonable expectations that BCE and Bell Canada would not allow their credit rating to go below investment grade status by reason of a leveraged buy-out.

Finally, the Court found that a provision contained in two trust indentures of Bell Canada, which provide that Bell Canada and the relevant trustees must approve any reorganization or reconstruction of Bell Canada as being in no way prejudicial to bondholders, did not apply to the contemplated transaction.

The lenders syndicate was represented by Borden Ladner Gervais LLP with a team comprised of Jacques Darche, Tommy Tremblay and Andréanne Latreille, as well as Gowling Lafleur Henderson LLP by Michael Watson.

The Co-operators and Addenda Capital Inc. Announce Agreement (Feb. 25, 2008)
The Co-operators Group Ltd. and Montreal-based institutional investment management firm Addenda Capital Inc. (TSX: ADV) announced that they have entered into an agreement. Under the terms of the agreement, Addenda will amalgamate with a subsidiary of The Co-operators. The transaction, which values Addenda’s equity at approximately $306.5 million, will be implemented by way of a statutory amalgamation under the Companies Act (Quebec) and is subject to customary conditions precedent, including approval of the amalgamation by shareholders of Addenda and obtaining any required regulatory approvals.

With assets under management of approximately $29 billion, Addenda is a leader in the institutional fixed income market. Based in Guelph, Ontario, The Co-operators is the leading Canadian-owned multi-pocket insurance company. The new entity, which will operate under the Addenda brand, will have offices in Montreal, Toronto, Guelph and Regina, will manage approximately $40 billion in assets and have significant potential for future growth. The combined entity will be known as Addenda Capital Inc.

Borden Lander Gervais LLP (Frank Allen, Gord Raman, Paul Simon, Habeeb Syed, John Godber, Tammy Shulman, Fred Enns, Charles Marquette and François Longpré) is acting as legal counsel to The Co-operators.

Based in Guelph, Ontario, The Co-operators is a group of Canadian companies offering home, auto, life, group, commercial and farm insurance, as well as investment products. With assets of $7 billion, The Co-operators is a co-operative owned by 40 Canadian co-operatives, credit unions and like-minded organizations. It is well known for its community involvement, and is listed among the 50 Best Employers in Canada.

OMERS Sponsors Corporation v. OMERS Administration Corporation, Ontario Superior Court of Justice, February 6, 2008
Pension Plans - Administration - Ontario Municipal Employees Retirement System Act - Joint Protocol
Freya Kristjanson and Amanda Darrach with Alan Rock, Q.C. for the Plaintiff
The parties to this proceeding are both charged with governing the Ontario Municipal Employees Retirement System (OMERS) pension plans under the Ontario Municipal Employees Retirement System Act, S.O. 2006, c. 2. Under the Act, the Respondent is to reimburse the Applicant for certain costs that may lawfully be paid out of the pension funds. The parties established a Joint Protocol in 2007 to outline these reimbursements and they brought this application jointly to have the Court adjudicate the validity of the protocol. The main criterion in establishing the protocol was whether an item was necessary for the administration of the OMERS pensions. The parties had appeared previously to obtain directions from the Court regarding the persons to whom notice of this application should be given and the form of such notice. The Court's directions had been fully complied with.
The Court held that the Joint Protocol was legally valid, and that both the categories of costs sought to be reimbursed and the kind of administrative support provided by the Respondent to the Applicant were reasonable. It did so recognizing that the OMERS plans are not traditional single-employer plans, thus taking them out of the ambit of much of the case law in the area. This case assists in delineating the rights and obligations of the Applicant and the Respondent pursuant to the Act, which is fairly new legislation that changed how OMERS, one of the country's largest pension plans, is governed.

La Maison Benoît Labre v. Montreal, Quebec Municipal Board, February 5, 2008
Municipal Taxes - Exemption - Non-Profit Organization
Joseph Takhmizdjian for La Maison Benoît Labre
This was a pro bono initiative on BLG's part to assist La Maison in its application to the City of Montreal for an exemption from paying certain municipal taxes while renovations were being conducted on one floor of a building which it owned. La Maison was established in 1952 and offers a variety of programs to assist Montreal's poor. It was assessed $12,000 in taxes by the City while renovations were ongoing on one floor on the basis that that section of the building was not being used for charitable purposes at that time and, thus, could not be tax exempt. The Commission found that La Maison met the criteria set out in the relevant sections of the Loi sur la fiscalité municipale necessary to obtain a tax exemption over the entire building despite the ongoing renovations and it so ordered.

Gauthier v. Le Conseil Canadien des Ingénieurs, La Corporation de l'École Polytechnique de Montréal and l'Ordre des Ingénieurs du Québec, Quebec Superior Court, February 4, 2008
Canadian Engineers Accreditation Board - Quebec Human Rights Charter - Discrimination
Marie-Claude Sarrazin and Yvan Houle for the Defendants
This was an action taken by students enrolled in a double diploma program at École Polytechnique seeking to set aside a decision taken by the Canadian Engineers Accreditation Board ("CEAB"), a committee of Engineers Canada. The provincial professional associations that regulate the profession of engineering and license engineering professionals in Canada established Engineers Canada to deliver national programs for engineering education in Canada. Engineers Canada created the CEAB to review and accredit the various university programs taken to obtain a license issued by the provincial associations.
Polytechnique had established a double degree program whereby a student would attend the final two years of the four-year diploma program with one of certain specified engineering schools in France. The student would then obtain a diploma from both universities. Although the program had been in effect for 10 years, the CEAB advised Polytechnique that it would no longer accredit the program. The result was that the 2006 graduates who returned from France obtained accredited degrees but those students about to leave the Canadian program or who were already in France would not obtain accredited degrees if they pursued the program. The students challenged the process used by the CEAB to makes its decision and alleged that it was discriminatory and contrary to the Quebec Charter of Rights.
The Quebec Superior Court dismissed the action holding, in essence, that the CEAB's process was both proper and had been followed in this case.

Pearson Completes Acquisition of Harcourt Assessment
On January 30, 2008, Pearson plc, the international education and information company, completed the acquisition of the Harcourt Assessment and Harcourt Education International businesses from Reed Elsevier for a total cash consideration of $950 million.

Pearson is the global leader in educational publishing, assessment, information and services and its other primary businesses include the Financial Times Group and the Penguin Group. Harcourt Assessment, headquartered in San Antonio, Texas, is a leader in testing and performance measurement services for educational and clinical use. Harcourt Education International, headquartered in Oxford, UK, is a leading publisher of educational materials in international markets, including the UK, South Africa, Botswana, Australia and New Zealand. Reed Elsevier is a leading provider of global information driven services and solutions.

Pearson was represented in Canada by Borden Ladner Gervais LLP with a team that included Paul Mingay (corporate), Adam Fanaki (competition and Investment Canada), Larissa Tkachenko (tax), Mike Fitzgibbon (employment), Sonia Mak (pensions/benefits) and Shaunik Katyal (corporate).

Re: Expropriation Act, R.S.A. 2000, c. E-13 and Tadich and Chan, Expropriation Inquiry, January 25, 2008
Expropriation - "Reasonably Necessary"
Michael Marion and Sharon Borgland for the Owners
This was an expropriation inquiry into whether two clients' homes were reasonably needed by the City of Calgary pursuant to the 16th Avenue (TransCanada) highway widening project. The matter related to a rear lane that will be constructed to service businesses after the widening. The question was whether the expropriation was "fair, sound and reasonably necessary" in the achievement of the objectives of the expropriating authority, and the onus was on the City to show that this was so. After hearing substantial evidence, the Inquiry Officer agreed that the lane could meet the objectives of the City while avoiding the Owners' properties. Thus, the expropriation was not reasonably necessary. The Owners were awarded their reasonable costs and counsel's closing submissions were quoted in their entirety in the reasons.

China Minmetals Non-Ferrous Metals Co., Ltd. and Jiangxi Copper Company Ltd. Acquire Northern Peru Copper Corp.
On January 25, 2008, China Minmetals Non-Ferrous Metals Co., Ltd. and Jiangxi Copper Company Ltd. announced their acquisition by way of take-over bid of approximately 96% of the outstanding shares of Northern Peru Copper Corp. for $13.75 per share in cash. Northern Peru Copper is engaged in the exploration and development of advanced-stage copper and gold properties in Peru. China Minmetals, a Chinese state-controlled corporation, and Jiangxi Copper, a Chinese state-controlled public corporation, now control Northern Peru Copper through a joint venture owned 60% by China Minmetals and 40% by Jiangxi Copper. China Minmetals and Jiangxi Copper will acquire the remaining shares of Northern Peru Copper pursuant to a compulsory acquisition transaction.

The transaction valued Northern Peru Copper at approximately $455 million. Prior to making the offer, China Minmetals and Jiangxi Copper entered into a support agreement with Northern Peru Copper and lock-up agreements pursuant to which the locked-up shareholders agreed to deposit approximately 42% of the Northern Peru Copper shares to the offer.

China Minmetals and Jiangxi Copper were represented by Davies Ward Phillips & Vineberg LLP with a team in Toronto that included Ian McBride, Patricia Olasker, Kevin West, Michael Rapps and Linus Yung, with Geoff Turner and Chris Anderson providing tax advice, and Darren Novak in New York providing U.S. securities law advice. China Minmetals and Jiangxi Copper were also advised in China by Haiwen Partners (Ma Chen and Glen Su), in Peru by Rodrigo, Elias & Medrano, Abogados (Luis Carlos Rodrigo and Francisco Tong) and in British Columbia by Farris, Vaughan, Wills & Murphy LLP (Hector MacKay-Dunn and Peter Roth).

Northern Peru Copper was represented by it's Secretary, Robert Pirooz, and by Borden Ladner Gervais LLP, with a team that included Fred R. Pletcher, Steven McKoen and Melanie Bradley. Northern Peru was also advised in Peru by Hernandez & Cia (Luis Rodriguez-Mariategui Canny) and in China by Morrison & Foerster (Paul McKenzie).

Lorentz v. Ready Bake Foods Inc., Ontario Labour Relations Board, January 23, 2008
Labour Relations - Unfair Labour Practices - Lay offs
Michael Fitzgibbon for Ready Bake Foods Inc.
BLG represented Ready Bake Foods (a subsidiary of George Weston Limited) at the Ontario Labour Relations Board in unfair labour practice proceedings arising out of the closure of the transportation department and the resulting layoff of 26 drivers at Ready Bake's Mississauga location. The case has a protracted history and required that BLG bring numerous preliminary motions that resulted in the striking out of significant portions of the pleadings and the dismissal of a number of substantive claims against Ready Bake Foods. The early decisions examined the extent to which individuals, rather than their trade union, were permitted to bring unfair labour practice proceedings against the employer. The Board also found that a freely negotiated and ratified "closure agreement" was a collective agreement within the meaning of the Ontario Labour Relations Act, 1995 and that any disputes under the closure agreement had to submitted to "final and binding arbitration" for determination and that the Board was without jurisdiction to consider these claims.
A much narrowed case proceeded before the Board in which, among other things, the Applicants were seeking remedies that would have resulted in Ready Bake having to reverse its business decision, reopen the location and pay damages, including in excess of 12 months wages, to each of the 26 drivers as well as damages relating to severance. The Board dismissed the unfair labour practice complaint and all other allegations against Ready Bake.

Certified General Accounts Association of Canada v. Canadian Public Accountability Board, Ontario Superior Court of Justice, Divisional Court, January 22, 2008
Administrative Law - Judicial Review of Non-Statutory Tribunal - Declaratory Relief - Accountants - Professional Responsibility - CGA Code of Conduct
Bruce Carr-Harris, Gerry Stobo and Derek Leschinsky for CGA-Canada
A dispute arose between Certified General Accountants Association of Canada ("CGA-Canada") and Canadian Public Accountability Board ("CPAB") concerning whether CPAB would accept CGA-Canada's Code of Conduct or would require CGAs to abide by the Code of Conduct adopted by Chartered Accountants. CGA-Canada commenced a judicial review application when CPAB began establishing barriers to the adoption of CGA standards. CPAB brought a motion to quash CGA-Canada's application. The Divisional Court dismissed the motion to quash in a decision that is significant for a number of reasons.
First, the Divisional Court found that it had the jurisdiction to hear a judicial review in respect of a non-statutory tribunal notwithstanding case law to the contrary. The Court found that the Divisional Court's jurisdiction is based on whether a tribunal is public, not whether it is statutory. CPAB's structure was innovative in that it was an attempt to establish a national regulator over the securities industry without the enactment of federal legislation (which is constitutionally impermissible). CPAB's argument that this non-statutory structure made it immune from judicial review challenges except by its members was rejected by the Court. Second, the Court found that CGA-Canada, as a professional self-regulatory body, had standing to challenge matters affecting its members. This ruling arguably expands the jurisdiction that professional bodies will have to advance matters before our courts that are in the interests of their members. Third, and finally, the Court found that declaratory relief may be available in this case because although the original dispute was no longer a live one, a declaration (concerning the structure and conduct of CPAB) could serve a useful purpose, or even a preventative role, in addressing the regulatory autonomy of these two bodies.

Hepburn v. Jannock Limited et al., Ontario Superior Court of Justice, January 11, 2008
Termination of Employment - Pension Benefits - Extrinsic Evidence - Rectification - Trusts - Promissory Estoppel
Matthew Certosimo, Lisa De Piante and Craig Hill for the Plaintiff
In the 1980s, Jannock had commenced a supplementary employment retirement plan ("SERP") for its executives. The Plaintiff was terminated from Jannock's employment in 1999 after over 20 years of service when a subsidiary (the Brick Group) was sold. The Plaintiff's employment contract since 1988 had provided for an additional 36 months of SERP contributions upon a change in control in the Brick Group, but the relevant terms were modified in 1999. The sale of the Brick Group was not technically a change in control and a dispute arose as to the Plaintiff's entitlement to the additional 36-month SERP credit. The Defendants claimed that he was not entitled to the credit because he accepted a position with the Brick Group's purchaser after having been terminated. Further complicating the issue was a Companies' Creditors Arrangement Act ("CCAA") proceeding involving the Defendant companies that was commenced in 2003, but Craig Hill was successful in obtaining leave in 2004 to pursue the claim despite the CCAA proceedings.
The dispute focussed on the interpretation of the 1999 agreement. The sale of the Brick Group was being contemplated at that time and the Plaintiff claimed that he requested a term similar to the one included in his 1988 agreement that would be triggered by a sale of the Brick Group rather than a change in control of Jannock and would be available regardless of whether he accepted a position with the purchaser. He prepared written notes before the meeting to discuss these amendments and sought independent legal advice in an attempt to ensure this was accomplished. He was also assured by a Jannock executive that the language of the 1999 amending agreement provided for what he intended. While initially, the Plaintiff was treated as having an additional 36 months of pension benefits, the position changed when Jannock was acquired and amalgamated with other corporate entities.
The Court found that the 1999 agreement was clear in providing to the Plaintiff the additional 36 months of pension benefits only if he did not accept a position with the purchaser and, thus, no extrinsic evidence could be admitted to aid in the interpretation of the agreement. However, the Court went on to find that it would not be fair or equitable to deny the Plaintiff the 36 months given the clear intentions of Jannock at the time of the 1999 agreement to provide that benefit. Therefore, it rectified the 1999 agreement to provide for the additional 36 months in SERP benefits. The Court found in the alternative that the Plaintiff could succeed on the basis that the applicable SERP funds were held in trust for his benefit. Finally, the Court would have allowed the Plaintiff to rely on promissory estoppel to obtain relief, as well.

Agnico-Eagle Mines Limited Enters into a US$300,000,000 Unsecured Revolving Credit Facility
On January 10, 2008, Agnico-Eagle Mines Limited entered into a US$300,000,000 unsecured revolving credit facility made available by a syndicate of domestic and foreign lenders. The syndicate of lenders was led by The Bank of Nova Scotia, as administrative agent and co-lead arranger, and Société Générale (Canada Branch), as co-lead arranger.

The lenders were represented by a team from Borden Ladner Gervais LLP that included Howard Silverman and Angela Lin.

Baranick v. Queensway Carleton Hospital and Mary Brown, Ontario Superior Court of Justice, January 8, 2008
Revocation of Hospital Privileges - Public Hospitals Act - Health Professions Disputes and Review Board - Stay of Proceedings
Kirsten Crain for the Defendants
This was an application by the Defendants for a stay of proceedings. The Plaintiff claimed his hospital privileges were improperly revoked and sought his lost income resulting from that revocation. The Defendants denied that a revocation had occurred and claimed, in any event, that the Court was without jurisdiction over the matter, since the Public Hospitals Act established the Health Professions Disputes and Review Board to hear the very complaints being brought by the Plaintiff. Since he failed to avail himself of his statutory remedies, his claim could not succeed. The Court agreed that the Plaintiff had attempted to improperly circumvent the proper procedure and stayed the action as a consequence until a determination by the Board had been made and awarded the Defendants their costs.

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BLG Deals and Suits 2007

Acuity All Cap & Income Trust, Acuity Diversified Total Return Trust, and Acuity Multi-Cap Total Return Trust merged into Acuity Growth & Income Trust.
Acuity All Cap & Income Trust (“All Cap”), Acuity Diversified Total Return Trust (“Diversified”), and Acuity Multi-Cap Total Return Trust (“Multi-Cap”) merged into Acuity Growth & Income Trust (the “Continuing Fund”) effective as of the close of business on December 28, 2007 (the “Merger”). The Merger was approved by unitholders of All Cap, Diversified and Growth at special meetings held on December 13, 2007 and by Multi-Cap unitholders at a special meeting on December 24, 2007. The Continuing Fund retained the name “Acuity Growth & Income Trust” and continues to trade on the Toronto Stock Exchange under the symbol “AIG.UN”.

The Continuing Fund acquired the assets and liabilities of All Cap, Diversified and Multi-Cap (collectively, the “Terminating Funds”) by issuing Units of the Continuing Fund each of to the Terminating Funds equal to the net asset value of each Terminating Fund. The aggregate net asset value of the Terminating Funds was $91,573,976.

The manager of the funds, Acuity Funds Ltd., was advised by Lynn McGrade, Michael DeCosimo, Michael Tripp, Ruth Liu (securities/M&A) and Stephen Fyfe (tax) of Borden Ladner Gervais LLP.

Belland v. Trojan Safety Services Ltd., 2007 BCHRT 439
Human Rights - Discrimination - Mental Disability - Delay - Public Interest
Steve Winder and Lara Percy for the Respondent
Mr. Belland brought a complaint alleging that the respondent had discriminated against him on the basis of mental disability. He had attended a serious industrial accident at work and afterwards began suffering from post-traumatic stress syndrome. The respondent eventually removed him from duty and terminated his employment in May 2005. He then brought a claim in June 2007, more than two years after the alleged wrongful act occurred. However, section 22(1) of the B.C. Human Rights Code requires a claim be brought within 6 months. Therefore, Mr. Belland brought an application under section 22(3) for an order that the Tribunal exercise its discretion to allow his claim to proceed despite the delay. Under that provision, he had to show that it was in the public interest to accept the complaint and that no substantial prejudice would result if that were ordered.
The Tribunal assumed without deciding that the claim raised issues in the public interest. However, it held that any such interest was outweighed by the length of delay in filing the complaint. There was no compelling or convincing reason for the delay and thus the complaint could not proceed.

Marcotte v. City of Longueuil, 2007 CanLII 55341 (S.C.C.A.)
Tax - Reimbursement of Illegal Taxes - Class Action - Certification
Marie Audren, Emmanuelle Rolland, Daniel Jutras and Georges Thibaudeau for the Plaintiffs
BLG has obtained leave to appeal to the Supreme Court of Canada on a decision rendered by the Court of Appeal of Quebec denying certification of a class action. The Plaintiff wishes to institute a class action against the City of Longueuil in order to have a tax by-law declared invalid and obtain the reimbursement of taxes paid. The Supreme Court decision will determine if class actions can be used to obtain the reimbursement of taxes illegally levied by a government body.

Summit Staging Ltd. v. 596373 B.C. Ltd., 2007 BCSC 1782
Summary Trial - Suitability of - Credibility - Real Estate
Stephen Antle and Maryam Sherkat for Summit Staging Ltd.
This was an application by the realtor Defendants for judgment by way of summary trial in a case involving allegations surrounding the sale of a property owned by the Plaintiff. The Plaintiff alleged that the Defendants breached their contract, their duty of care and their fiduciary duty to the Plaintiff by arranging to sell a piece of property owned by the Plaintiff at lower than its value and at a very high commission. The Plaintiff's representative had signed sale documents setting out the sale price and the commission, which the Defendants claimed disposed of the case in its entirety.
The Court agreed with the Plaintiff that it would be unjust to resolve the matter on a summary trial. The Defendants had attempted to get around credibility issues by relying, in cases of conflict on the evidence, on the answers provided by the Plaintiff on discovery. However, the judge noted there remained important questions to be resolved. He dismissed the application and awarded costs to the Plaintiff.

Tsilhqot'in Nation v. British Columbia and Canada, 2007 BCSC 1700
First Nations - Aboriginal Title - Treaty Negotiation - Crown Duties
Ken Tyler, Pat Foy, Stephanie Lysyk, Jason Murray, Brad Dixon, Scott Kerwin, Michelle Maniago and Kylie Walman for the Attorney General of British Columbia
In this case, the Plaintiff First Nations Band sought a binding declaration respecting Aboriginal title claims to 4,380 square kilometres of land in the interior of British Columbia situated about 200 kilometres north of Vancouver by air. The case was commenced in the early 1990s by the Xeni Gwet'in First Nation (pop. circa 400), one of six or seven Indian bands that comprise the Tsilhqot'in Nation (pop. circa 3,000). The Aboriginal title claims of the other Tsilhqot'in Indian Bands are outstanding. The claimed area represents about 50% of the Xeni Gwet'in's "traditional territory" and 5 to 10% of the Tsilhqot'in traditional territory.
The Court agreed with the Province's position that the Tsilhqot'in Nation had to make its claim to the entire area and, as a result, it declined to make a legally binding declaration of Aboriginal title. However, as an alternative to a declaration, the judge identified those lands that he considered to be Aboriginal title lands. He described his comments and findings as non-binding and as intended to aid the process of reconciliation between Aboriginal peoples and the Crown.
The Court also drew certain conclusions about the application of provincial laws to Aboriginal title lands, which call into question whether any provincial legislation involving land use planning or resource management can apply. The judge recognized the "serious implications" of his ruling, but stressed the need for the federal Crown to reaffirm its "central role" in the relationship with Aboriginal Canadians.
The Tsilhqot'in Nation's $100 million damages claim, for wrongful infringements of its Aboriginal title, was dismissed without prejudice to their right to seek damages in a future case. The case also leaves open the effect of underlying Aboriginal title on third party rights derived from provincial authority, such as fee simple titles, licences, and tenures.
Finally, the judge held that the provincial Limitation Act could not apply to Aboriginal title claims, or else the Province would effectively be allowed to extinguish Aboriginal title. The judgment follows a trial that took 339 days between November 2002 and April 2007.

Bexley Trading Inc. v. Ottawa Health Research Institute and Wells, Ontario Superior Court of Justice, December 31, 2007
Security for Costs - Appeal - Estoppel - Impecuniosity - Reasonable Assessment
Kirsten Crain for the Defendants
This was an appeal from a Master's order that the Plaintiff post security for costs in the amount of $75,000 up to the settlement conference and a further $225,000 60 days before trial. The Plaintiff appealed on the basis of estoppel, since another master had made a prior order for security for cots, its impecuniosity, and that the amount of costs was unreasonable. The Plaintiff also argued that the appeal should be a rehearing of the initial application.
The Court first held that the standard of review was not one of rehearing but that the decision must be so clearly wrong as to constitute a miscarriage of justice. It then dismissed the Plaintiff's estoppel claims since the Rules of Civil Procedure expressly contemplated that awards for security for costs may be varied as the proceedings progress (Rule 56.07). With respect to the impecuniosity claim, the Court found that the Plaintiff had not presented sufficient evidence to show impecuniosity and had, thus, not met its "heavy onus" in this regard. Finally, the Court found no error in principle in the assessment of costs. The appeal was dismissed.

Iroquois Falls Community Credit Union v. Co-Operators General Insurance Company et al., Ontario Superior Court of Justice, December 20, 2007
Fidelity Bonds - Fraud and Dishonesty - Notice - Indirect Loss - Loans and Overdraft Exclusion
Jane Bachynski and Derek Leschinsky for the Plaintiff
The Plaintiff applied for summary judgment in an action arising from a denial of payment on a fidelity bond issued by the Defendants on a claim related to the fraudulent actions of the Plaintiff's general manager. The parties agreed that the wrongful acts had in fact occurred, and in fact were admitted by the perpetrators. However, the Defendants denied the bond claim on the bases that: (a) the wrongful acts were "unfaithful performance" rather than "dishonesty" or "fraud" under the bond; (b) the Plaintiff had not provided notice within the time period specified in the bond; and (c) much of the loss fell within the indirect loss and loans and overdraft exclusions in the bond.
The Plaintiff's were successful on the application. The Court first found that to interpret the wrongdoers' actions in this case as "unfaithful performance" rather than fraud or dishonesty would remove any commercial value from the bond, the form of which had been issued to approximately 175 different credit unions. Rather, "unfaithful performance" in the bond related to conduct that falls short of dishonesty, and the fact that the perpetrators' actions were unfaithful performance as well as fraudulent and dishonest did not remove the application of the fraud and dishonesty provisions of the bond. Secondly, the Court found that while some of the facts relating to the wrongdoers' conduct did come to the attention of the Board of the Plaintiff sometime prior to the report, it did not know the nature of the loss and, thus, did not know that the actions may result in a claim under the bond until a significant client's bankruptcy caused the president of the Plaintiff to review several credit union records. The bonding company was notified approximately two weeks later. Finally, the Court determined that the exclusions in the bond cited generally did not apply. It granted summary judgment to the Plaintiff on the basis that there was no genuine issue for trial and there were no credibility issues that would prevent summary judgment from issuing. The Plaintiff was awarded all of its claimed loss other than the interest and service charges on certain overdrafts and extensions of credit that the wrongdoers authorized improperly since these fell within the "indirect losses" exclusion in the bond.

Vidéotron Ltée v. Syndicat des Employé(e)s de Vidéotron Ltée (SCPF) 2815 et al., Quebec Superior Court, December 20, 2007
Labour Law - Strike - Damages for Vandalism - Disclosure of Police Reports
Jacque Darche for Vidéotron Ltée
In this action, Videotron is seeking $30,000,000 in damages against labour unions for losses incurred as a result of acts of vandalism during a strike. Videotron applied to obtain over 400 police reports from over 30 police departments across Quebec in relation to these acts of vandalism. The Defendants resisted the application on the basis that it was a mere fishing expedition and pointed to the already voluminous documentary record of some 28,000 documents. The Court allowed Videotron to subpoena the chiefs of police in the relevant precincts to require them to file the reports in the Court record, despite the admission on the part of Videotron that it could not say with any certainty what was contained in the reports requested beyond an assertion that they were relevant. The Court did require the Plaintiff to pay the costs of filing the requested reports.

Armadale Square Inc. and The Great West Life Assurance Company v. A&P Properties Limited, Ontario Superior Court of Justice, December 19, 2007
Landlord and Tenant - Proportionate Share of Taxes - Rectification
Barry Bresner and Christina Litt for the Plaintiffs
The Plaintiffs (the former owner and owner, respectively, of the property in issue) leased certain shopping mall space to the Defendant to operate a supermarket. A dispute arose regarding the share of realty taxes to be paid by A&P. The lease under a provision entitled "Shopping Centre Operating Costs and Taxes" stated that the tenant would pay to the Landlord "the Tenant's proportionate share of Operating Costs and the Tenant's share of the Taxes assessed against or attributable to the Centre". The Plaintiffs argued that this required the Defendant to pay taxes based on the proportionate share of the store's area, or in the alternative that the agreement should be rectified to impose this clarification. The Defendant pointed to the absence of the word "proportional" vis-à-vis the obligation to pay taxes and stated that its share of taxes should instead be based on the market value of the supermarket. Two of the centre's other tenants paid realty taxes on a proportional value basis. The lease was entered into in the context of recent changes to the legislation relating to assessment of property taxes, which allowed for taxes to be calculated on a square footage or value basis.
The Court agreed with the Plaintiffs' position. It noted that there was little dispute between the parties about the facts of the case. Rather, the dispute related to the parties' subjective interpretation of the lease. In interpreting the meaning of the words "share of the taxes assessed against or attributable to the centre", the Court had regard to the agreement as a whole and the circumstances surrounding its execution. It noted that while determining taxes owing based on market value was commercially reasonable, there was no mechanism in the lease to make that calculation, whereas square footage could easily be used. The Court would not have granted rectification of the agreement if it had concluded that the lease did not provide for proportional sharing of taxes based on square footage.

STMicroelectronics, Inc. v. Matrox Graphics Inc. and Hewlett-Packard France, Quebec Court of Appeal, December 18, 2007
Breach of Contract - Breach of Warranty - Enforcement of Jurisdiction Clause - Ambiguous Terms
Isabelle Desharnais for Hewlett-Packard France
HP France commenced an action in Montreal against a graphics card manufacturer (Matrox) alleging that the cards supplied by Matrox to HP France were defective. The suit claims damages of over $20,000,000. Matrox responded to the lawsuit by calling on the warranty on the cards provided by STMicroelectronics. STMicroelectronics applied to the Quebec Superior Court for dismissal of the warranty action because the Purchase Orders issued to Matrox for the relevant cards provided that all claims should be made before the courts in Texas. The Superior Court dismissed this request and STMicroelectronics appealed. The Court of Appeal's lengthy decision reviews in detail the conditions for the formation of a contract, rules of interpretation of ambiguous provisions, and jurisdiction clauses. The appeal was dismissed. BLG contested STMicroelectronics' appeal on behalf of HP France, since it was advantageous for HP France to have STMicroelectronics remain as a party to the action.

McLaine v. London Life Insurance Company et al., Ontario Superior Court of Justice, Divisional Court, December 18, 2007
Class Actions - Certification - Standard of Review
Marty Sclisizzi, Freya Kristjanson and Heather Pessione for the Bank of Nova Scotia, Scotia Mortgage Corporation and Bank of Montreal
This was an appeal by several individuals (all employees, lawyers or clients of an Ottawa law firm) from a decision refusing to certify eight different class actions in which the Plaintiffs alleged that the financial institution Defendants had misinterpreted standard mortgage terms relating to annual payment on account of principal or the partial prepayment right and the early mortgage discharge provision. The court of first instance found that the Plaintiffs had failed to meet any part of the test under s. 5(1) of the Class Proceedings Act, S.O. 1992, c. 6 (the "CPA"). While the types of provisions were common to the financial institution Defendants' standard form mortgages, the particular provision language was different in each case. Similar proceedings had already been commenced and certified by consent in three unrelated actions. The principal of the law firm, Mr. Farah, had encouraged all of these parties to commence their actions. The Defendants argued that there would be no actions had Mr. Farrah not suggested them, and that certification would result in much increased time, complexity and cost in order to trace viable claimants such that the decision to deny certification was justifiable.
The first issue was the applicable standard of review, which the Appellants argued was correctness and the Respondents argued required some deference, relying on Moyes v. Fortune Financial Corp. The Court agreed with the Respondents. It then went on to consider whether it was proper to have heard and determined all eight proceedings at the same time. The Court found that it was appropriate given that the same type of breach of contract was alleged, despite the factual differences between the cases. The Court also approved of the judge's criticisms of the involvement of Mr. Farah and his associate in getting the actions off the ground, finding that this was an important factor in deciding whether the claims would meet s. 5(1) of the CPA. Finally, the Court agreed that the specific requirements of s. 5(1) of the CPA had not been met, in that the claims advanced no cause of action, the claimants did not fall within an identifiable class, the claims did not involve sufficiently common issues, class proceedings were not the preferable way to determine the common issues, and that the representative plaintiffs were inappropriate. The fact that there was no workable litigation plan was a problem, and the fact that the causes of action were based on implied terms in many different mortgages was also an important factor in the certification denial, since whether or not the terms alleged could be implied is very dependent on each Plaintiff's individual circumstances. The Divisional Court made its decision despite the release after the appeal was argued of Cassano v. The Toronto-Dominion Bank certifying a class action with respect to claims based on VISA card charges. It distinguished that decision on the basis that only one bank was named and the claim related to a specific set of foreign exchange transactions that could be easily identified.

Bistany v. Registrar, Real Estate and Business Brokers Act, Ontario Superior Court of Justice, Divisional Court, December 17, 2007
Real Estate and Business Brokers Act - Revocation of Licence - Real Estate Broker
Freya Kristjanson for the Registrar
This was an appeal of the Licence Appeal Tribunal's revocation of Mr. Bistany's registration as a real estate broker on the grounds that he could not be financially responsible for the business and on reasonable grounds to believe that he would not conduct his business with the required honesty and integrity. Mr. Bistany was an undischarged bankrupt and had been convicted of one count of fraud and another of obstructing a person performing an investigation, offences under the Real Estate and Business Brokers Act. These convictions were under appeal but the tribunal refused to stay the appeal of the registration revocation pending the outcome of the offence proceedings. The propriety of that decision was the main issue on appeal to the Divisional Court.
The Court held that the tribunal had the discretion to continue with the appeal despite the outstanding offence proceedings and refused to interfere with that discretion, it having been exercised after giving Mr. Bistany a chance to present argument on the point. As for the merits of the revocation, Mr. Bistany had presented ample evidence to contest that decision and the tribunal concluded that revocation of his licence was appropriate. The Court saw no reason to disturb the decision and the appeal was dismissed.

Good Life Corp. v. Hazeldean Properties Inc., Ontario Superior Court of Justice, December 17, 2007
Landlord and Tenant - Parking Covenant - Access to Parking
Mary Sclisizzi and Brendan Wong for the Respondent Bank of Nova Scotia
This action involved the interpretation of non-exclusive parking space provisions in leases granted by Hazeldean Properties to certain tenants. The Bank of Nova Scotia ("BNS") was another tenant in the complex at issue that was granted exclusive use of a number of parking spaces, reducing the number of spaces available to the other tenants, and had put up signage to that effect. Good Life sought declaratory relief relating to its parking rights and injunctive relief requiring removal of the exclusive parking space signage. The Good Life lease parking covenant stated that Good Life "shall have unlimited access to Parking at the Property for its members and staff at no extra cost. The Landlord [Hazeldean Properties] shall not reduce the available spaces for Tenant parking available at the commencement of the Lease…". Good Life argued that "unlimited access to Parking" meant unlimited access to all parking spaces at the Property. It also claimed that it now needed access to 200 of the property's 275 total parking spaces.
The Court first found that Good Life's position that it needed 200 spaces lacked commercial reality and found that access in the context of the lease should be interpreted as access to the property generally rather than guaranteeing access to a certain number of spaces. The Court noted that there was nothing in the Good Life lease setting out its parking needs specifically, which it could have done in the negotiation stages, and that parking rights are normally licence rights rather than any interest in real property. It held that Hazeldean Properties had not breached its covenant because Good Life did have "access" to parking spaces despite the fact that some were for the exclusive use of other tenants. The Court noted that it need not comment on the application for injunctive relief given its decision on the initial issue, but did comment that injunctive relief would not be appropriate against BNS and another tenant with exclusive parking rights because it would impair Hazeldean Properties' contractual relationship with those other tenants and impose far greater a burden on BNS and the other tenant's rights than could justify the corresponding benefit to Good Life. A subsidiary application claiming that Hazeldean Properties had not provided "adequate" parking was also dismissed.

Oz Merchandising Inc. v. Canadian Professional Soccer League, Eastern Ontario District Soccer Association, and Ontario Soccer Association et al., Ontario Superior Court of Justice, December 13, 2007
Costs - Substantial Indemnity Costs
Jane Bachynski and Nadia Effendi for Eastern Ontario District Soccer Association and Ontario Soccer Association
Following from the BLG victory in this case reported in the December 2007 edition of BLG On Its Feet, this was a decision regarding the costs payable to the successful parties on an appeal of an order striking pleadings. BLG argued that its clients were entitled to substantial indemnity costs and for the costs ordered at a prior motion that had yet to be paid. The Appellant had argued that only partial indemnity costs were appropriate on the basis that success on the appeal was divided and sought a fixed costs award of $2,500 without citing any authority. The Court indicated that it must look at what is reasonable in the circumstances and to the expectations of the parties in fixing a costs award. It found that the Respondents had been entirely successful and that the appeal had been complex. As such, it awarded a lump sum only slightly less than the amount of substantial indemnity costs BLG was seeking.

Baksh v. Registrar, Real Estate and Business Brokers Act, Ontario Superior Court of Justice, Divisional Court, December 11, 2007
Real Estate and Business Brokers Act - Revocation of Licence - Real Estate Salesperson
Freya Kristjanson for the Registrar
The Appellant's registration as a real estate salesperson was revoked in January 2007 on reasonable grounds to suspect that he would not carry out his duties with the required integrity and honesty. The Appellant had failed to disclose a beneficial interest to the parties involved in three separate transactions.
The appeal was dismissed. While the tribunal had erred in referring to a section of the Real Estate and Business Brokers Act that was not in force at the time of the Appellant's conduct, his conduct nevertheless violated the similar section applicable at the time. The Court found that the tribunal's decision was reasonable and it had considered all relevant evidence. The Registrar was awarded its costs.

Yeung v. Kay, Ontario Superior Court of Justice, December 10, 2007
Health Care Consent Act - Consent and Capacity Board - Meaning of "Capacity"
Kirsten Crain for Dr. Kay
This was an appeal by Mr. Yeung of a decision of the Consent and Capacity Board under the Health Care Consent Act finding him incapable of making treatment decisions regarding the administration of antipsychotic medication. The Supreme Court of Canada had analyzed what "capacity" meant in this context in the 2003 decision of Starson v. Swayze and held that it involves two criteria: (1) a cognitive ability to process, retain and understand the information regarding treatment, and (2) the ability to appreciate the consequences of treatment or lack of treatment. The parties agreed that the standard of review for the Board's decision was one of correctness. However, the Appellant argued that the Board had erred in having referred to Mr. Yeung's "insight" into his condition, and that he need only recognize the possibility that he was suffering from a mental illness to have the necessary capacity to make relevant treatment decisions. The Court found that this challenge was based on an isolated aspect of the Board's decision. Rather, the whole of the language in the decision needed to be considered and the Court found that it evidenced the application of the Supreme Court of Canada's criteria. It held that the Board's decision was not only reasonable but was most appropriate in the circumstances and dismissed the appeal.

Sale of Intercompany Claims by Calpine Canada Debtors
On December 10, 2007 Calpine Canada Energy Limited and certain of its subsidiaries that were debtors in Calpine Canada’s CCAA proceedings before the Court of Queen’s Bench of Alberta (the “Canadian Debtors”) completed a sale of approximately US$240,000,000 of intercompany claims held by the Canadian Debtors against certain U.S. Calpine affiliates that were debtors in Calpine Corporation’s Chapter 11 proceedings before the United States Bankruptcy Court for the Southern District of New York. The intercompany claims were sold or assigned by the Canadian Debtors to Lehman Brothers Inc., and then immediately sold by Lehman Brothers to certain eligible purchasers. The intercompany claims were sold pursuant to an Order of the Court obtained by the Canadian Debtors in the CCAA proceedings that approved a unique sale process for the sale of these assets.

Ernst & Young Inc. was the Court-appointed Monitor of the Canadian Debtors (Murray McDonald and Neil Narfason), represented by Pat McCarthy, Q.C. and Josef Krüger of Borden Ladner Gervais LLP.

Ponte v. WSIAB, WSIB, July 6, 2007
Employment Law - Termination for Cause - Attendance - Workplace Injury - Re-employment Obligations - Workplace Safety and Insurance Act
Carole Hoglund for the employer, National Grocers Co. Ltd.
National Grocers terminated the claimant, Ponte's, employment for cause, being her poor attendance. She then alleged that she had been injured at work and that National Grocers had beached its re-employment obligations under s. 41 of the Workplace Safety and Insurance Act as a result of her termination. National Grocers argued that Ponte's poor attendance pre-dated her work-related accident, her continued poor attendance after her work-related injury was not caused by the injury, and her employment was terminated in accordance with progressive discipline. Ponte claimed that her attendance related to sleep problems due to medication she was taking as a result of her injury. She also argued that increased disciplinary action occurred after her work-related injury. The adjudicator ruled in favour of National Grocery, finding that it did not breach its s. 41 obligations.

Tethys Petroleum Limited Announces IPO
On June 27, 2007 – Toronto, Canada – Tethys Petroleum Limited (“Tethys”) announced that it completed its initial public offering of 18,181,818 Ordinary Shares for gross proceeds of US$50 million. The Ordinary Shares are listed on the Toronto Stock Exchange under the symbol “TPL”. The offering was conducted by a syndicate of agents led by Jennings Capital Inc. and which included Tristone Capital Inc. and Haywood Securities Inc. Tethys is focused on oil and gas exploration and production activities in Central Asia with activities currently in the Republic of Kazakhstan and more recently the Republic of Tajikistan. In Kazakhstan its current development and exploration assets are located close to the Aral Sea in western Kazakhstan adjacent to the prolific Pre-Caspian basin. In Tajikistan Tethys is currently negotiating a Production Sharing Contract for the Kulob Area in the south-west of the country. The BLG team included Philippe Tardif, Anthony Rasoulis, Robyn Bourgeois (corporate/securities), Joshua Cinnamon and Elinore Richardson (tax).

ICBC Sells its interest in the Central City Project
Surrey City Centre Mall Ltd., a wholly owned subsidiary of the Insurance Corporation of British Columbia, sold its interest in the Central City project, in Surrey, British Columbia to Surrey CC Properties Inc., effective August 1, 2007. The purchase price was well in excess of $200,000,000, making it the largest single asset transaction in British Columbia history. Central City is a mixed use development, comprising a 490,000 square foot retail mall, 570,000 square foot, 25 storey office tower and the Surrey campus of Simon Fraser University, which is located in air space parcels owned by the University and which was not included in the transaction. Surrey Central City Mall Ltd. was represented by David Longcroft, Shelley Munro, Vivian Tang and Jeff Thomas of the Vancouver office of Borden Ladner Gervais LLP.

Desco Energy Ltd and Arcan Resources Ltd Amalgamate
Desco Energy Ltd., a TSX Venture exchange listed oil and gas exploration and development company, and Arcan Resources Ltd. amalgamated on January 1, 2007. The newly merged company will continue under the name Arcan Resources Ltd. The transaction, which was valued at approximately $90 million, constituted a reverse take-over of Desco by Arcan pursuant to the policies of the TSXV. Desco was represented by BLG with a team that included Bill Guinan, Steve Pearson, Anthony Rasoulis, Louise Lee and Jim Williams.

TML Acquisition Ltd Acquires Tiberon Minerals
On January 4, 2007, TML Acquisition Ltd., a corporation organized by Dragon Capital Management Ltd., offered to acquire all of the issued and outstanding common shares of Tiberon Minerals Ltd. in a supported take-over bid for a total value of $275.6 million. Tiberon Minerals is a mineral exploration company with a tungsten mining project located in Nui Phoa Vietnam. The Nui Phoa mine is the largest source of tungsten in the world outside of China. Dragon Capital Management is a Vietnam-based investment manager that manages over US $1.7 billion in assets. BLG's relationship with Dragon Capital developed several years ago as a result of a referral from Freshfields. This take-over transaction is notable in that upon the expiry of the offer on February 9, 2007, Dragon Capital had taken-up approximately 93.2% of the outstanding common shares of Tiberon Minerals. This successful result has enabled Dragon Capital to immediately proceed with a statutory compulsory acquisition transaction to acquire the remaining publicly-held Tiberon Shares. This transaction also involved the creation of an extensive international tax structure comprising of at least 10 separate entities in seven different jurisdictions. The international tax structure was developed and implemented by BLG with the assistance of local counsel in the various jurisdictions. The BLG team included Frank Allen, Gord Raman, Elinore Richardson, Larrisa Tkachenko, Adam Fanaki, Terence Lui, Dyana McLellan, Paul Simon, James Mathers, Shannon Rattray, Andrew Powers, Alexandra Fraser and Johanne Thomas.

Sentry Select 40 split Income Trust IPO
On January 5, 2007, Sentry Select 40 split Income Trust completed an IPO of a structured product (closed-end investment fund) with a split security structure for total proceeds of $96 million. BLG acted for the issuer and its manager, Sentry Select Capital Corp with a team that included Paul Findlay, Michael DeCosimo and Ruth Liu

Stanley Canada Corporation Acquires Global Automated Teller Machines Inc.
On January 11, 2007, Stanley Canada Corporation acquired the assets of Global Automated Teller Machines Inc. BLG represented the seller with a team that included Terry Fontana, Jonathan Dorval and Neil Hazan

Brenntag Canada Inc. acquires St. Lawrence Chemical Inc.
On January 19, 2007, Brenntag Canada Inc. acquired St. Lawrence Chemical Inc. BLG acted for St. Lawrence Chemical and its shareholders with a team including Peter Casey, Terry Fontana, Jonathan Dorval, Neil Hazan, Adam Fanaki, David Faye, Rick Coburn, Caroline Émond and Fabien Fourmanoit.

G2 Resources Inc. Acquires Cannon Oil and Gas
On January 26, 2007, G2 Resources Inc. completed the acquisition of Cannon Oil and Gas Ltd., a TSXV listed oil and gas exploration and development company, by way of a take-over bid for a purchase price of approximately $30 million. Cannon was represented by BLG with a team that included Don Edwards, Anthony Rasoulis, Melissa Smith and Matt Webster.

Umbata Falls Limited Partnership Completes Project Financing for Hydroelectric Facility
On January 31, 2007, Umbata Falls Limited Partnership completed a $52 million secured project financing from Bank of Montreal. Proceeds of the credit facilities will be used by the Umbata Falls Limited Partnership, a limited partnership formed by Innergex II Inc. and the Ojibways of the Pic River First Nation, to assist with the construction of the Umbata Falls Hydroelectric Project, a run-of-the-river 23.6 megawatt hydroelectric facility located at Umbata Falls on the White River, approximately 40 km southeast of the town of Marathon, Ontario. BLG acted as counsel to Umbata Falls Limited Partnership with a team that included Linda Bertoldi, Bruce Fowler, Paul McCarten, Gus Karantzoulis and Domenic Damiani.

Subsidiary of Navigant Consulting Ltd. Acquires Leclerc Juricomptables Inc.
On January 31, 2007, 4388224 Canada Inc., a subsidiary of Navigant Consulting Ltd. completed its acquisition of Leclerc Juricomptables Inc. BLG represented both Leclerc and the Vendors. The BLG team included André Dufour, Sébastien Berthelet, Neil Hazan and Angela Maffei.

Aecon Group Inc. Acquires The Karson Group
On February 1, 2007, Aecon Group Inc., Canada's largest publicly traded construction and infrastructure development company, completed the acquisition of all issued and outstanding shares of West Carleton Sand & Gravel Inc. and its subsidiaries which are also known as The Karson Group, for a total value of approximately $37 million. The Karson Group is one of the largest aggregate, asphalt and civil construction companies in Eastern Ontario. Aecon Group Inc. was represented by BLG, whose team included Paul Mingay, Larissa Tkachenko, Marc Babinski, Rick Coburn, Joanne Poljanowski, Sybil Johnson-Abbott, Jason Aurini and Iwona Albrecht.

TH Energy Sells Water Heater Rental Business
On February 8, 2007, Toronto Hydro Energy Services Inc. (TH Energy) completed a transaction with the Consumers’ Waterheater Income Fund to sell the water heater rental business of TH Energy, consisting of approximately 86,000 electric and nature gas water heaters, for approximately $40.9 million. TH Energy was assisted by Michael Shadbolt, Anna Naud and Stephen Fyfe.

Cenveo Corporate Inc.
Fred Enns is acting as Canadian counsel to Cenveo, Inc. and Cenveo Corporation, a Delaware corporation and wholly owned subsidiary of Cenveo, Inc. Cenveo Corporation entered into an agreement on February 27, 2007 with TD Securities, to underwrite on a bought deal basis a private placement representing an aggregate issue amount of over $80.5 million. The transaction is subject to customary conditions for such transactions and is scheduled to close on March 13, 2007.

UE Waterheater Income Fund Acquires VOXCOM Income Fund
On June 22, 2007, an indirect wholly-owned subsidiary of UE Waterheater Income Fund (“UE Waterheater”) completed its acquisition of VOXCOM Income Fund (“VOXCOM”).

UE Waterheater and VOXCOM jointly announced on April 16, 2007 that they had entered into a Support Agreement under which UE Waterheater agreed that it would acquire all of the issued and outstanding units of VOXCOM at a purchase price of $13.25 cash per VOXCOM unit. On June 8, 2007, UE Waterheater announced that holders of approximately 93.7% of the VOXCOM units had accepted the UE Waterheater offer. UE Waterheater completed a compulsory acquisition of the remaining outstanding VOXCOM units on June 22, 2007.

UE Waterheater indirectly holds, through UE Waterheater Operating Trust, the water heater rental business of Union Energy Limited Partnership (“Union Energy LP”) and its related commercial activities as well as the security monitoring business of Protectron Limited Partnership and VOXCOM Incorporated.

BLG assisted UE Waterheater on the transaction, with a team that included Frank Callaghan, Frank Allen and Paul Simon (corporate/securities); Larissa Tkachenko (tax); Adam Fanaki (competition); Stephen Redican and Gus Karantzoulis (lending/financial services)

UE Waterheater Income Fund and UE Waterheater Operating Trust Complete Sale of Assets to 3216444 Nova Scotia Company
On June 28, 2007, UE Waterheater Income Fund (“UE Waterheater”) and UE Waterheater Operating Trust (the “Trust”) completed the sale of assets to 3216444 Nova Scotia Company (the “Purchaser”). These assets included the water heater rental business of Union Energy Limited Partnership (“Union Energy LP”) and its related commercial activities, as well as the security monitoring business of Protectron Limited Partnership and VOXCOM Incorporated.

On April 16, 2007 a press release was issued announcing that UE Waterheater, the Trust, the Purchaser and certain affiliates of the Purchaser had entered into a Purchase Agreement, under which UE Waterheater and the Trust agreed to sell certain assets of UE Waterheater and substantially all of the assets of the Trust to the Purchaser for a total acquisition cost of approximately $1.74 billion.

The transaction was completed on June 28, 2007, whereby UE Waterheater unitholders received $23.00 in cash in connection with the redemption of all the issued and outstanding trust units of UE Waterheater. In connection with the closing of the transaction, the Trust received sufficient funds to defease and redeem the 4.145% Series 1 Senior Secured Notes and the 4.722% Series 2 Senior Secured Notes of the Trust.

BLG assisted UE Waterheater and the Trust on the transaction, with a team that included Frank Callaghan, Frank Allen and Paul Simon (corporate/securities); Larissa Tkachenko (tax); Adam Fanaki (competition); Stephen Redican and Gus Karantzoulis (lending/financial services).

Dana Gas Acquires Centurion Energy
On January 10, 2007 Dana Gas PJSC successfully completed the acquisition of Centurion Energy International Inc. by way of a plan of arrangement effected under the Business Corporations Act (Alberta). Pursuant to the terms of the acquisition, Giza Acquisition Inc., a subsidiary of Dana Gas, acquired all the issued and outstanding common shares of Centurion Energy for $12 per share, for an aggregate cash consideration of $1.14 billion.
Centurion Energy is an oil and gas exploration and production company based in Calgary, with operations principally located in the Egyptian Nile Delta region. Dana Gas is the first regional private-sector gas company in the Middle East and is listed on the Abu Dhabi Stock Market. The acquisition of Centurion Energy provides Dana Gas with a strategic platform from which to grow its activities in natural gas exploration and production throughout the Middle East Region. Dana Gas's financial advisors were Citigroup Global Markets.
Centurion Energy was represented by Borden Ladner Gervais LLP with a team that included Derrick Armstrong, Edward Tapuska, Gillain Malfair, Shane Stevenson, Robyn Bourgeois and Jonathan Doll (corporate/securities); Lindsay Holmes (tax) and David Madsen (litigation).

Golden Gate Capital Acquires Sierra Systems
On January 5, 2007, Golden Gate Capital, a San Francisco-based private-equity firm, completed its acquisition of Vancouver-based Sierra Systems Group Inc. for an undisclosed amount. The acquisition was completed through a plan of arrangement in which Golden Gate Capital acquired, through its affiliate, Trinity International Holdings Ltd., all the shares of Sierra Systems in an all-cash transaction at a price of $9.25 per share. Financing for the acquisition and for general working capital was provided by Wells Fargo Financial Corporation Canada, as first lien lender, and Styx Partners, L.P., an affiliate of Cerberus Capital Management LP, as second lien lender.
Borden Ladner Gervais LLP acted as Canadian counsel to Golden Gate Capital with a team that included Paul Mingay and Kathleen Keilty (corporate and securities); Howard Silverman and Ken Andersen (banking); Larissa Tkachenko and Eva Krasa (tax); Stephen Antle (litigation); Colleen Spring-Zimmerman (intellectual property) and Adam Fanaki (competition).

Wind Point Partners Acquires Santa Maria Foods
On January 26, 2007 Wind Point Partners VI, L.P., completed the acquisition of all the issued and outstanding shares of Santa Maria Foods Corporation and its affiliates for an undisclosed amount. Wind Point Partners VI, L.P. is a private equity investment firm based in Chicago, Illinois that manages more than $2 billion in commitments from pension funds, endowments and individuals. Santa Maria Foods Corporation is a Toronto-based manufacturer, marketer and distributor of Italian-style deli meats and a leading provider of imported Italian specialty foods. The senior secured facilities were provided by a syndicate of lenders including The Bank of Nova Scotia as administrative agent, lead arranger and hedge advisor, CIT Financial Limited as syndication agent and GE Canada Financing Holding Company as documentation agent. The syndicate was represented by Borden Ladner Gervais LLP, whose team included James Mathers, Bill Robertson, Will Wallace, Paul McCarten, Angela Lin, Andrew Collingwood, Claudine Millette, Pierre Cote and others from BLG's Toronto, Montreal, Calgary and Vancouver offices.

GreenField Ethanol Completes $405M Senior Secured Credit Facilities
On December 28, 2006, GreenField Ethanol Inc. (formerly known as Commercial Alcohols Inc.) completed $405 million senior secured credit facilities with a syndicate of lenders in which Royal Bank of Canada and The Bank of Nova Scotia acted as co-lead arrangers and Royal Bank of Canada acted as administrative agent.
The senior credit facilities refinanced GreenField's existing credit facilities and provided additional financing to assist with the completion this month of GreenField's new 140 million litre per year fuel ethanol plant in Varennes, Quebec, with the proposed construction of two new 200 million litre per year fuel ethanol plants in Hensall, Ontario and Johnstown, Ontario, and with other capital projects.
GreenField also completed a $60 million unsecured subordinated financing provided by Fonds de Solidarité des Travailleurs du Québec (F.T.Q.), a Quebec based development capital fund, to assist with the construction of the fuel ethanol plant in Varennes, Quebec.
GreenField was represented by Malcolm West, vice-president, corporate finance, Donald Pierce, executive vice-president, and Brian Keith, vice-president, general counsel and secretary. Borden Ladner Gervais LLP acted as counsel to GreenField with a team led by Andrew Harrison and including Bruce Fowler, Paul McCarten, Glen Bowman, Alfred Page, Janette Pantry, Gus Karantzoulis and Leonard Lee.

Faubourg Boisbriand Acquires Retail Complex
Faubourg Boisbriand Shopping Centre Holdings Inc. acquired "Faubourg Boisbriand," a 1.2 million square foot lifestyle-based retail complex, currently being developed in Boisbriand, Quebec, on July 7, 2006. The purchaser is a venture among Kimco Realty Corporation, Cherokee Partners and Sterling Centrecorp. Acting for the purchaser was Davies Ward Phillips & Vineberg LLP with a team including Hillel Rosen, Joseph Jarjour, Rhonda Rudick (tax) and Nicolas Cloutier (zoning). Acting for the vendor was Yves Dubois of Borden Ladner Gervais LLP.
February 14, 2007 marked the date of the initial drawdown under a $165 million construction credit facility made available to Faubourg Boisbriand Shopping Centre Holdings Inc. by a syndicate of banks consisting of The Bank of Nova Scotia, also as administration agent for the lenders, Royal Bank of Canada, Bank of America National Association and West LB AG, Toronto Branch. A portion of the first drawdown under the loan was used to repay a $43 million interim credit facility made available to the borrowers in the fall of 2006 by HSBC Bank Canada.

Broadcasting Licence Fees Rejected by Federal Court
A decision by Justice Michel Shore of the Federal Court on December 14, 2006 declared that Part II Broadcasting licence fees levied by the CRTC on broadcasters and distributors (Cable and DTH) are in fact illegal taxes and beyond the powers conferred on the CRTC under the Broadcasting Act. As a result of Canadian Association of Broadcasters et al. v. Her Majesty the Queen and Vidéotron Ltée et al. v. Her Majesty the Queen, the broadcasters will no longer have to pay these fees, which, in recent years, have amounted to more than $100 million. Counsel acting on behalf of Vidéotron Ltée and CF Cable TV Inc. were Daniel Urbas and Carl J. Souquet of Borden Ladner Gervais LLP.

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BLG Deals and Suits 2006

Canada Housing Trust™ No. 1’s $8.125B Public Offering
On December 21, 2006, Canada Housing Trust™ No. 1, a special purpose securitization trust, issued 3.95 per cent Canada Mortgage Bonds, Series 15 in an aggregate principal amount of $8.125 billion, which were provided with Canada’s sovereign guarantee through Canada Mortgage and Housing Corp. (CMHC).
CMHC was represented in-house by Reem Hindieh, Louise Michel and Marc-André Sirois, who were assisted by Borden Ladner Gervais LLP, special counsel to the trust, with a team that included Rosalind Morrow, Adam Segal and Emma Miller (securities and derivatives), Stephen Redican, Gus Karantzoulis and Terence Lui (banking and structured finance) and Larissa Tkachenko (tax) in Toronto, and Daniel Gendron (civil) in Montreal.

NAEP Completes IPO
North American Energy Partners Inc. (NAEP) and certain selling shareholders completed a cross-border initial public offering and a secondary offering of common shares for gross proceeds of approximately $255 million. The shares of NAEP are listed on the New York Stock Exchange and the Toronto Stock Exchange.
The offering was underwritten by a syndicate of underwriters consisting of Credit Suisse Securities (USA) LLC, UBS Securities LLC, Jeffries & Company, Inc., CIBC World Markets Corp., Simmons & Company International, Stephens Inc., Peters & Co. Limited and the Canadian affiliates of certain of the underwriters.
NAEP is one of the largest providers of mining and site preparation, piling and pipeline services in western Canada. Borden Ladner Gervais LLP provided the external legal advice to NAEP with respect to matters of Canadian law with a team that included Frank Callaghan, Philippe Tardif, Gordon Raman, Larissa Tkachenko, Emma Miller, Terence Lui, Habeeb Syed and Kinga Grudzinski and matters with respect to US law were provided by Bracewell & Giuliani LLP with a team that included Gary Orloff, Troy Harder and Shanna Kuzdzal.

Chartwell Completes $282.5M Financing
On November 28, 2006, Chartwell Seniors Housing Real Estate Investment Trust completed a public offering of 3,676,475 trust units at a price of $13.60 per unit for aggregate gross proceeds of approximately $50 million and $125 million aggregate principal amount of 6.0 per cent convertible unsecured subordinated debentures due December 1, 2011 to a syndicate of underwriters led by RBC Dominion Securities Inc. On November 30, 2007, the underwriters exercised the over-allotment option in respect of 551,470 additional trust units at a price of $13.60 per unit for additional gross proceeds to Chartwell of approximately $7.5 million.
The transaction was notable in that the final prospectus was filed on October 31, 2006, just hours before the federal Minister of Finance announced drastic changes to the taxation of income trusts. This threw the market into turmoil and, ultimately, led to the Chartwell offering being downsized and repriced. It also led to the need to carry out an $80 million bridge financing facility with Royal Bank of Canada on a convertible debenture basis on November 9, 2006 in order to fund a previously committed acquisition, which was to have been funded from the closing of the public offering. Similarly, it was also necessary for Chartwell to complete a private placement of 7,352,941 trust units at a price of $13.60 per unit on November 30, 2006 for total gross proceeds of approximately $100 million to make up for the reduced size of the public offering. As a result of the completion of the offering of trust units and debentures, the exercise of the over-allotment option and the completion of the private placement, the aggregate gross proceeds of the financing transactions was approximately $282.5 million.
Chartwell was represented by Borden Ladner Gervais LLP with a team led by Paul A.D. Mingay and including Gordon G. Raman, Dyana McLellan, Paul A. Simon, Alexandria Sjöman (corporate/securities), Craig J. Webster and Elinore J. Richardson (tax), and Bruce Fowler and Dan McNamara (financial services).

Agnico-Eagle Mines Amends Credit Facility
On October 17, 2006, Agnico-Eagle Mines Limited (the Company) amended its existing credit facility with a syndicate of lenders, The Bank of Nova Scotia, as co-arranger, administrative agent and technical agent, Société Générale (Canada), as co-arranger and syndication agent, N M Rothschild & Sons Limited, as co-arranger and co-documentation agent, and The Toronto-Dominion Bank, as co-documentation agent (collectively, the Lenders).
The amount of the credit facility was increased from US$150 million to US$300 million and the term of the credit facility was extended by two years to December 2011. The company may, with consent of the lenders, extend the term of the credit facility for three additional one-year terms to December 2014. The security package under the credit facility was expanded to include direct security on the Lapa mine project in Quebec and security from the direct Swedish subsidiary of the company that indirectly owns the Kittila mine project in Finland.
Borden Ladner Gervais LLP acted as counsel to the lenders with a team led by Howard S. Silverman, which included Gus Karantzoulis, Claudine Millette, Catherine Guertin and Eric Savoie. Roschier Advokatbyra AB acted as Swedish and Finnish counsel to the lenders with a team that included Gunnar Westerlund, Charlotta Furuhjelm and Carin Eriksson.

GreenField Ethanol Completes $130M Credit Facility
On September 26, 2006, Commercial Alcohols Inc. (which has since changed its name to GreenField Ethanol Inc.) completed a $130 million senior secured credit facility with a syndicate of lenders in which The Bank of Nova Scotia and Royal Bank of Canada acted as co-lead arrangers and the Bank of Nova Scotia acted as administrative agent.
The credit facility continues GreenField’s existing credit facility and provides additional financing to assist with the construction of GreenField’s 120 million litre per year fuel ethanol plant in Varennes, Quebec and with other capital projects, including preliminary development of two further ethanol plants in Ontario. GreenField also obtained additional senior subordinated financing from Royal Bank of Canada, through its division RBC Capital Partners.
The senior lending syndicate was represented by Borden Ladner Gervais LLP, with a team that included James Mathers, Pierre Côté and Stephen Redican.

Hilton Canada Sells its Last Five Hotels in Canada
On September 19, 2006, Hilton Canada Co. completed the sale of the last five hotels it owned in Canada for approximately $243 million. Northstar Hospitality Limited Partnership, a partnership comprised of Cadim Fonds Inc., Westmont Hospitality Group and Regime de Rentes du Mouvement Desjardins, purchased the Hilton Toronto Downtown, Hilton Toronto Airport and the Hilton Montreal Dorval hotels for an aggregate purchase price of approximately $180 million. InnVest Real Estate Investment Trust purchased the Hilton Quebec City and the Hilton Saint John hotels for an aggregate purchase price of approximately $63 million. All five hotels will continue to be managed by Hilton Canada Co. Acquisition financing was provided to each of the purchasers by GE Real Estate Financing Holding Company.
Hilton Canada Co. was also advised by Ian Taylor and Caroline Emond of Borden Ladner Gervais LLP in respect of the Hilton Quebec City hotel.

Chartwell Seniors Housing Completes Public Offering and Entry into the US
On May 9, 2006, Chartwell Seniors Housing Real Estate Investment Trust (the REIT) completed a public offering of 13,310,000 trust units at a price of $13.90 per unit for gross proceeds of $185,009,000. The offering was completed on a bought-deal basis and was underwritten by a syndicate of underwriters led by RBC Dominion Securities Inc. The proceeds of the offering will be used to fund certain acquisitions of seniors housing facilities in the US, Ontario, Quebec and British Columbia, to fund mezzanine loans to Spectrum Seniors Housing Development LP, to fund facility expansion projects and to repay indebtedness outstanding under the REIT's operating facility. The REIT was represented by Borden Ladner Gervais LLP on the offering with a team led by Paul Mingay that included Gordon Raman, Dyana McLellan and Paul Simon (corporate/securities) and Craig Webster (tax).

Bell Aliant Regional Communications Income Fund is Formed; BCE Completes Spin-off of Interest in Bell Aliant Regional Communications Income Fund to Shareholders
On July 7, 2006, BCE, Bell Canada and Aliant formed Bell Aliant Regional Communications Income Fund, the largest business trust in Canada with an enterprise value of approximately $10 billion. As part of the transaction, Bell Canada's wireline telecommunications operations in its regional territories in Ontario and Quebec were combined with Aliant's wireline telecommunications operations in Atlantic Canada, its information technology operation and other operations, to form the operating business of the fund, and the fund acquired BCE's 63.4 per cent indirect interest in Télébec, Limited Partnership and NorthernTel, Limited Partnership, which is exchangeable for a 63.4 per cent interest in the Bell Nordiq Income Fund. In addition, Bell Canada acquired Aliant Mobility's wireless operations and Aliant's DownEast Communications retail outlets. Approximately $1.25 billion of Bell Canada debt was effectively transferred to the fund. In connection with this transaction, Bell Canada and the fund entered into a series of outsourcing and commercial agreements, pursuant to which Bell Canada will provide services to support the operations of the fund in Ontario and Quebec, and the fund will provide services to support Bell Canada's wireless operations in Atlantic Canada. The fund's telecommunications operations extend through the four Atlantic provinces and Ontario and Quebec, with more than 3.4 million local access lines and more than 400,000 high-speed Internet subscribers on a consolidated basis. On July 7, 2006, an operating subsidiary of the fund also entered into a $3.5 billion credit facility with a syndicate of financial institutions co-led by The Bank of Nova Scotia and Royal Bank of Canada.On July 10, 2006, BCE completed a plan of arrangement pursuant to which it distributed an approximate 28.8 per cent interest in the fund to its shareholders. Borden Ladner Gervais LLP acted for the co-lead arrangers and the syndicate of lenders that provided the new $3.5 billion credit facilities, with a team comprised of Joanne Foot, Kenneth Atlas and Will Wallace.

Pope & Talbot Completes $325M Refinancing
On June 28, 2006, Pope & Talbot Ltd. completed a refinancing of its existing debt. The new syndicated credit facility was arranged by Lehman Brothers Inc., with Lehman Commercial Paper Inc acting as syndication agent, Wells Fargo Financial Corporation Canada acting as administration agent, and Ableco Finance LLC acting as collateral agent. The credit facility is made up of a $75 million operating facility and a $250 million term facility, which paid out the existing syndicated credit facilities led by The Toronto-Dominion Bank and a receivables purchase arrangement with The Toronto-Dominion Bank, as well as provided for increased operating funds. Pope & Talbot Ltd. was represented in Canada by Borden Ladner Gervais LLP in Vancouver, with a team led by Don Bird and including Tim Sehmer, Ken Anderson and Martha Bruce (lending); Mark Lewis (real estate); Bruce Sinclair (tax); Debra Sing (pension); Carleigh Whitman (environmental) and Steven McKoen (securities), and assisted in Toronto by Stephen Redican.

Columbia National Investments Acquires Development Lands from A.J.B. Investments
On June 22, 2006, Columbia National Investments Ltd. acquired from A.J.B. Investments Ltd. a total of 3,285 acres of land on the Sunshine Coast of British Columbia for mixed residential development and mineral and timber extraction. The purchase price was $32 million. The acreage is in three different locations, with 2,174 acres near Sechelt, 803 acres at McNabb Creek and 309 acres at Seaside Park in the Port Mellon area. A.J.B. Investments Ltd. was represented by David Longcroft and Magnus Verbrugge of Borden Ladner Gervais LLP.

Northland Power Income Fund Acquires AES Kingston
On March 23, 2006, Northland Power Income Fund (the Fund) acquired, indirectly, all of the issued and outstanding shares of AES Kingston ULC, the owner of the 50 per cent of the 110 MW Kingston cogeneration facility that the Fund did not previously own, from a subsidiary of The AES Corporation, for approximately US$110 million. The acquisition was financed by the Fund through an offering of subscription receipts to raise gross proceeds of $175,134,000. Upon the closing of the acquisition, the subscription receipts were automatically exchanged for units of the Fund. The offering was underwritten by a syndicate led by CIBC World Markets Inc. that included Scotia Capital Inc., National Bank Financial Inc., BMO Nesbitt Burns Inc., RBC Dominion Securities Inc., Canaccord Capital Corporation and FirstEnergy Capital Corp. The Fund was represented by Borden Ladner Gervais LLP with a team that included Linda Bertoldi, Bruce Fowler, Michael Shadbolt and Meaghan Bethune (corporate/energy), Paul Findlay, Elizabeth Jordan, Andrew Peel and David Pletsch (securities), Stephen Fyfe, Craig Webster and Francesco Gucciardo (tax), Adam Fanaki (competition) and Jeff Mitchell (employment).

Pan Pacific Copper Acquires Regalito Copper
Pan Pacific Copper Co., Ltd. (PPC) has completed its takeover bid for all of the issued and outstanding common shares of Regalito Copper Corp. Regalito’s common shares are listed on the Toronto Stock Exchange and American Stock Exchange. The offer to acquire Regalito’s common shares for cash consideration of US$6 per share was made by PPC Canada Enterprises Corp., a wholly owned subsidiary of PPC, pursuant to a takeover bid circular dated April 3, 2006. By the expiry of PPC’s offer on May 9, 2006, approximately 90 per cent of the issued and outstanding Regalito common shares were deposited to the offer. PPC Canada Enterprises intends to acquire all the outstanding Regalito common shares not tendered to the offer pursuant to compulsory acquisition procedures. The transaction values Regalito at approximately C$151 million. PPC was established in October 2000 by Nippon Mining & Metals and Mitsui Mining & Smelting, and engages in a wide range of copper businesses including the procurement of copper concentrate, the production through tolling arrangement of, and the marketing of products such as, refined copper, precious metals and sulphuric acid. The Regalito special committee was represented by Borden Ladner Gervais LLP with a team that consisted of Ian Webb, Fred Pletcher, Steve McKoen and Graeme Martindale.

TD Bank Financial Group Acquires VFC
TD Bank Financial Group acquired VFC Inc. on April 19, 2006, for $326 million. With its focus on non-prime automotive purchase financing, VFC is one of the largest Canadian-owned indirect consumer finance companies in Canada. TD and VFC announced on February 16, 2006, that they had entered into a Support Agreement under which TD agreed that it would make a takeover bid to purchase all of VFC’s common shares for either $19.50 per share in cash, or in TD common shares, or a combination of cash and TD shares. VFC’s board agree to support the offer. On April 19, 2006, TD announced that holders of over 90 per cent of VFC’s shares had accepted TD’s offer. Pursuant to compulsory acquisition rules, TD acquired the remaining VFC Shares on May 19.The Special Committee of the Board of Directors of VFC was represented by Borden Ladner Gervais LLP with a team comprised of Frank Allen, Frank Callaghan, Paul Simon and Dyana McLellan (corporate/securities) and Eva Krasa (tax).

AutoCanada Income Fund Completes IPO
On May 11, 2006, AutoCanada Income Fund of Edmonton, Alberta, completed its initial public offering of 10,209,500 units for gross proceeds of $102,095,000. AutoCanada purchased, and will operate, the franchised automobile dealership business of Canada One Auto Group, which retained a 49.6 per cent interest in the Fund. As part of the transaction, DaimlerChrysler Financial Services Canada Inc. provided a $233,125,000 line of credit to AutoCanada for inventory, working capital and acquisition needs. AutoCanada is Canada’s only publicly traded entity with interests exclusively in the operation of franchised automobile dealerships. Through its 50.4 per cent indirect interest in AutoCanada LP, it operates 14 franchised automobile dealerships in six provinces and has over 800 employees. It currently sells various new vehicle brands, including Chrysler, Dodge, Jeep and Hyundai.DaimlerChrysler Canada Inc. was represented by its in-house counsel Steve Rose, and by Barry Bresner, Paul Mingay and Murray Shopiro of Borden Ladner Gervais LLP.

Oil Sands Sector Fund Completes $430M IPO
On March 15, 2006, Oil Sands Sector Fund (the Trust), an investment trust, completed its initial public offering of 40 million trust units, representing 38,658,693 trust units purchased for cash, together with 1,341,307 trust units issued pursuant to an exchange option, at a price of $10 per trust unit for total gross proceeds of $400 million. An additional 3 million trust units were issued on March 28, 2006, pursuant to the exercise of the agents’ over-allotment option for additional gross proceeds of $30 million. The Trust has been created to provide investors with an opportunity to invest in equity securities of issuers participating in the Canadian oil sands sector and other issuers involved in the energy sector. The Trust’s investment objectives are to provide unitholders with (i) long term capital appreciation; and (ii) a stable stream of quarterly cash distributions targeted to be $0.125 per Trust unit ($0.50 per Trust unit per annum, representing a yield of 5 per cent per annum on the original issue price of $10 per Trust unit). The offering was made through a syndicate of agents, co-led by RBC Dominion Securities Inc. and CIBC World Markets Inc. and which included BMO Nesbitt Burns Inc., National Bank Financial Inc., Scotia Capital Inc., TD Securities Inc., Berkshire Securities Inc., Canaccord Capital Corporation, Dundee Securities Corporation, HSBC Securities (Canada) Inc., Desjardins Securities Inc., Raymond James Ltd., Research Capital Corporation, Blackmont Capital Inc. and Wellington West Capital Inc. Borden Ladner Gervais LLP acted for the Trust and Markland Street Asset Management Inc., the manager and trustee of the Trust, with a team that included Lynn McGrade, Dolores Di Felice, Adam Segal and Terence Lui (securities/corporate) and Stephen Fyfe (tax)

Golden Gate Acquires Geac
On March 14, 2006, Golden Gate Capital completed its acquisition of all of the issued and outstanding common shares in the capital of Geac Computer Corporation Limited for a total purchase price of approximately US$1 billion or US$11.10 per common share. The transaction was completed by means of a court-approved plan of arrangement under the Canada Business Corporations Act, after Geac shareholders overwhelmingly voted in favour of the plan. Golden Gate is a San Francisco-based private equity investment firm with over US$2.5 billion of capital under management dedicated to investing in high-growth businesses in change-intensive industries. Geac is a global enterprise software company that addresses the needs of chief financial officers. Golden Gate was represented by Kirkland & Ellis LLP and was also advised by Borden Ladner Gervais LLP with a team led by Paul Mingay that included Frank Allen and Dyana McLellan (corporate/securities), Larissa Tkachenko (tax), Adam Fanaki (Investment Canada), Howard Silverman and Will Wallace (banking), and Colleen Spring Zimmerman (intellectual property).

Angiotech Pharmaceuticals Acquires AMI
On March 23, 2006, Angiotech Pharmaceuticals, Inc. closed the acquisition of American Medical Instruments Holdings, Inc. (AMI) for approximately US$785 million (C$900 million), subject to post-closing adjustments. The transaction represents the largest acquisition by a Canadian company in the medtech sector. Angiotech is a specialty pharmaceutical company that discovers and develops treatment solutions for diseases or complications associated with medical device implants, surgical interventions and acute injury or trauma. AMI is a leading manufacturer of specialty, single-use medical devices. The acquisition was funded by way of a combination of cash on hand and the proceeds from the concurrent closings of a private placement of US$250 million in aggregate principal amount of 7.75 per cent senior subordinated notes due 2014, and a US$425 million senior secured credit facility consisting of a US$350 million term credit facility and a US$75 million revolving credit facility. Borden Ladner Gervais LLP provided local Canadian counsel support to Angiotech. BLG acted as special counsel, providing banking related advice and opinion letters, with a team that consisted of Donald Bird and Martha Bruce.

TransLink and Bilfinger Berger Complete GEB Project
On March 10, 2006, the Greater Vancouver Transportation Authority (TransLink) completed the commercial, financial and final close of the $1.117 billion Golden Ears Bridge Project (the GEB Project). The GEB Project involves the design, construction, financing and operation by Golden Crossing General Partnership (a Canadian special purpose vehicle created by Bilfinger Berger BOT Inc., a Canadian subsidiary of Bilfinger Berger GmbH) of a new connection from the Township of Langley and the City of Surrey to the District of Maple Ridge and the District of Pitt Meadows to provide north-south capacity to meet travel demand. The GEB Project includes a six-lane bridge across the Fraser River and connecting access arterial roads on both sides of the Fraser River, comprising in total approximately 13 kilometres of infrastructure. The GEB project has been described as the second largest privately financed public infrastructure project in Canada, after the Confederation Bridge. Golden Crossing General Partnership financed the design, construction and operation of the GEB Project with international lenders DEPFA BANK plc and Dexia Crédit Local, and Computershare Trust Company of Canada as security trustee. Golden Crossing Constructors was represented by Douglas Sanders, Chris Eagles and Karen Bradley of Borden Ladner Gervais LLP.

Yellow Pages Group Acquires Trader Media
On February 14, 2006, Yellow Pages Group completed its acquisition of all the outstanding shares of Trader Media Corp. from Fraser Francis Limited for a total purchase price of $436 million paid in cash and YPG LP limited partnership units exchangeable for publicly traded units of Yellow Pages Income Fund. Trader Media is Ontario’s largest publisher of print-based and online classified advertising publications, including AutoTrader, AutoMart, Renters News, Resale Homes and New Homes and Condos. Ed Merringer, Dolores Di Felice and Emma Miller (corporate) and Larissa Tkachenko (tax) of Borden Ladner Gervais LLP acted as counsel to Trader Media with respect to certain corporate and restructuring aspects of the transaction

NovaGold Completes Offering and Concludes Agreement with Tahltan Nation
On February 8, 2006, NovaGold Resources Inc., a company engaged in the exploration of mineral properties in Alaska and Western Canada, completed a public offering of 14,950,000 of its common shares at a price of $13.43 per common share for gross proceeds of approximately $200 million. The public offering was made pursuant to a prospectus filed in both Canada and the United States under the multijurisdictional disclosure system. NovaGold’s common shares are listed for trading on the Toronto Stock Exchange and on the American Stock Exchange. NovaGold intends to use the net proceeds of approximately $189 million on exploration and development work on its Galore Creek, Donlin Creek, Rock Creek and Ambler projects and for general corporate purposes. Citigroup Global Markets Inc., Bear, Stearns & Co. Inc. and RBC Dominion Securities Inc. were joint bookrunners for the transaction. On February 13, 2006, NovaGold Canada Inc, a wholly-owned subsidiary of NovaGold, and the Tahltan Central Council, on behalf of the Tahltan Nation, entered into a comprehensive participation agreement to support the development of NovaGold’s Galore Creek Project in northwestern British Columbia. The agreement commits both parties to working collaboratively throughout the environmental assessment review and the permitting process for Galore Creek and will remain in effect throughout the life of the Galore Creek Project. The Tahltan agreement will allow NovaGold and the Tahltan to jointly advance the Galore Creek Project toward the mutual objective of commencing project construction in early 2007. The agreement will benefit the Tahltan by maximizing training and employment of Tahltan members, providing access to Tahltan businesses for the supply of goods and services, and by establishing substantial financial contributions by NovaGold to the Tahltan Heritage Trust Fund created to mitigate any adverse social and cultural impacts of mine developments. Borden Ladner Gervais LLP represented the underwriters in Canada on the public offering with a team that was led by Eric Doherty.

Linens ’N Things Completes Asset-Based Loan Facilities
On February 14, 2006, an investor group led by Apollo Management, LP, Silver Point Capital, LP and National Realty & Development Corp. completed their acquisition of Linens ’N Things, one of the leading, national, large-format retailers of home textiles, housewares and decorative home accessories. As a part of the going-private transaction, the investor group completed a US$600 million cross-border, asset-based, working capital financing. The new ABL facilities were provided by a syndicate of lenders led by UBS AG, Stamford Branch, as administrative agent and US co-collateral agent, Wachovia Bank, National Association, as US co-collateral agent, Wachovia Capital Finance Corporation (Canada), as Canadian administrative agent and Canadian co-collateral agent, and UBS AG Canada Branch, as Canadian co-collateral agent. Bear, Stearns & Co. Inc. and the CIT Group/Business Credit, Inc. were co-syndication agents. Borden Ladner Gervais LLP was Canadian counsel to the borrowers with a team that included Stephen Redican, Gus Karantzoulis, David Whelan and Don Bird (financial services), Stephen Heller (tax), Adam Fanaki (competition) and Andrew Harrison (pensions).

Industrial Alliance Acquires Clarington
Industrial Alliance Insurance and Financial Services Inc. has successfully completed its $200 million-plus takeover bid for mutual fund company Clarington Corporation. Industrial Alliance of Quebec City is Canada’s fifth largest life and health insurance company with over $32 billion of assets under management and administration. The acquisition of Clarington adds over $4 billion of assets under management. With the acquisition, Industrial Alliance will rank 17th in the Canadian retail fund market, with over $10 billion in mutual and segregated fund assets and more than 500,000 clients Canada-wide. The offer by Industrial Alliance to acquire all of the outstanding Clarington common shares not owned by the company expired on January 10, 2006, with more than 90 per cent of the Clarington shares taken up pursuant to the offer. Industrial Alliance offered $15 per share pursuant to the offer, payable in cash and/or common shares. Clarington’s in-house legal team was led by general counsel Matthew Campbell. Clarington was represented by Borden Ladner Gervais LLP with a team that included Rosalind Morrow, Frank Allen, Paul Simon and Terence Lui (securities/corporate), Carol Derk (securities - investment funds), Robert Black (securities/competition), Martin Sclisizzi (employment), Adam Fanaki (competition), Eva Krasa (tax) and Gus Karantzoulis (banking/structured finance), while Jeff Glass, David Jackson and Chris Hewat of Blake, Cassels & Graydon LLP acted for the special committee of the board of directors of Clarington.

Giles, et. al. v. Westminster Savings Credit Union et. al.
After a 32-day trial spanning several months during 2004 and 2005, the BC Supreme Court delivered an important decision on January 27, 2006, in Giles v. Westminster Savings Credit Union. The case analyzes the complex issues of fiduciary duty and trust law in the context of allegations of knowing assistance and knowing receipt directed at a financial institution. The case is instructive to underline the risks of accessory liability for breach of trust by the customer and the standards that delineate liability of an alleged accessory. The Giles action was initially commenced in August 2000 as a representative proceeding on behalf of approximately 500 investors, contemporaneous with the commencement of a parallel putative class action by a competing plaintiff group representing certain other investors. Following a carriage motion between the competing actions in August 2002, the class action was stayed and the Giles action was allowed to proceed to trial as an action on behalf of the individual plaintiffs that had advanced funds totalling in excess of $16 million to Ralph Taylor/TVL (TVL) in relation to TVL’s purchase and development of various properties around BC. The investors were promised a 20 per cent annual return, plus on completion, a share of the profits of the specific development as related to their investment. TVL operated one bank account at Westminster Savings Credit Union (WSCU) over a period of more than nine years. During that time, all funds received by TVL, including funds received from investors, were intermingled and deposited to and paid from that one account for all of TVL’s various property developments. WSCU’s account manager, Gary Thomas, had primary responsibility for the TVL relationship throughout these years, and personally loaned funds to TVL in breach of WSCU’s conflict rules. Over the period of several years, TVL sold/transferred some of its development properties to certain major investors, each of whom received mortgage financing for the acquisition with the assistance of Thomas at WSCU. The other TVL investors did not consent to the transactions and asserted that they were not aware of them and would not have invested with TVL had they known that TVL would mortgage the properties. In early 1998, TVL became insolvent, a receiver was appointed, and many of the investors lost all of their investments. The plaintiffs alleged that they advanced funds to TVL under general trust conditions, or alternatively under a “Quistclose” or Purpose Trust, and that Taylor had breached that trust. Alternatively, the plaintiffs alleged that they had a beneficial ownership of the lands, or that Ralph Taylor had breached of a fiduciary duty owed to the investors. The decision has valuable commentary on the subtle and complex points of law on each allegation and holds that while there was no trust of any kind established, the peculiar circumstances of the investor/developer relationship here placed Ralph Taylor as a fiduciary. The Court further found that the transfer by TVL to the nominees and the mortgage of those properties by the nominees to WSCU was a breach by Ralph Taylor/TVL of his fiduciary duties. The investors also alleged that WSCU and Thomas were liable for Taylor’s breach of trust or fiduciary duty on a theory of accessory liability, premised on either knowing assistance or knowing receipt. WSCU and Thomas successfully defended these claims on the basis that they did not have the requisite knowledge. In knowing assistance, the accessory must have actual knowledge of the existence of the trust or the status of the fiduciary and be willfully blind or reckless as to whether their participation in the transaction at issue amounts to a breach of the duties owed by the trustee/fiduciary. Constructive knowledge is not sufficient for liability. In contrast, to find an accessory liable in knowing receipt requires that the accessory received or applied trust property for its own benefit and that it did so with actual or constructive knowledge of the breach of trust. In addition to lack of requisite knowledge, the Court found that Thomas did not receive any trust property and that to the extent that WSCU received mortgage security over the lands at issue, WSCU had advanced new funds in support thereof and as such had a juristic reason for the receipt. Gary Thomas was represented by Ross McGowan and Liam O’Sullivan of Borden Ladner Gervais LLP.

Chamaelo, Tropic Networks and Tournament Energy Merge
On January 5, 2006, Chamaelo Exploration Ltd., Tropic Networks Inc. and Tournament Energy Ltd. completed a plan of arrangement whereby the three entities merged to form an oil and gas company with a market capitalization of approximately $311 million and its shares listed on the Toronto Stock Exchange under the name Chamaelo Exploration Ltd. In connection with the arrangement, bought deal equity financings for aggregate gross proceeds of $93,750,000 were completed with a syndicate of underwriters co-led by Orion Securities Inc. and Sprott Securities Inc. and including GMP Securities Ltd., Tristone Capital Inc., Haywood Securities Inc. and National Bank Financial Inc. (collectively, the underwriters). Bank financing was also provided by National Bank of Canada in the amount of $60 million. The underwriters were represented by Scott Wilson, Gil Malfair and Shane Stevenson of Borden Ladner Gervais LLP.

Canada Housing Trust Completes Public Offering
On December 22, 2005, Canada Housing Trust No. 1, a special purpose securitization trust, issued 4.05 per cent Canada Mortgage Bonds, series 13 in an aggregate principal amount of $4.95 billion, which were provided with Canada’s sovereign guaranteee through Canada Mortgage and Housing Corp. (CMHC). CMHC was represented in-house by Douglas Tyler, Louise Michel and Reem Hindieh, who were assisted by Borden Ladner Gervais LLP, special counsel to the trust, with a team that included Rosalind Morrow and Adam Segal (securities and derivatives), Stephen Redican, Gus Karantzoulis and Terence Lui (banking and structured finance) and Larissa Tkachenko (tax) in Toronto, and Daniel Gendron (civil) in Montreal.

Miranda Technologies Completes IPO
On December 8, 2005, Montreal-based Miranda Technologies Inc., which manufactures and markets high-performance hardware and software for the television broadcast industry, completed a $141 million initial public offering and secondary offering of its common shares, and a listing on the Toronto Stock Exchange. The over-allotment option granted by the selling shareholders to the underwriters was exercised in full on December 14, 2005. Purs