James William Earl Doris

The respondent brought motions for immediate disclosure of materials generated during an investigation and for permission to use those materials to prepare for an interview by the United States Securities and Exchange Commission (SEC).

The Ontario Securities Commission ordered staff to disclose the materials immediately, finding that 'as soon as is reasonably practicable' means without delay if no herculean efforts are required.

The Commission also held that the respondent's use of the materials to prepare for the SEC interview would not breach the implied undertaking rule or section 16(2) of the Securities Act, given the intertwined nature of the SEC and Commission investigations.

Xstrata applied to the Ontario Securities Commission for an order to cease trade Falconbridge's shareholder rights plan, which was preventing Xstrata from advancing its unsolicited take-over bid.

Falconbridge cross-applied for an order prohibiting Xstrata from making market purchases of up to 5% of Falconbridge shares under the exemption in section 94(3) of the Securities Act.

The Commission applied the Royal Host factors and determined that it was in the public interest to allow the rights plan to continue for a brief period to allow the auction process to continue, given the competing bid from Inco.

The Commission also suspended Xstrata's ability to make market purchases under section 94(3), finding that such purchases, combined with Xstrata's ability to waive its minimum tender condition, could prematurely end the auction and deprive shareholders of the opportunity to tender to the bid of their choice.

Both the rights plan and the suspension of the 5% exemption were ordered to remain in place until July 28, 2006, or until Xstrata took up sufficient shares to meet its majority of the minority condition.

The appellant appealed the judgment of Justice Swinton.

The Court of Appeal dismissed the appeal, finding it unnecessary to comment on the standard of review and agreeing with the reasons of the motion judge which adequately dealt with the grounds of appeal.

Costs were awarded to the respondents.