Kent E. Thomson

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 plaintiff, a large gold producer, was the target of a vicious and prolonged Internet defamation campaign by the defendant.

The defendant posted hundreds of false and malicious messages on various financial message boards accusing the plaintiff of fraud, tax evasion, and other crimes.

The trial judge awarded $15,000 in general damages and dismissed claims for punitive damages and injunctive relief.

On appeal, the Court of Appeal held that the trial judge failed to appreciate the unique, instantaneous, and borderless nature of Internet defamation.

The Court increased general damages to $75,000, awarded $50,000 in punitive damages, and granted a permanent injunction restraining the defendant from publishing further defamatory statements.

The appellant, Congrès Ibéroaméricain Du Canada Inc., appealed an order denying it leave to intervene in an application challenging the constitutionality of the Radiocommunication Act under s. 2(b) of the Charter.

The Court of Appeal upheld the motion judge's findings that the appellant lacked a distinct perspective, did not have a real and substantial interest, lacked special expertise, and that its intervention would unduly delay and prejudice the proceedings.

The appeal was dismissed.

The successful respondents on an appeal regarding class action certification sought costs of $90,000 on a partial indemnity basis.

The unsuccessful appellants argued that no costs should be awarded pursuant to s. 31(1) of the Class Proceedings Act, 1992, claiming the matter was a test case raising novel points of law and public interest.

The Court of Appeal rejected the argument for no costs.

Considering the $100 million claim size, the substantial preparation required, and the fact that much preparation was already done for the Divisional Court appeal, the Court fixed costs at $50,000 on a partial indemnity scale.

The appellants, indirect purchasers of homes containing concrete bricks coloured with the respondents' iron oxide pigment, sought to certify a class action alleging a price-fixing conspiracy.

The motion judge certified the action, but the Divisional Court set aside the certification.

On appeal, the Court of Appeal upheld the Divisional Court's decision, finding that the appellants failed to provide a sufficient evidentiary basis to show that loss could be proved on a class-wide basis.

Because liability required individual proof of loss, a class action was not the preferable procedure.

The plaintiffs sought to certify a class action on behalf of indirect purchasers (homeowners and end users) alleging that the defendants engaged in a price-fixing conspiracy regarding iron oxide pigment used in construction materials.

The application judge certified the action.

The defendants appealed.

The Divisional Court allowed the appeal and set aside the certification order, finding that a class proceeding was not the preferable procedure.

The court held that the plaintiffs faced insurmountable problems of proof regarding whether the alleged overcharge was passed on to them through the chain of distribution, making the action unmanageable and inappropriate for aggregate damages assessment.

Following the release of the main judgment dismissing the appeal, the Court of Appeal issued an addendum to clarify the costs award.

The court upheld the motions judge's decision to award the individual defendants their costs against both plaintiffs, as the individual defendants had been improperly joined in the action.

The appellants appealed a summary judgment dismissing most of their claims against magazine publishers and a distributor for conspiracy to injure, conspiracy to unduly lessen competition, wrongful interference with economic relations, inducing breach of contract, and breach of contract.

The Court of Appeal allowed the appeal in part, finding that there was some evidence of a common design or agreement among the corporate defendants to injure the appellants or unduly lessen competition, requiring a trial for the conspiracy and wrongful interference claims.

The appeal regarding the breach of contract and inducing breach of contract claims was dismissed, as the contract was terminated in accordance with its unambiguous terms.

The Continental Bank of Canada disposed of a partnership interest acquired from its subsidiary during a winding-up process.

The Minister of National Revenue reassessed the Bank, arguing the gain was income rather than a capital gain.

The Tax Court and Federal Court of Appeal held it was a capital gain.

The Supreme Court of Canada dismissed the Crown's appeal, finding the transaction was capital in nature and not an adventure in the nature of trade.

The Court also refused to entertain the Crown's new alternative argument regarding recapture of capital cost allowance, as it was raised after the limitation period for reassessment had expired.

The appellant, a bank subsidiary, transferred its leasing assets to a partnership to utilize a tax rollover provision under s. 97(2) of the Income Tax Act.

The Minister reassessed the appellant, arguing the partnership was invalid because the Bank Act prohibits banks from participating in partnerships, and the Partnerships Act dissolves partnerships engaged in unlawful business.

The Supreme Court of Canada held that the partnership was valid.

The Bank Act prohibition applied to the parent bank, not the subsidiary, and did not render the partnership's business unlawful.

Furthermore, the Bank Act's saving provision prevents transactions from being invalidated solely due to a contravention of the Act.

The appeal was allowed.

Niagara Country Fresh Poultry Inc. appealed a decision by the Chicken Farmers of Ontario denying its request for an allocation of supply of chicken for processing for crop Quota Period A-20.

Niagara, a new entrant, had requested 1.6 million kilograms.

The Tribunal considered the industry's capacity, the ongoing review of the allocation process, and the history of granting supply to new entrants.

The Tribunal directed the CFO to allot 100,000 kilograms for the domestic market and 200,000 kilograms for the export market to Niagara for Quota Period A-20.

Niagara Country Fresh Poultry Inc., a new entrant building a chicken processing facility, appealed a decision by the Chicken Farmers of Ontario denying its request for an allocation of 1.6 million kilograms of live chicken for Quota Period A-19.

The Tribunal upheld the denial, finding that granting such a large initial allocation to a plant not yet operational would be irresponsible and disruptive to the industry, especially while a review of the supply setting mechanism was underway.

The appellants appealed a libel judgment arising from a press conference at which counsel publicly read and commented on contempt allegations against a Crown attorney that were later found to be untrue.

The Court held that the private defamation action did not constitute government action under s. 32 of the Charter, but confirmed that the common law must nonetheless develop consistently with Charter values.

The Court declined to adopt the American actual malice rule, holding that Canadian defamation law appropriately balances freedom of expression with the protection of reputation.

It further held that any qualified privilege attached to the occasion was defeated by the excessive, careless, and high‑handed dissemination of serious allegations.

The jury's awards of $300,000 general damages, $500,000 aggravated damages, and $800,000 punitive damages were upheld.

The appellants appealed a judgment of the Federal Court of Appeal that affirmed an order granting mandamus to compel the Minister of National Health and Welfare to issue a notice of compliance respecting a generic version of a drug.

The Supreme Court of Canada dismissed the appeal substantially for the reasons of the Federal Court of Appeal.