Mark A. Gelowitz

The trustees of a public unit trust unilaterally amended the Declaration of Trust to create a unitholder rights plan in response to a hostile takeover bid by the respondent.

The respondent, who owned 20.3% of the units, challenged the amendment.

The application judge declared the rights plan and the amendment null and void, finding they contravened the anti-dilution proviso of the Declaration.

The Court of Appeal dismissed the trustees' appeal, agreeing that the amendment violated the anti-dilution clause and required a 75% unitholder vote.

The appellant law firm, Davies, Ward & Beck LLP, appealed an order disqualifying it from acting for Trilogy Enterprises Ltd. in a hostile takeover bid for Chapters Inc. The law firm had previously acted for Chapters on competition law issues arising from its formation.

The Court of Appeal dismissed the appeal, finding that the previous retainer was sufficiently related to the current matter, thereby raising a presumption that confidential information was imparted.

The law firm failed to discharge the heavy burden of showing that no relevant confidential information was received that could be used to the prejudice of its former client.

The respondent, a lawyer, was defamed by the appellants who published documents falsely alleging he had misappropriated funds intended for a community organization.

The Supreme Court of Canada upheld the trial judge's finding that the publications were defamatory and that the appellants were jointly and severally liable as joint tortfeasors.

The Court rejected the defence of qualified privilege, finding that the appellants had exceeded the limits of the occasion and were motivated by express malice.

The Court restored the trial judge's award of $140,000 in compensatory damages and $325,000 in special damages for loss of business, as well as the award of prejudgment interest for 12.5 years.