COURT OF APPEAL FOR ONTARIO

DATE: 20001106

DOCKETS: C33454 and C33914

RE: HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT (Plaintiff) –and– CURRAGH INC. (Defendant)

AND RE: IN THE MATTER OF ANVIL RANGE MINING CORPORATION

AND IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED

AND IN THE MATTER OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, c. C-43, AS AMENDED

AND IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED

AND IN THE MATTER OF THE PLAN OF COMPROMISE OR ARRANGEMENT OF ANVIL RANGE MINING CORPORATION

BEFORE: CATZMAN, ABELLA and SHARPE JJ.A.

COUNSEL: Kevin R. Aalto, for the appellant Cumberland Asset Management, Berner & Company Inc., Global Securities Corporation, Peel Brooke Inc., Robert N. Granger and Adrian M.S. White

Frederick L. Myers, for the respondent and cross-appellant 1235866 Ontario Inc.

HEARD: November 1, 2000

On appeal from the judgment of Justice James M. Farley dated December 30, 1999.

E N D O R S E M E N T

[1] It was Mr. Aalto’s submission that, pursuant to para. 2.01(h) of the Anvil Range agreement, Anvil Range acquired the benefit of all Curragh confidentiality agreements, including those relating to the Kassandra Mines in Greece. We do not agree.

[2] Paragraph 2.01(h) limits the rights acquired to “the benefit of all confidentiality or like agreements entered into by Curragh prior to the date of the Initial Order with any third parties in relation to any of the Assets”(our emphasis). The term “Assets” is defined in para. 1.01(1)(f) of the agreement to mean “the right, title and interest of [the Interim Receiver of Curragh] and of Curragh in and to the Subject Assets other than the Excluded Assets” (our emphasis). “Excluded Assets” is broadly defined in para. 2.01 and includes, in subparagraph (D), “property and assets forming part of the Subject Assets but which do not pertain directly to the future operation of the Faro Property or the Faro Equipment”. The definition of Excluded Assets in this subparagraph begins in general terms and moves to an enumeration of specific examples. Such a definition is not limited to the specific examples or to the types of specific example that follow in the enumeration, and the eiusdem generis principle has no application.

[3] In our view, Farley J. correctly decided, by reference to subparagraph 2.01(D), that Anvil Range had acquired the benefit of Curragh’s confidentiality agreements only insofar as they pertained directly to the future operation of the Faro Property and the Faro Equipment, both of which are also defined terms in the agreement. We agree with his conclusion that Curragh’s information about the Kassandra Mines and its causes of action against former officers and employees concerning the Kassandra Mines did not pertain directly to the future operations of either the Faro Property or the Faro Equipment and did not pass to Anvil Range under the agreement.

[4] We see no ambiguity in the agreement that would suggest any other conclusion and, in our view, Farley J. correctly concluded that he could determine the issue, as he did, on the basis of the material before him.

[5] Accordingly, the appeal is dismissed with costs.

[6] Mr. Myers advised the court that, if the appeal were dismissed, he would not be pursuing the cross-appeal. The cross-appeal is therefore withdrawn without costs.

Signed: “M.A. Catzman J.A.”

“R.S. Abella J.A.”

“Robert J. Sharpe J.A.”