Court File and Parties

COURT FILE NO.: CV-14-00010695-00CL DATE: 20230706 ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST)

IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT WITH RESPECT TO U. S. STEEL CANADA INC.

BETWEEN:

U.S. STEEL CANADA INC. et al. Plaintiffs – and – THE UNITED STEEL PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION (UNITED STEEL WORKERS et al.) Defendants

Counsel: Richard B. Swan, Raj S. Sahni and Thomas Gray, counsel for the Monitor, Ernst & Young Inc. and Interim Land Restructuring Officer Geoff R. Hall, James D. Gage and Saneea Tanvir, counsel for Stelco Inc. Robert B. Bell, Emily Y. Fan, Lucy Sun, Roger Jaipargas and Xue Yan, counsel for DGAP Investments Limited Andrew J. Hatnay, representative counsel for non-union retirees and active employees of U.S. Steel Canada Inc. Tracey Henry, counsel for USW Local 1005 ELHT and Pension Deficit Funding Trust Lily Harmer, counsel for USW Local 8782 (FLHT) Colette Koopman, counsel for the Plan Administrator, LifeWorks

HEARD: June 26, 2023

Endorsement

McEwen, J.

[1] Stelco Inc. (“Stelco”) and DGAP Investments Limited (“DGAP”) have returned to the Court with respect to their ongoing disputes concerning a June 5, 2018 reconveyance agreement (the “Reconveyance Agreement”).

[2] DGAP seeks a declaration that any reference to, or provision governing, “shared facilities and/or reciprocal easement agreements” in the Reconveyance Agreement has been complied with, or is not necessary to complete the reconveyance of the Reconveyance Parcel (defined below) as ordered by this Court on December 19, 2022 (the “December Reasons”). [1] Alternatively, DGAP seeks an order approving the easement agreement in the form attached to its Motion Record.

[3] Once again, I am releasing a decision by way of endorsement given the time sensitive nature of the issues in question and the necessity to bring long-standing disputes to a resolution.

Background

[4] The background to this motion is well set out in the December Reasons and supplemented in my endorsement of May 5, 2023 (the “May Endorsement”). [2]

[5] For the purposes of this motion, however, it is worth noting that as a result of U.S. Steel’s application for protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“the CCAA”), from which Stelco emerged, certain agreements were entered into with various salaried employees, retirees and pensioners (the “Stakeholders”).

[6] As part of a complex plan of restructuring, a significant amount of industrial land owned by U.S. Steel, now Stelco, was transferred to a court-created group of special purpose entities designed to hold land (collectively, the “Land Vehicle”). The land was to be sold for the benefit of the Stakeholders.

[7] As part of the plan, the Monitor was appointed as the interim Land Restructuring Officer (“LRO”) to manage the Land Vehicle. [3]

[8] Stelco was given the opportunity to, and did, repurchase some of the lands from the Land Vehicle. For reasons not particularly important to this motion, all lands were transferred back to Stelco when Stelco made its purchase. Stelco and LandCo (one of the court-created entities), on behalf of the Land Vehicle, thereafter entered into a Reconveyance Agreement under which Stelco would transfer title to a particular parcel of land (the “Reconveyance Parcel”) to Landco’s nominee upon its sale.

[9] Generally, the land sale process under the CCAA was proceeding without any real conflict, to the benefit of the Stakeholders. That is, until DGAP, a residential developer, purchased the Reconveyance Parcel which consisted of approximately 2,000 acres in Haldimand County, Ontario next to Stelco’s Lake Erie Works Steel Plant as well as some other properties (the “DGAP Sale Agreement”). Not only had Stelco declined the opportunity to purchase the Reconveyance Parcel, it raised no objections when DGAP purchased the Reconveyance Parcel in 2020.

[10] Conflict arose when DGAP announced development plans on the Reconveyance Parcel. DGAP plans to build a new development on the Reconveyance Parcel and other properties it purchased for both residential and industrial uses. The residential component calls for 15,000 homes to be built, which will house approximately 40,000 residents. When Stelco learned of the proposed development, it described it as an “existential threat” to its operations and took steps to oppose or control DGAP’s proposed development.

[11] First, Stelco argued that it was not required to reconvey the Reconveyance Parcel to LandCo, claiming that LandCo missed certain timelines mandated by the Reconveyance Agreement. Instead, Stelco took the position that LandCo was required to sell the Reconveyance Parcel to Stelco. Additionally, it alleged that even if it was wrong in its submission, the appropriate remedy was damages and not specific performance with respect to the transfer of this land. In the December Reasons, I held, amongst other things, that Stelco was bound to complete the severance of the Reconveyance Agreement and transfer title to the LandCo Vendor as the nominee for LandCo. I ordered specific performance to effectuate this transfer.

[12] Subsequent to the December Reasons, Stelco sought leave to appeal. [4] It did not take any steps to transfer the Reconveyance Parcel to the LandCo Vendor. Instead, Stelco made an unsolicited proposal to the Monitor and the Stakeholders whereby it proposed that the Monitor and Stakeholders sell their ownership interest in the Land Vehicle to Stelco. The particulars of this proposal are set out in the May Endorsement. I directed that the Monitor could pursue negotiations with Stelco. Ultimately, this resulted in a court-approved securities purchase agreement (“the SPA”). The SPA allows the Stakeholders to sell their interest in the Land Vehicle and exit these long-standing CCAA proceedings and the ongoing bitter litigation between Stelco and DGAP.

[13] As noted in the May Endorsement, DGAP is predictably unhappy with this turn of events and believes that the SPA is a bad faith ruse created by Stelco to obstruct the completion of the Reconveyance Agreement and scuttle the resulting DGAP Sale Agreement. [5] DGAP points to Stelco’s stated belief that the DGAP Sale Agreement and the subsequent development plans represent an existential threat to its operations and submits that Stelco will do whatever possible to ensure that development does not occur.

[14] Stelco, on the other hand, states that it is ready, willing and able to complete the Reconveyance Agreement.

[15] The present dispute surrounds reciprocal easement agreements required by the Reconveyance Agreement under Article 4.1(m). It provides that when the Reconveyance Parcel is reconveyed, LandCo and Stelco shall enter into shared facilities and/or reciprocal easement agreements. [6] Article 4.1(m) reads as follows:

(m) On the Reconveyance Date, LandCo and Stelco shall enter into such shared facilities and/or reciprocal easement agreements required for the operation of the Planning Act Lands and the balance of the Property, which shared facilities and/or reciprocal easement agreements shall be settled by the Parties prior to the Reconveyance Date.

[16] As a result of the SPA, Stelco and DGAP have been negotiating directly with each other, with this Court’s approval, to resolve the issue as to which reciprocal agreements are required. They have not been able to agree. It bears noting that DGAP does not seek any easements. It also bears noting that since DGAP purchased the Reconveyance Parcel, Stelco never pursued discussions with the Monitor concerning reciprocal easements and nothing transpired after May 2022 when Stelco, in breach of the terms of the Reconveyance Agreement, claimed that it no longer had an obligation to reconvey the Reconveyance Parcel to the LandCo Vendor. Very little, if anything, transpired subsequent to my December Reasons with respect to the reciprocal easements between Stelco and the Monitor.

[17] Thereafter, in the May Endorsement, I approved the SPA. On two occasions since, I have directed that the CEOs of Stelco and DGAP enter into discussions concerning the provisions of Article 4.1(m). As I describe below, little progress has been made and the parties are at an impasse.

[18] It is for this reason that this dispute has returned before the Court. I will now turn to the positions of the parties on the motion.

The Position of DGAP

[19] DGAP submits that there is no longer a provision in the Reconveyance Agreement requiring an easement agreement prior to reconveying the Reconveyance Parcel. DGAP points to Article 4.1(m) which states that a “shared facilities and/or reciprocal easement agreement … shall be settled … prior to the Reconveyance Date”.

[20] DGAP relies on the fact that the Reconveyance Date is specifically defined in the agreement as 15 days after “Planning Act Consent” is obtained and all appeals have expired. Since Stelco obtained Planning Act Consent in January 2022 and the appeal period expired 15 days later, DGAP submits that the Reconveyance Date cannot be later than March 1, 2022. DGAP therefore argues that Stelco cannot now rely upon Article 4.1(m) to assert that it is entitled to any easements 15 months after the expiration of the Reconveyance Date.

[21] Alternatively, DGAP submits that, at best, the provisions of Article 4.1(m) constitute “an agreement to agree” and are not enforceable. In the further alternative, DGAP seeks approval of the draft easement agreement it has prepared (the “DGAP Easement Agreement”). The DGAP Easement Agreement, including schedules, runs 35 pages in length.

[22] In support of its submissions to impose the DGAP Easement Agreement, DGAP points to the fact that Stelco has done virtually nothing to resolve the easement issue and there is no reason to believe this will change. DGAP recites a number of current disputes between them, including the fact that Stelco is now looking for releases from prospective homeowners in DGAP’s proposed development. Further, Stelco recently demanded that it be allowed an easement that would allow it to sequester CO2 from its operations under the Reconveyance Parcel and two other parcels of land to be purchased by DGAP. DGAP is of the view that these demands are not negotiable and the parties are at an impasse. DGAP further submits that this type of stalemate suits Stelco’s purposes so that it can eliminate the self-described existential threat.

The Position of Stelco

[23] Stelco primarily makes four submissions in opposition to DGAP’s motion.

[24] First, Stelco argues that DGAP’s motion is premature given the enormous commercial stakes at risk. Stelco submits that CEO to CEO discussions continue and asks that I order that DGAP comply with Stelco’s request for any non-disclosure agreement (the “NDA”). Overall, it submits that more time is needed and that a commercial solution is preferrable to a judicial solution.

[25] Second, Stelco submits that, in any event, this Court has no jurisdiction to impose contractual terms upon the parties without the consent of the contracting parties. Stelco submits that its position is supported by a general rule that “it is not the function of the court to rewrite the contract for the parties”: Jedfro Investments (U.S.A.) Ltd. v. Jacyk, 2007 SCC 55, [2007] 3 S.C.R. 679, at para. 34, citing Pacific National Investments Ltd. v. Victoria (City), 2004 SCC 75, [2004] 3 S.C.R. 575, at para. 31.

[26] Stelco argues that the CCAA does not provide for the right to impose contractual terms upon the parties without consent. To support this point, Stelco submits that, although s. 11 of the CCAA provides this Court with broad powers and the ability to, “subject to the restrictions set out in this Act…make any order that it considers appropriate in the circumstances”, such powers are not boundless and that this authority must be exercised in the furtherance of the remedial objectives of the CCAA: see Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, at para. 59.

[27] In this regard, Stelco submits that the remedial objectives referred to in Century Services are not present in this case. Therefore, in this case, this Court can never impose a solution on the parties without their consent, including when the parties are at a total impasse. The parties must be left on their own to negotiate their way to a settlement. Even if, as DGAP asserts, there is an impasse and there is no reason to believe that a resolution is in sight.

[28] Third, Stelco submits that DGAP is in error in asserting that the Reconveyance Date has already passed. Stelco submits that DGAP’s argument turns on a narrow and legally impermissible reading of Articles 4.1(i) and 4.1(m) in isolation from the remainder of the Reconveyance Agreement and without taking commercial efficacy into account.

[29] Stelco argues that the well-established law supports the notion that contractual text must not be read literally but rather read in conjunction with the surrounding circumstances or factual matrix; that the contractual language must be read as a whole; and that contractual language must be read in a manner that achieves commercial efficacy: see Scanlon v. Castlepoint Development Corp. (1992), 11 O.R. (3d) 744 (C.A.).

[30] Stelco asserts that it would be an error in law to read a provision of a disputed contract in isolation rather than construe the contract as a whole.

[31] Instead, Stelco urges the Court to read the various relevant provisions of Article 4.1 as a whole, which outline a number of events that are to occur on the Reconveyance Date as follows:

(a) Article 4.1(i) provides that on the Reconveyance Date, “Stelco shall reconvey to LandCo (or as it may direct) the Planning Act Lands (excluding any Stelco Equipment) that are the subject of such Planning Act Consent on the terms and subject to the conditions set out in this Agreement”;

(b) Article 4.1(j) provides for the delivery of deeds of land, a bill of sale in respect of chattels, assignments of contracts, discharges of encumbrances and other documents required to give effect to the conveyance;

(c) Article 4.1(k) provides for the execution and delivery of other specified documents required to effect the conveyance; and

(d) Article 4.1(m) provides for the entry into of the Required Agreements.

[32] Based on the foregoing, reading Article 4.1 as a whole, Stelco argues it is clear that the Reconveyance Date is the closing date; in other words, the day on which Stelco reconveys the land and the parties execute the various documentation required to complete the reconveyance. In this regard, Stelco points to the entire wording of Article 4.1(i) which specifically sets out that the reconveyance is to take place “on the terms and subject to the conditions set out in this Agreement”.

[33] Stelco further submits that if DGAP’s interpretation was correct, each of Articles 4.1(i), 4.1(j) and 4.1(k) would have had to be performed in February 2022. Since none of that occurred, none of those provisions would be in effect anymore, as well. Since the Reconveyance Date has yet to happen, and it will happen on the date of closing, Stelco submits that DGAP’s argument that the Reconveyance Date passed in February 2022 as a result of the obligation to enter into the required agreements no longer exists, is incorrect. Stelco also points to the fact that DGAP’s argument is undermined by its own conduct in entering into negotiations concerning the easements this year.

[34] In support of the argument, Stelco further argues that DGAP’s position constitutes a collateral attack on my December Reasons wherein I specifically found that neither Stelco nor LandCo had any further obligations pursuant to Article 4.1(h) of the Reconveyance Agreement but made no such finding with respect to Article 4.1(m). In the December Reasons Stelco submits that I specifically turned my mind to the fact that I would maintain ongoing supervisory control of the process and specifically the completion of the Reconveyance Agreement (see paras. 218, 227 and 228).

[35] Fourth, Stelco submits that I ought not to impose DGAP’s Easement Agreement on the parties. In this regard, Stelco relies upon the affidavit of its CEO, Allen Kestenbaum, and the report of its expert, David Riley, which generally opine that Stelco’s list of required easements are, generally speaking, required (per Mr. Kestenbaum) and reasonable and necessary from a land use planning perspective (per Mr. Riley). Since Mr. Riley’s evidence is the only expert evidence before the Court, Stelco argues that there is no basis for me to reject it and accept DGAP’s Easement Agreement.

Analysis

[36] It bears noting from the outset that, given the rather time sensitive nature of this motion, materials were filed up until the evening before the hearing of the motion, including Mr. Riley’s report that was received the day before the motion.

[37] This has understandably placed this Court in a rather difficult position to determine this motion. The subject matter of the motion is not only important to Stelco, as it involves its ongoing and future operations, but also obviously to DGAP who has purchased a significant amount of property and plans to develop a large multi-use development. The subject matter of the motion is also important to the Stakeholders, who will soon exit this matter when the SPA is completed but have an ongoing vested interest in ensuring that Stelco remains as a viable entity. They support Stelco’s submissions.

[38] I begin my analysis by noting that I am of the view that s. 11 of the CCAA confers authority upon this Court to resolve the dispute between Stelco and DGAP concerning Article 4.1(m) of the Reconveyance Agreement involving reciprocal easements.

[39] It is entirely consistent with the objectives of the CCAA to make the necessary orders to complete the reciprocal easement agreements required to effectuate the Reconveyance Agreement. This will provide for a timely, efficient and impartial resolution of the issues concerning the Reconveyance Agreement. And, amongst other things, it will ensure the fair and equitable treatment of Stelco, DGAP and the Stakeholders.

[40] The above view is consistent with my December Reasons where I expressly mentioned, as noted above, in paragraphs 218, 227 and 228, that s. 11 provided this Court with oversight to see the completion of the severance and reconveyance of the Reconveyance Parcel and that the Court would remain in its supervisory capacity. I expressly rejected Stelco’s similar arguments that this Court should not end up supervising negotiations of agreements. In doing so, I noted that, where Stelco has reaped the benefits of CCAA restructuring it is fair and reasonable that this Court stay on and see that the reconveyance is completed, particularly where Stelco has breached the Reconveyance Agreement and where an order for specific performance has been made.

[41] In this regard, I reject Stelco’s submission that even where there is an impasse, this Court should not intervene and allow for indefinite negotiations to take place. In my view, such an approach would be the antithesis to the entire purpose of the CCAA.

[42] Having come to that conclusion, I now move to my analysis of the dispute concerning the application of the Reconveyance Agreement. I begin by noting that I prefer Stelco’s submissions over those of DGAP on the interpretation of Article 4.1(m). I am of the view that DGAP’s interpretation of the interplay of the relevant sections of Article 4.1 does not withstand scrutiny. It places too narrow and literal an interpretation upon the partial section of Article 4.1(i) and Article 4.1(m), upon which it relies for its submission that the Reconveyance Date cannot extend past March 1, 2022.

[43] Such an interpretation runs contrary to the guidance set out in Scanlon. Contractual text must not be read literally, but rather in conjunction with the surrounding circumstances, and as a whole in a manner that achieves commercial efficacy. In this regard, I accept Stelco’s submissions that a proper reading of the relevant sections leads to the conclusion that the Reconveyance Date is the closing date rather than the interpretation advanced by DGAP. I further accept Stelco’s argument that if DGAP’s submissions were correct, Articles 4.1(i), (j) and (k) would have had to be performed in February 2022. Since that also did not happen, none of those provisions could be in effect either. Last, to accept DGAP’s interpretation would be to ignore the concluding words of Article 4.1(i) that states that the reconveyance is “subject to the conditions set out in this Agreement”.

[44] In all of these circumstances, I believe that DGAP’s interpretation of Article 4.1(m) cannot stand. My view is further bolstered by the fact that DGAP continued to negotiate the terms of the easements throughout without raising this argument until the motion.

[45] I also do not accept that Article 4.1(m) constitutes “an agreement to agree”. The plain wording of Article 4.1(m) simply does not bear out this argument. Further, Article 4.1(m) is a small part of a comprehensive Reconveyance Agreement in which no party has ever taken the position that any section was not binding but rather constituted some form of agreement to agree.

[46] I also pause here to note that while I do not find that DGAP’s motion is a collateral attack on my December Reasons, as noted, I stated therein that it would be anticipated that court assistance would be required to determine 4.1(m). Having declined to grant the relief sought by DGAP concerning the interpretation of the relevant sections of the Reconveyance Agreement, this Court will carry on with its oversight pursuant to s. 11 of the CCAA.

[47] This leads to the question as to what further steps are necessary. Although I have come to the conclusion that this Court has jurisdiction to determine the easement issue between Stelco and DGAP, I do not propose, at this time, to grant the alternative relief sought by DGAP to approve the DGAP Easement Agreement. The record is not sufficiently developed for me to conduct such a detailed analysis.

[48] As noted, materials were filed at the last moment. This included, amongst other things, DGAP’s Easement Agreement. Several other documents critical to the motion were filed in the few days prior and, in some instances, the evening before the motion. Namely, Mr. Riley’s affidavit and supplementary affidavits by Mr. Kestenbaum and Andrew Guizzetti, the President and CEO of Empire Communities Corp. (“Empire”), the parent company of DGAP.

[49] The timing and volume of the filings made it impossible to not only set aside appropriate time to hear submissions with respect to the details of DGAP Easement Agreement, but to also properly consider the dispute between the parties concerning the reciprocal easements. For those reasons, I am in no position to determine the disputes between the parties concerning the reciprocal easements or approve the DGAP Easement Agreement.

[50] That said, I am satisfied, however, that an impasse has arisen.

[51] Stelco has had a significant amount of time to settle the provisions of Article 4.1(m) with not only DGAP, but the Monitor too. Until very recently, it has taken few, if any, steps to do so. It cannot be ignored that Stelco’s reluctance has occurred in a situation where it views DGAP’s proposed development as an existential threat and has been found to have breached the Reconveyance Agreement.

[52] The Court’s outstanding order for specific performance of the Reconveyance Parcel also cannot be ignored. In the December Reasons, I ordered that Stelco reconvey the Reconveyance Parcel to the LandCo Vendor. I held that, given Stelco’s breach of the Reconveyance Agreement, the uniqueness of the Reconveyance Parcel justified the remedy of specific performance (see paras. 232-240). The Court of Appeal agreed, finding that Stelco “ha[d] not made an arguable case for interfering with … the decision to grant specific performance”: U.S. Steel Canada Inc. (Re), 2023 ONCA 277, at para. 25. This order remains outstanding as do Stelco’s obligations to reconvey the Reconveyance Parcel to LandCo’s nominee.

[53] Although current CEO to CEO discussions have only taken place for several weeks, it bears noting that they were discontinued despite this Court’s order to negotiate. A subsequent order had to be made. Additionally, negotiations are not going well. Without casting aspersions in either direction, I accept DGAP’s submission that Stelco’s insistence that future homeowners sign the release and that DGAP agree to an easement allowing Stelco to sequester CO2 from its operations under DGAP’s land has brought any hopes of an agreement concerning easements to a standstill.

[54] In particular, although the issue will have to be determined at a later date, I accept DGAP’s submissions that Stelco’s current demand that DGAP enter into a binding agreement to permit Stelco to sequester CO2 from its operations under the Reconveyance Parcel as well as two other parcels to be purchased by DGAP is a relatively new demand by Stelco which, in DGAP’s view, poses significant environmental, geological and health risks as it is very much unknown as to whether carbon can be stored under residential areas and the effects of same. Ontario legislation outlawed sequestration until March 22, 2023. Such an easement request, in DGAP’s view, further jeopardizes its residential plans and cannot be overcome unless withdrawn. There is no indication that Stelco plans to withdraw this request, or for that matter, the issue of having future homeowners execute waivers.

The Path Forward

[55] Given my above findings, I am of the view that court assistance is permissible and necessary to conclude the Reconveyance Agreement in a timely way for the benefit of Stelco, DGAP, Empire and the Stakeholders. The Stakeholders remain in the CCAA proceedings and will continue to do so at least up until the SPA is completed. Thereafter, as noted, the Stakeholders have a vested interest in Stelco’s future.

[56] In order to provide a timely, efficient and fair path forward, the following steps will occur:

(i) The August 2, 2023 motion date set aside for DGAP’s motion to enforce the DGAP Sale Agreement before Penny J. will be vacated. The DGAP Sale Agreement motion should not be heard until the Reconveyance Agreement is settled. Instead, on August 2, 2023, a case conference will be held to schedule, subject to Penny J.’s discretion, a motion to deal with the easement dispute and determine all issues concerning Article 4.1(m).

(ii) In the interim, the CEO to CEO discussions are to continue as previously ordered, subject to further order of Penny J., who assumed carriage of this matter on July 1, 2023. Of course, if difficulties arise, the parties can return to the Court for further direction.

(iii) The outside date concerning the completion of the DGAP Sale Agreement is stayed pending further order of the Court. The Monitor suggested a two-month extension from the current expiry date of August 14, 2023. Neither Stelco nor the Stakeholders opposed this. DGAP, however, sought a stay since it was concerned that the outside date may expire before motions could be heard concerning the Reconveyance Agreement and the DGAP Sale Agreement. I share DGAP’s concerns given the history of this matter, including Stelco’s breach of the Reconveyance Agreement, the current impasse and the historical failure to pursue the issue of easements in a timely manner.

[57] The aforementioned structure, in my view, allows for sensible negotiations to continue as urged upon me by Stelco while further providing certainty and finality in a timely but reasonable fashion. Certainly, it allows Stelco and DGAP sufficient time to determine if the current impasse can be resolved. Past that, it is not reasonable to allow for negotiations of an indeterminate length. Such inaction runs contrary to the spirit and intent of the CCAA.

Disposition

[58] DGAP’s motion is dismissed.

[59] An order shall therefore go, as per paragraph 56, implementing the schedule imposed and the steps to be carried out.

McEwen J. Released: July 6, 2023

References

[1] U.S. Steel Canada Inc. et al. v. The United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al., 2022 ONSC 6993.

[2] U.S. Steel Canada Inc. et al. v. The United Steel Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union et al., 2023 ONSC 2579.

[3] For ease of reference, I will refer to the Monitor and LRO collectively as the “Monitor”.

[4] Stelco’s motion for leave to appeal was dismissed with reasons reported at 2023 ONCA 277.

[5] DGAP has sought leave to appeal the May Endorsement.

[6] Even though Article 4.1(m) refers to both shared facilities and/or reciprocal easement agreements, the dispute in question only concerns reciprocal easement agreements.