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Big Suits
Slaght, QC,
Ronald G.
Lenczner Slaght Royce
Smith Griffin LLP
(416) 865-2929
rslaght@litigate.com
In addition to a formid-
able reputation in com-
mercial and securities
litigation, Mr. Slaght has
built an eclectic practice
based on his experience
in administrative law,
real property disputes
and class actions.
Stainsby, Jonathan
Aitken Klee LLP
(647) 317-6868
jstainsby@aitkenklee.com
Mr. Stainsby, a founding
partner of the firm's
Toronto office, acts in
complex patent, trade-
mark, copyright and
commercial matters in
a variety of industries
and fields before all
levels of the courts,
including the Supreme
Court of Canada.
Swan, Richard B.
Bennett Jones LLP
(416) 777-7479
swanr@bennettjones.com
Mr. Swan is co-Chair
of Bennett Jones's
Commercial Litigation
practice group. He
focuses on corpor-
ate, commercial and
insolvency litigation,
including shareholder,
oppression, contract,
injunction, arbitration
and estate disputes.
Smith, Glenn
Lenczner Slaght Royce
Smith Griffin LLP
(416) 865-2927
gsmith@litigate.com
Mr. Smith has a diverse
commercial litigation
practice focusing on
class actions and insur-
ance coverage including
coverage in product
liability, D&O and
environmental cases.
Staley, Robert W.
Bennett Jones LLP
(416) 777-4857
staleyr@bennettjones.com
Mr. Staley's practice
focuses on complex
securities litigation,
class actions and share-
holder activism. Peer
reviews recognize him
for his "skilled handling
of complex cases,"his
"excellent courtroom
presence" and as
"a masterful
strategic thinker."
Tavender, QC,
E. David D.
Dentons Canada LLP
(403) 268-7010
david.tavender@dentons.com
Mr. Tavender has exten-
sive experience in civil
commercial litigation
and ADR. He has con-
ducted numerous major
trials and appeals. He is
a mediator and arbitra-
tor with ADR Chambers,
and has participated
in investigations
and inquiries.
of the limited partnership. e relationship deteriorated
when Veresen asserted that the option had expired as a result
of fundamental changes to the project and, further, refused
to provide EFG with documents to verify the option price or
its likely economic value.
EFG commenced an application in the Ontario Superior
Court of Justice to confirm its rights with respect to the proj-
ect. e application was heard by Justice Michael Penny in
January 2015.
Justice Penny granted EFG's application, declaring that
the option was still valid and finding that the option agree-
ment contained an implied obligation on Veresen to disclose
information to enable EFG to determine what the option is
worth (2015 ONSC 692).
Veresen appealed the implied term issue to the Court of
Appeal. e appeal was heard on May 27, 2015, by Justices
Pardu, Simmons and Epstein.
e Court of Appeal found that a contractual term may
be implied "on the basis of the presumed intentions of the
parties where necessary to give business efficacy to the con-
tract or where it meets the 'officious bystander test,'" quoting
M.J.B. Enterprises Ltd. v. Defence Construction (1951) Ltd.,
[1999] 1 S.C.R. 619 (M.J.B. Enterprises). e Court also
relied on the recent Supreme Court of Canada decision of
Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53,
noting that "the issue of implication of contractual terms
raises questions of mixed law and fact, as would interpreta-
tion of the contract, and the same standard of review should
apply, palpable and overriding error, unless extricable errors
of law are evident."
e Court of Appeal ultimately upheld the application
judge's decision. e Court of Appeal found that interpret-
ing the written agreement in a manner where EFG would
blindly exercise the option without knowing whether it
would make economic sense to do so would frustrate the
business purpose of the agreement. e Court of Appeal
added that the application judge did not depart from the
proper test by referring to what reasonable parties would or
would not have agreed.
e application judge's finding that no reasonable person
would have exercised the option without disclosure sup-
ported, in the Court of Appeal's view, the finding that such
disclosure was necessary for the purposes of business efficacy,
but held that such an analysis should be rooted in the actual
relationship between the parties and its specific context as
directed by the Supreme Court in M.J.B. Enterprises.
Lastly, the Court of Appeal accepted the common doctri-
nal underpinning between good faith and the implication
of contractual terms as a matter of business efficacy. Both
legal devices are used to fill gaps and deal with aspects of
the relationship that have not been specifically addressed by
the parties.
EFG was represented by Norton Rose Fulbright Canada
LLP with a team composed of Orestes Pasparakis, Rahool
Agarwal and Stephen Taylor.
Veresen was represented by Osler, Hoskin & Harcourt
LLP. e Osler team was composed of Mark Gelowitz and
Eric Morgan.
PDM Entertainment Inc. v. Three Pines Creations
Inc. and Louise Penny, 2015 ONCA 48
Decision date: June 29, 2015
On June 29, 2015, the Ontario Court of Appeal dismissed
an appeal by best-selling Canadian author Louise Penny and
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