LEXPERT MAGAZINE
|
JUNE 2016 35
| RECENT LITIGATION OF IMPORTANCE |
USS's claims was held in January 2016. In its
decision, the Court rejected the objections
and confirmed all of USS's unsecured claims
and virtually all of its secured claims.
Justice H. Wilton-Siegel applied a two-
part test for determining how the advances
made by USS to USSC should be character-
ized, which asks: 1) Did the lender subjec-
tively expect to be repaid principal and in-
terest out of the cash flows of the borrower
over the term of the loans at the time the loan
advances were made? and 2) Was the lender's
expectation objectively reasonable?
e Court concluded that on a balance of
probabilities, at the time of the advances un-
der the loan agreements USS expected USSC
would repay interest and principal in accor-
dance with the loan terms, and that USS's
expectations in that regard were reasonable.
As such, the Court confirmed these claims as
debt claims.
e Court (with the exception of one
claim that remains to be determined) also
confirmed USS's secured claims.
e decision is under appeal.
United States Steel Corporation was rep-
resented by Blake, Cassels & Graydon LLP
(litigation) with a team that included Mi-
chael Barrack, Jeff Galway, Kiran Patel and
Max Shapiro.
United States Steel Corporation was also
represented by ornton Grout Finnigan
LLP (insolvency) with a team including
Robert ornton and Michael Shakra.
e Province of Ontario was represented
by Alan Mark, Peter Ruby, Tamryn Jacob-
son, Logan Willis and Jesse-Ross Cohen of
Goodmans LLP.
USW and Locals 1005 and 8782 were rep-
resented by Gordon Capern, Kris Borg-Ol-
ivier and Denise Cooney of Paliare Roland
Rosenberg Rothstein LLP.
Non-unionized Active Employees and Re-
tirees were represented by Andrew Hatnay,
Barbara Walancik and Adrian Scotchmer of
Koskie Minsky LLP.
U.S. Steel Canada Inc. was represented by
Sharon Kour of McCarthy Tétrault LLP.
e Monitor Ernst & Young Inc. was rep-
resented by Robert Staley, Jonathan Bell and
William Bortolin of Bennett Jones LLP.
NOTEWORTHY DECISIONS
AS SELECTED BY LEXPERT
SIGNIFICANT BUSINESS LAW DECISIONS ORDERED
BY MOST FREQUENTLY VIEWED IN WESTLAWNEXT®CANADA
1) Hole v. Hole, 2016 CarswellAlta 145
>
Alberta Court of Appeal
>
Counsel for
Appellants (Plaintiffs): James McFadyen, QC, Parlee McLaws LLP
>
Counsel for Re-
spondents (Defendants): William Kenny, QC, Debra Lister, Miller omson LLP
Contracts — Formation – Certainty – Interpretation – Limitations
e Appeals Court (Justice Ronald Berger, Justice J.D. Bruce McDonald, and Justice
Frederica Schutz) relied on a number of principles of contractual interpretation and
set aside the trial decision.
e Court examined whether the parties intended to create a legally enforceable
contract, whether the Letter of Understanding (LOU) was too uncertain to be en-
forceable and when the limitation period for breach of contract arose.
e Court held that the trial judge applied incorrect principles of contractual in-
terpretation to the LOU by giving weight to the subjective intentions of the parties
and to circumstances that came to light only aer the contract was formed.
e Court held that the LOU was not too uncertain to be enforceable and that
the essential terms of the LOU could be ascertained. An otherwise enforceable agree-
ment did not fail for uncertainty just because some of the words might be vague or
hard to interpret. Uncertain terms that were not an essential part of the contract
would not be fatal to its enforcement. Uncertain or meaningless terms that were sub-
sidiary could be severed.
e Court held that the trial judge erred in finding that the limitation period had
expired and determining when the limitation period commenced. e trial judge ap-
peared to have treated this situation as one of repudiation or anticipatory breach. e
trial judge did not consider whether the plaintiffs elected to accept or reject the repu-
diation. ere was no evidence that the plaintiffs clearly and unequivocally accepted
the repudiation. e plaintiffs could not have known of their claim until payment
under the LOU came due and the defendants refused to honour it.
2) Keenan v. Canac Kitchens Ltd., 2016 CarswellOnt 965
>
Ontario Court of
Appeal
>
Counsel for Appellant: Paul Boshyk of McMillan LLP
>
Counsel for Re-
spondents: Bram Lecker and Matthew Fisher of Leckerslaw Professional Corporation
Labour and employment law — Employment law – Nature of employment relationship – Relation-
ships distinct from employment relationship – Independent contractor – Termination and dismissal
– Notice – Entitlement
Justice Eileen Gillese, Justice Jean MacFarland and Justice Katherine van Rensburg
ruled on the judgment.
3) Pickering Square Inc. v. Trillium College Inc., 2016 CarswellOnt 2929
>
Ontario Court of Appeal
>
Counsel for Appellant: Courtney Raphael of Aird & Ber-
lis LLP
>
Counsel for Respondent: Alan Dryer and Orly Kahane-Rapport of Sher-
man Brown Dryer Gold
Civil practice and procedure — Limitation of actions – Actions in contract or debt – Statutory
limitation periods – When statute commences to run – Miscellaneous
Justice George Strathy, Justice Harry LaForme and Justice Grant Huscro ruled on
the judgment.
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