32 LEXPERT
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2017
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WWW.LEXPERT.CA
O'Neill, Louis-Martin Davies Ward Phillips
& Vineberg LLP (514) 841-6547 lmoneill@dwpv.com
Mr. O'Neill specializes in high-stakes litigation and special situations.
His practice embraces a broad spectrum of M&A, securities, corporate/
commercial, competition and insolvency disputes, as well as white-collar
investigations and defence work. He has been involved in virtually every
recent major M&A and securities litigations in Québec.
O'Connor, David F. Roy O'Connor LLP
(416) 350-2474 dfo@royoconnor.ca
Mr. O'Connor is a founding partner in Roy O'Connor LLP. He is recognized by
Benchmark as a star in class actions and commercial litigation, and was a
finalist for Class Action Litigator of the Year in 2015 and 2017. He was as a
finalist for the Top 25 Most Influential Lawyers in Canada in 2015 and 2016
(Canadian Lawyer magazine). He is also ranked by Lexpert and Chambers
in the area of Class Actions.
Nuss, QC, AdE, The Hon. Joseph R. Woods LLP
(514) 982-5010 jnuss@woods.qc.ca
A former Justice of the Quebec Court of Appeal, he is now Senior Counsel
at Woods LLP. He concentrates his practice in the fields of domestic and
international arbitration and mediation. He is a lecturer at conferences on
these subjects. He is also called on to give his opinion, as an expert witness,
on Québec law.
Nitikman, Joel A. Dentons Canada LLP
(604) 443-7115 joel.nitikman@dentons.com
Mr. Nitikman focuses on resolving tax disputes. He has extensive experience
in federal and provincial income tax and commodity tax litigation. He
has acted as counsel in numerous tax cases at all levels of court, both
provincially and federally. He has also settled many cases out of court
at the pre-assessment or Objection stage.
Naiberg, Richard E. Goodmans LLP
(416) 597-4247 rnaiberg@goodmans.ca
Partner in the IP and Litigation Groups, Mr. Naiberg's practice focuses on
IP litigation. He has been counsel on a number of cases involving patent,
trademarks and copyrights. Extensive experience in disputes under the
Patented Medicines (Notice of Compliance) Regulations. Provides strategic
advice on the development, acquisition, sale and protection of technology
and IP assets.
Morse, Jerome R. Morse Shannon LLP
(416) 941-5867 jmorse@morseshannon.com
Mr. Morse is a Fellow of the American College of Trial Lawyers. His practice
includes corporate and commercial insurance litigation, professional
negligence, medical negligence, product liability and personal injury.
He is rated by Lexpert in commercial insurance, professional liability,
medical negligence, product liability and personal injury.
LEXPERT-RANKED LAWYERS
of-control provision requiring Portco's consent
to a change of control of Algoma.
e $171.5 million payable by Portco to Al-
goma under the MPSA was primarily funded
by a $150-million term loan by GIP Primus, LP
and Brightwood Loan Services LLC (collectively,
GIP) to Portco. e term loan, secured by all of
Portco's assets, was structured so that Portco's rev-
enue under the Cargo Handling Agreement, less
its payments to Algoma under the shared services
agreement, would provide Portco with a consistent
stream of revenue to repay GIP.
e structure of the Port Transaction was largely
driven by the stipulations of GIP, which was not
prepared to lend directly to Algoma given its re-
cent insolvencies. GIP would only lend to an en-
tity with sufficient assets that were separate and
distinct from Algoma, namely Portco.
In 2015, Algoma was granted protection from
its creditors under the Companies' Creditors Ar-
rangement Act. In 2016, Algoma's monitor was au-
thorized to commence an oppression proceeding
against EGFL, Portco and other related entities
under section 241 of the Canada Business Corpora-
tions Act in relation to the Port Transaction. e
monitor sought to set this aside, alleging that it
was unfairly prejudicial to and unfairly disregarded
the interest of Algoma's trade creditors, employees,
pensioners and retirees.
GIP was granted standing as a party, as the relief
sought by the monitor threatened GIP's security in
its $150-million loan to Portco.
At the outset of the trial, the defendants and
GIP moved to strike the claim on the basis that: (i)
the monitor, an officer of the court, should not be
permitted to advance the claim; and (ii) the action
was properly a derivative action, which cannot be
commenced without leave.
Ontario Superior Court Justice Frank New-
bould dismissed the motion, holding that: (i) a
CCAA monitor, on the same basis as a trustee
in bankruptcy, can be granted complainant
status to advance an oppression claim; and (ii)
this was not a derivative action, as the relief
sought by the monitor was not solely for the
benefit of the corporation.
On the allegations of oppression, Justice New-
bould held that the expectations relied upon can
be established by direct evidence or by reasonable
inferences drawn from circumstantial evidence,
finding that the reasonable expectations of Al-
goma's trade creditors, etc., were that "Algoma
would not deal with a critical asset like the Port in
such a way as to lose long-term control over such
a strategic asset to a related party on terms that
permitted the related party to veto and control
Algoma's ability to do significant transactions or
restructure and which gave unwarranted value to
the third party."
