48 LEXPERT MAGAZINE
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JANUARY/FEBRUARY 2018
flags" that caused the appeal court to reject
the transaction. ese included the poten-
tial conflict created by Morgan Stanley's
success fee; the passivity of the special
committee overseeing the transaction; the
failure to retain a second, independent ad-
visor; the lack of information provided to
shareholders; and a CEO leading the nego-
tiations who stood to gain some $35 mil-
lion in termination pay and share awards if
the deal went through.
But Wendy Berman of Cassels Brock
& Blackwell LLP, who represented Mu-
lacek, says that, going forward, the impact
of the decisions will not be limited to this
"perfect storm" of facts. "What the court
of appeal was saying was that it would not
regard as independent an advisor who was
being paid in a way that included a success
fee," she says. "Without that independent
advice, the court cannot give deference to
the board's work."
As for the extent of disclosure now re-
quired, Berman believes that the decisions
don't set out a bright line. "What they say
is that the board can't approach the issue of
disclosure in a perfunctory way," she says.
"Directors must ask themselves how much
disclosure is necessary and the answer will
vary with the nature of the deal."
09
Yarmouth (District) v.
Nickerson, 2017 NSCA 21
e Nova Scotia Court of Appeal, in a rul-
ing that may impact the province's new
limitation statute, has held that the previ-
ous statute could not be used to extend a
statute-specific time limit. "Previously, it
was commonly believed that our general
limitation statute could be used to extend
specific limitation periods found in a va-
riety of statutes," says Ian Dunbar in Mc-
Innes Cooper's Halifax office, who repre-
sented the District of Yarmouth in Yar-
mouth v. Nickerson. "But this decision says
that's not the case, and it potentially applies
to a wide range of provincial legislation."
IAN DUNBAR
McInnes Cooper
"PREVIOUSLY, IT WAS COMMONLY
BELIEVED THAT OUR GENERAL
LIMITATION STATUTE COULD BE
USED TO EXTEND SPECIFIC LIMITA-
TION PERIODS FOUND IN A VARIETY
OF STATUTES. BUT THIS DECISION
SAYS THAT'S NOT THE CASE,
AND IT POTENTIALLY APPLIES
TO A WIDE RANGE OF
PROVINCIAL LEGISLATION."
Nova Scotia's Municipal Government
Act sets a six-year limit for suing municipal-
ities. When the purchasers of a house sued
the vendors for soil subsidence damage to
the home, one of the vendors third-partied
the District of Yarmouth, claiming negli-
gence in issuing the building permit and in
inspecting the lot and the construction.
But the third-party claim was brought
more than six years aer the building per-
mit was issued. When Yarmouth moved
for summary judgment, the vendor sought
an extension under the Limitations of Ac-
tions Act. e trial judge granted the ex-
tension but the appeal court held that the
phrase "notwithstanding the Limitations
of Actions Act," found in the Municipal Act
in relation to the six-year limit, precluded
the granting of an extension.
Still, it's not quite clear what impact
Yarmouth will have on the new general
limitations statute, which came into ef-
fect in 2015. "e new law applies discov-
erability principles to all actions, which
is something we didn't have before," says
Barry Mason of Pressé Mason Barristers
& Solicitors in Bedford, Nova Scotia. "It's
hard to say how this decision will interact
with discoverability."
10
Ammazzini v. Anglo
American, 2016 SKCA 164
Given the general muddle surrounding
national class actions in Canada, the Sas-
katchewan Court of Appeal judgment in
Ammazzini v. Anglo American serves only
to stir the pot further — and in a way that
makes life harder for defendants.
e case defines the rights of an out-of-
province representative plaintiff at a cer-
tification hearing in Saskatchewan. e
province's Class Actions Act allows such a
plaintiff to "make submissions." What this
means, the appeal court said, is that an out-
of-province plaintiff could make oral and
written submissions and file evidence. But
he could not apply for a stay of proceedings.
e issue arose when Kirk Brant, the
representative plaintiff in a multi-juris-
dictional Ontario proceeding, applied for
an order staying the Saskatchewan action
pending a certification decision in Ontario.
Aer the judge granted the stay, the repre-
sentative plaintiffs in the Saskatchewan ac-
tion appealed.
Katherine Kay of Stikeman Elliott LLP
in Toronto, who represented Anglo Amer-
ican, believes that, going forward, the in-
ability of out-of-province plaintiffs to seek
a stay will impose a greater onus on defen-
dants looking to convince Saskatchewan
courts that a stay pending the resolution of
class action proceedings in other provinces
should be granted.
"Normally, it's the consortium of law
firms representing the plaintiffs who take
the lead in seeking stays pending certifica-
tion or settlement approval in another ju-
risdiction, but now there's greater pressure
on defendants to carry the ball," she says.
Sharon Matthews of Camp Fiorante
Matthews Mogerman LLP in Vancouver
represented Brant, along with partner Rei-
dar Mogerman. Matthews says, "Ammazzi-
ni does make things a bit awkward, but it
doesn't throw the whole process into disar-
ray because the out-of-province representa-
tive plaintiff has the right to participate in
the stay application, even if she can't make
the application herself."
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