Help

Supreme Court Judgments

Decision Information

Decision Content

 

                                                 SUPREME COURT OF CANADA

 

 

Citation:  BCE Inc. v. 1976 Debentureholders,

[2008] 3 S.C.R. 560, 2008 SCC 69

 

Date of Judgment:

20080620

Reasons Delivered: 20081219

Docket:  32647

 

Between:

BCE Inc. and Bell Canada

Appellants / Respondents on cross‑appeals

and

A Group of 1976 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Manitoba Civil Service Superannuation Board, TD Asset Management Inc. and Manulife Financial Corporation

 

A Group of 1996 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Insurance (Canada) Limited, CIBC Global Asset Management Inc., Manitoba Civil Service Superannuation Board and TD Asset Management Inc.

 

A Group of 1997 Debentureholders composed of:  Addenda Capital Management Inc., Manulife Financial Corporation, Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Wawanesa Life Insurance Company, TD Asset Management Inc., Franklin Templeton Investments Corp. and Barclays Global Investors Canada Limited

Respondents / Appellants on cross‑appeals

and

Computershare Trust Company of Canada

and CIBC Mellon Trust Company

Respondents

- and -

Director Appointed Pursuant to the CBCA, Catalyst Asset

Management Inc. and Matthew Stewart

Interveners

 

AND BETWEEN:

6796508 Canada Inc.

Appellant / Respondent on cross‑appeals

and


A Group of 1976 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Manitoba Civil Service Superannuation Board, TD Asset Management Inc. and Manulife Financial Corporation

 

A Group of 1996 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Insurance (Canada) Limited, CIBC Global Asset Management Inc., Manitoba Civil Service Superannuation Board and TD Asset Management Inc.

 

A Group of 1997 Debentureholders composed of:  Addenda Capital Management Inc., Manulife Financial Corporation, Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Wawanesa Life Insurance Company, TD Asset Management Inc., Franklin Templeton Investments Corp. and Barclays Global Investors Canada Limited

Respondents / Appellants on cross‑appeals

and

Computershare Trust Company of Canada

and CIBC Mellon Trust Company

Respondents

‑ and ‑

Director Appointed Pursuant to the CBCA, Catalyst Asset

Management Inc. and Matthew Stewart

Interveners

 

Coram: McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Abella and Charron JJ.

 

 

Reasons for Judgment:

(paras. 1 to 167)

 

 

The Court

* Bastarache J. joined in the judgment of June 20, 2008, but took no part in these reasons for judgment.

 

______________________________


BCE Inc. v. 1976 Debentureholders, [2008] 3 S.C.R. 560, 2008 SCC 69

 

BCE Inc. and Bell Canada                                   Appellants/Respondents on cross‑appeals

 

v.

 

A Group of 1976 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Manitoba Civil Service Superannuation Board, TD Asset Management Inc. and Manulife Financial Corporation

 

A Group of 1996 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Insurance (Canada) Limited, CIBC Global Asset Management Inc., Manitoba Civil Service Superannuation Board and TD Asset Management Inc.

 

A Group of 1997 Debentureholders composed of:  Addenda Capital Management Inc., Manulife Financial Corporation, Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Wawanesa Life Insurance Company, TD Asset Management Inc., Franklin Templeton Investments Corp. and Barclays Global Investors Canada Limited Respondents/Appellants on cross‑appeals

 

and

 

Computershare Trust Company of Canada

and CIBC Mellon Trust Company                                                                    Respondents

 

and

 


Director Appointed Pursuant to the CBCA, Catalyst Asset

Management Inc. and Matthew Stewart                                                            Interveners

 

- and -

 

6796508 Canada Inc.                                              Appellant/Respondent on cross‑appeals

 

v.

 

A Group of 1976 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Manitoba Civil Service Superannuation Board, TD Asset Management Inc. and Manulife Financial Corporation

 

A Group of 1996 Debentureholders composed of:  Aegon Capital Management Inc., Addenda Capital Inc., Phillips, Hager & North Investment Management Ltd., Sun Life Insurance (Canada) Limited, CIBC Global Asset Management Inc., Manitoba Civil Service Superannuation Board and TD Asset Management Inc.

 

A Group of 1997 Debentureholders composed of:  Addenda Capital Management Inc., Manulife Financial Corporation, Phillips, Hager & North Investment Management Ltd., Sun Life Assurance Company of Canada, CIBC Global Asset Management Inc., Her Majesty the Queen in Right of Alberta, as represented by the Minister of Finance, Wawanesa Life Insurance Company, TD Asset Management Inc., Franklin Templeton Investments Corp. and Barclays Global Investors Canada Limited Respondents/Appellants on cross‑appeals

 

and

 

Computershare Trust Company of Canada

and CIBC Mellon Trust Company                                                                    Respondents


and

 

Director Appointed Pursuant to the CBCA, Catalyst Asset

Management Inc. and Matthew Stewart                                                            Interveners

 

Indexed as:  BCE Inc. v. 1976 Debentureholders

 

Neutral citation:  2008 SCC 69.

 

File No.:  32647.

 

2008:  June 17; 2008:  June 20.

 

Reasons delivered:  December 19, 2008.

 

Present:  McLachlin C.J. and Bastarache,* Binnie, LeBel, Deschamps, Abella and Charron JJ.

 

on appeal from the court of appeal for quebec

 


Commercial law — Corporations — Oppression — Fiduciary duty of directors of corporation to act in accordance with best interests of corporation — Reasonable expectation of security holders of fair treatment — Directors approving change of control transaction which would affect economic interests of security holders — Whether evidence supported reasonable expectations asserted by security holders — Whether reasonable expectation was violated by conduct found to be oppressive, unfairly prejudicial or that unfairly disregards a relevant interest — Canada Business Corporations Act, R.S.C. 1985, c. C‑44 , ss. 122(1) (a), 241 .

 

Commercial law — Corporations — Plan of arrangement — Proposed plan of arrangement not arranging rights of security holders but affecting their economic interests — Whether plan of arrangement was fair and reasonable — Canada Business Corporations Act, R.S.C. 1985, c. C‑44 , s. 192 .

 

At issue is a plan of arrangement that contemplates the purchase of the shares of BCE Inc. (“BCE”) by a consortium of purchasers (the “Purchaser”) by way of a leveraged buyout.  After BCE was put “in play”, an auction process was held and offers were submitted by three groups.  All three offers contemplated the addition of a substantial amount of new debt for which Bell Canada, a wholly owned subsidiary of BCE, would be liable.  BCE’s board of directors found that the Purchaser’s offer was in the best interests of BCE and BCE’s shareholders.  Essentially, the arrangement provides for the compulsory acquisition of all of BCE’s outstanding shares.  The price to be paid by the Purchaser represents a premium of approximately 40 percent over the market price of BCE shares at the relevant time.  The total capital required for the transaction is approximately $52 billion, $38.5 billion of which will be supported by BCE.  Bell Canada will guarantee approximately $30 billion of BCE’s debt.  The Purchaser will invest nearly $8 billion of new equity capital in BCE.


The plan of arrangement was approved by 97.93 percent of BCE’s shareholders, but was opposed by a group of financial and other institutions that hold debentures issued by Bell Canada.  These debentureholders sought relief under the oppression remedy under s. 241  of the Canada Business Corporations Act  (“CBCA ”).  They also alleged that the arrangement was not “fair and reasonable” and opposed court approval of the arrangement under s. 192  of the CBCA .  The crux of their complaints is that, upon the completion of the arrangement, the short‑term trading value of the debentures would decline by an average of 20 percent and could lose investment grade status.

 

The Quebec Superior Court approved the arrangement as fair and dismissed the claim for oppression.  The Court of Appeal set aside that decision, finding the arrangement had not been shown to be fair and held that it should not have been approved.  It held that the directors had not only the duty to ensure that the debentureholders’ contractual rights would be respected, but also to consider their reasonable expectations which, in its view, required directors to consider whether the adverse impact on debentureholders’ economic interests could be alleviated.  Since the requirements of s. 192  of the CBCA  were not met, the court found it unnecessary to consider the oppression claim.  BCE and Bell Canada appealed the overturning of the trial judge’s approval of the plan of arrangement, and the debentureholders cross‑appealed the dismissal of the claims for oppression.

 

Held:  The appeals should be allowed and the cross‑appeals dismissed.

 


The s. 241  oppression action and the s. 192  requirement for court approval of a change to the corporate structure are different types of proceedings, engaging different inquiries.  The Court of Appeal’s decision rested on an approach that erroneously combined the substance of the s. 241  oppression remedy with the onus of the s. 192  arrangement approval process, resulting in a conclusion that could not have been sustained under either provision, read on its own terms.  [47] [165]

 

1.       The Section 241  Oppression Remedy

 

The oppression remedy focuses on harm to the legal and equitable interests of a wide range of stakeholders affected by oppressive acts of a corporation or its directors.  This remedy gives a court a broad jurisdiction to enforce not just what is legal but what is fair.  Oppression is also fact specific:  what is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play.  [45] [58‑59]

 


In assessing a claim of oppression, a court must answer two questions:  (1) Does the evidence support the reasonable expectation asserted by the claimant?  and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression”, “unfair prejudice” or “unfair disregard” of a relevant interest?  For the first question, useful factors from the case law in determining whether a reasonable expectation exists include:  general commercial practice; the nature of the corporation; the relationship between the parties; past practice; steps the claimant could have taken to protect itself; representations and agreements; and the fair resolution of conflicting interests between corporate stakeholders.  For the second question, a claimant must show that the failure to meet the reasonable expectation involved unfair conduct and prejudicial consequences under s. 241 .  [68] [72] [89] [95]

 

Where conflicting interests arise, it falls to the directors of the corporation to resolve them in accordance with their fiduciary duty to act in the best interests of the corporation.  The cases on oppression, taken as a whole, confirm that this duty comprehends a duty to treat individual stakeholders affected by corporate actions equitably and fairly.  There are no absolute rules and no principle that one set of interests should prevail over another.  In each case, the question is whether, in all the circumstances, the directors acted in the best interests of the corporation, having regard to all relevant considerations, including — but not confined to — the need to treat affected stakeholders in a fair manner, commensurate with the corporation’s duties as a responsible corporate citizen.  Where it is impossible to please all stakeholders, it will be irrelevant that the directors rejected alternative transactions that were no more beneficial than the chosen one.  [81‑83]

 


Here, the debentureholders did not establish that they had a reasonable expectation that the directors of BCE would protect their economic interests by putting forth a plan of arrangement that would maintain the investment grade trading value of their debentures.  The trial judge concluded that this expectation was not made out on the evidence, given the overall context of the relationship, the nature of the corporation, its situation as the target of a bidding war, the fact that the claimants could have protected themselves against reductions in market value by negotiating appropriate contractual terms, and that any statements by Bell Canada suggesting a commitment to retain investment grade ratings for the debentures were accompanied by warnings precluding such expectations.  The trial judge recognized that the content of the directors’ fiduciary duty to act in the best interests of the corporation was affected by the various interests at stake in the context of the auction process, and that they might have to approve transactions that were in the best interests of the corporation but which benefited some groups at the expense of others.  All three competing bids required Bell Canada to assume additional debt.  Under the business judgment rule, deference should be accorded to the business decisions of directors acting in good faith in performing the functions they were elected to perform.  In this case, there was no error in the principles applied by the trial judge nor in his findings of fact.  [96‑100]

 


The debentureholders had also argued that they had a reasonable expectation that the directors would consider their economic interests in maintaining the trading value of the debentures.  While the evidence, objectively viewed, supports a reasonable expectation that the directors would consider the position of the debentureholders in making their decisions on the various offers under consideration, it is apparent that the directors considered the interests of debentureholders, and concluded that while the contractual terms of the debentures would be honoured, no further commitments could be made.  This fulfilled the duty of the directors to consider the debentureholders’ interests and did not amount to “unfair disregard” of the interests of debentureholders.  What the claimants contend is, in reality, an expectation that the directors would take positive steps to restructure the purchase in a way that would provide a satisfactory price to shareholders and preserve the high market value of the debentures.  There was no evidence that it was reasonable to suppose this could be achieved, since all three bids involved a substantial increase in Bell Canada’s debt.  Commercial practice and reality also undermine their claim.  Leveraged buyouts are not unusual or unforeseeable, and the debentureholders could have negotiated protections in their contracts.  Given the nature and the corporate history of Bell Canada, it should not have been outside the contemplation of debentureholders that plans of arrangements could occur in the future.  While the debentureholders rely on the past practice of maintaining the investment grade rating of the debentures, the events precipitating the leveraged buyout transaction were market realities affecting what were reasonable practices.  No representations had been made to debentureholders upon which they could reasonably rely.  [96] [102] [104‑106] [108‑110]

 

With respect to the duty on directors to resolve the conflicting interests of stakeholders in a fair manner that reflected the best interests of the corporation, the corporation’s best interests arguably favoured acceptance of the offer at the time.  The trial judge accepted the evidence that Bell Canada needed to undertake significant changes to be successful, and the momentum of the market made a buyout inevitable.  Considering all the relevant factors, the debentureholders failed to establish a reasonable expectation that could give rise to a claim for oppression.  [111‑113]

 

2.  The Section 192  Approval Process

 


The s. 192  approval process is generally applicable to change of control transactions where the arrangement is sponsored by the directors of the target company and the goal is to require some or all shareholders to surrender their shares.  The approval process focuses on whether the arrangement, viewed objectively, is fair and reasonable.  Its purpose is to permit major changes in corporate structure to be made while ensuring that individuals whose rights may be affected are treated fairly, and its spirit is to achieve a fair balance between conflicting interests.  In seeking court approval of an arrangement, the onus is on the corporation to establish that (1) the statutory procedures have been met; (2) the application has been put forth in good faith; and (3) the arrangement is “fair and reasonable”.  [119] [126] [128] [137]

 

To approve a plan of arrangement as fair and reasonable, courts must be satisfied that (a) the arrangement has a valid business purpose, and (b) the objections of those whose legal rights are being arranged are being resolved in a fair and balanced way. Whether these requirements are met is determined by taking into account a variety of relevant factors, including the necessity of the arrangement to the corporation’s continued existence, the approval, if any, of a majority of shareholders and other security holders entitled to vote, and the proportionality of the impact on affected groups.  Where there has been no vote, courts may consider whether an intelligent and honest business person, as a member of the class concerned and acting in his or her own interest, might reasonably approve of the plan.  Courts must focus on the terms and impact of the arrangement itself, rather than the process by which it was reached, and must be satisfied that the burden imposed by the arrangement on security holders is justified by the interests of the corporation.  Courts on a s. 192  application should refrain from substituting their views of the “best” arrangement, but should not surrender their duty to scrutinize the arrangement.  [136] [138] [145] [151] [154‑155]

 


The purpose of s. 192  suggests that only security holders whose legal rights stand to be affected by the proposal are envisioned.  It is the fact that the corporation is permitted to alter individual rights that places the matter beyond the power of the directors and creates the need for shareholder and court approval.  However, in some circumstances, interests that are not strictly legal could be considered.  The fact that a group whose legal rights are left intact faces a reduction in the trading value of its securities generally does not, without more, constitute a circumstance where non‑legal interests should be considered on a s. 192  application.  [133‑135]

 


Here, the debentureholders no longer argue that the arrangement lacks a valid business purpose.  The debate focuses on whether the objections of those whose rights are being arranged were resolved in a fair and balanced way.  Since only their economic interests were affected by the proposed transaction, not their legal rights, and since they did not fall within an exceptional situation where non‑legal interests should be considered under s. 192 , the debentureholders did not constitute an affected class under s. 192 , and the trial judge was correct in concluding that they should not be permitted to veto almost 98 percent of the shareholders simply because the trading value of their securities would be affected.  Although not required, it remained open to the trial judge to consider the debentureholders’ economic interests, and he did not err in concluding that the arrangement addressed the debentureholders’ interests in a fair and balanced way.  The arrangement did not fundamentally alter the debentureholders’ rights, as the investment and return they contracted for remained intact.  It was well known that alteration in debt load could cause fluctuations in the trading value of the debentures, and yet the debentureholders had not contracted against this contingency.  It was clear to the judge that the continuance of the corporation required acceptance of an arrangement that would entail increased debt and debt guarantees by Bell Canada.  No superior arrangement had been put forward and BCE had been assisted throughout by expert legal and financial advisors.  Recognizing that there is no such thing as a perfect arrangement, the trial judge correctly concluded that the arrangement had been shown to be fair and reasonable.  [157] [161] [163‑164]

 

Cases Cited

 


Referred to:  Peoples Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461, 2004 SCC 68; Bradbury v. English Sewing Cotton Co., [1923] A.C. 744; Zwicker v. Stanbury, [1953] 2 S.C.R. 438; Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015; Maple Leaf Foods Inc. v. Schneider Corp. (1998), 42 O.R. (3d) 177; Kerr v. Danier Leather Inc., [2007] 3 S.C.R. 331, 2007 SCC 44; The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; Scottish Co‑operative Wholesale Society Ltd. v. Meyer, [1959] A.C. 324; Diligenti v. RWMD Operations Kelowna Ltd. (1976), 1 B.C.L.R. 36; Stech v. Davies, [1987] 5 W.W.R. 563; First Edmonton Place Ltd. v. 315888 Alberta Ltd. (1988), 40 B.L.R. 28, var’d (1989), 45 B.L.R. 110; 820099 Ontario Inc. v. Harold E. Ballard Ltd. (1991), 3 B.L.R. (2d) 113; Westfair Foods Ltd. v. Watt (1991), 79 D.L.R. (4th) 48; Wright v. Donald S. Montgomery Holdings Ltd. (1998), 39 B.L.R. (2d) 266; Re Keho Holdings Ltd. and Noble (1987), 38 D.L.R. (4th) 368; Ebrahimi v. Westbourne Galleries Ltd., [1973] A.C. 360; Main v. Delcan Group Inc. (1999), 47 B.L.R. (2d) 200; GATX Corp. v. Hawker Siddeley Canada Inc. (1996), 27 B.L.R. (2d) 251; Adecco Canada Inc. v. J. Ward Broome Ltd. (2001), 12 B.L.R. (3d) 275; SCI Systems Inc. v. Gornitzki Thompson & Little Co. (1997), 147 D.L.R. (4th) 300, var’d (1998), 110 O.A.C. 160; Downtown Eatery (1993) Ltd. v. Ontario (2001), 200 D.L.R. (4th) 289, leave to appeal refused, [2002] 1 S.C.R. vi; Re Ferguson and Imax Systems Corp. (1983), 150 D.L.R. (3d) 718; Gibbons v. Medical Carriers Ltd. (2001), 17 B.L.R. (3d) 280, 2001 MBQB 229; Alberta Treasury Branches v. SevenWay Capital Corp. (1999), 50 B.L.R. (2d) 294, aff’d (2000), 8 B.L.R. (3d) 1, 2000 ABCA 194; Lyall v. 147250 Canada Ltd. (1993), 106 D.L.R. (4th) 304; Tsui v. International Capital Corp., [1993] 4 W.W.R. 613, aff’d (1993), 113 Sask. R. 3; Deutsche Bank Canada v. Oxford Properties Group Inc. (1998), 40 B.L.R. (2d) 302; Themadel Foundation v. Third Canadian Investment Trust Ltd. (1995), 23 O.R. (3d) 7, var’d (1998), 38 O.R. (3d) 749; Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (1986); Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (1985); Trizec Corp., Re (1994), 21 Alta. L.R. (3d) 435; Pacifica Papers Inc. v. Johnstone (2001), 15 B.L.R. (3d) 249, 2001 BCSC 1069; Abitibi‑Consolidated Inc. (Arrangement relatif à), [2007] Q.J. No. 16158 (QL), 2007 QCCS 6830; Canadian Pacific Ltd. (Re) (1990), 73 O.R. (2d) 212; Cinar Corp. v. Shareholders of Cinar Corp. (2004), 4 C.B.R. (5th) 163; PetroKazakhstan Inc. v. Lukoil Overseas Kumkol B.V. (2005), 12 B.L.R. (4th) 128, 2005 ABQB 789; St. Lawrence & Hudson Railway Co. (Re), [1998] O.J. No. 3934 (QL); Re Alabama, New Orleans, Texas and Pacific Junction Railway Co., [1891] 1 Ch. 213; Stelco Inc., Re (2006), 18 C.B.R. (5th) 173; UPM‑Kymmene Corp. v. UPM‑Kymmene Miramichi Inc. (2002), 214 D.L.R. (4th) 496, aff’d (2004), 42 B.L.R. (3d) 34.

 


Statutes and Regulations Cited

 

Canada Business Corporations Act, R.S.C. 1985, c. C‑44 , ss. 102(1) , 122 , 192 , 239 , 241 .

 

Companies Act Amending Act, 1923, S.C. 1923, c. 39, s. 4.

 

 

 

Authors Cited

 

 

Canada.  Consumer and Corporate Affairs Canada.  Detailed background paper for an Act to amend the Canada Business Corporations Act.  Ottawa:  Consumer and Corporate Affairs Canada, 1977.

 

Canada.  Industry Canada.  Corporations Canada.  Policy concerning Arrangements Under Section 192  of the CBCA :  Policy Statement 15.1.  Ottawa:  Industry Canada, November 7, 2003 (online:  www.strategis.ic.gc.ca/epic/site/cd‑dgc.nsf/print‑en/cs01073e.html).

 

Dickerson, Robert W. V., John L. Howard and Leon Getz.  Proposals for a New Business Corporations Law for Canada, vol. I.  Ottawa:  Information Canada, 1971.

 

Koehnen, Markus.  Oppression and Related Remedies.  Toronto:  Thomson/Carswell, 2004.

 

Nicholls, Christopher C.  Mergers, Acquisitions, and Other Changes of Corporate Control.  Toronto:  Irwin Law, 2007.

 

Shapira, G. “Minority Shareholders’ Protection — Recent Developments” (1982), 10 N.Z. Univ. L. Rev. 134.

 

Veasey, E. Norman, with Christine T. Di Guglielmo.  “What Happened in Delaware Corporate Law and Governance from 1992‑2004?  A Retrospective on Some Key Developments” (2005), 153 U. Pa. L. Rev. 1399.

 

 

 


APPEALS and CROSS‑APPEALS from judgments of the Quebec Court of Appeal (Robert C.J.Q. and Otis, Nuss, Pelletier and Dalphond JJ.A.), [2008] R.J.Q. 1298, 43 B.L.R. (4th) 157, [2008] Q.J. No. 4173 (QL), 2008 CarswellQue 4179, 2008 QCCA 935; [2008] Q.J. No. 4170 (QL), 2008 QCCA 930; [2008] Q.J. No. 4171 (QL), 2008 QCCA 931; [2008] Q.J. No. 4172 (QL), 2008 QCCA 932; [2008] Q.J. No. 4174 (QL), 2008 QCCA 933; [2008] Q.J. No. 4175 (QL), 2008 QCCA 934, setting aside decisions by Silcoff J., [2008] R.J.Q. 1029, 43 B.L.R. (4th) 39, [2008] Q.J. No. 4376 (QL), 2008 CarswellQue 1805, 2008 QCCS 898; (2008), 43 B.L.R. (4th) 69, [2008] Q.J. No. 1728 (QL), 2008 CarswellQue 2226, 2008 QCCS 899; [2008] R.J.Q. 1097, 43 B.L.R. (4th) 1, [2008] Q.J. No. 1788 (QL), 2008 CarswellQue 2227, 2008 QCCS 905; (2008), 43 B.L.R. (4th) 135, [2008] Q.J. No. 1789 (QL), 2008 CarswellQue 2228, 2008 QCCS 906; [2008] R.J.Q. 1119, 43 B.L.R. (4th) 79, [2008] Q.J. No. 1790 (QL), 2008 CarswellQue 2229, 2008 QCCS 907.  Appeals allowed and cross‑appeals dismissed.

 

Guy Du Pont, Kent E. Thomson, William Brock, James Doris, Louis‑Martin O’Neill, Pierre Bienvenu and Steve Tenai, for the appellants/respondents on cross‑appeals BCE Inc. and Bell Canada.

 

Benjamin Zarnett, Jessica Kimmel, James A. Woods and Christopher L. Richter, for the appellant/respondent on cross‑appeals 6796508 Canada Inc.

 

John Finnigan, John Porter, Avram Fishman and Mark Meland, for the respondents/appellants on cross‑appeals Group of 1976 Debentureholders and Group of 1996 Debentureholders.


Markus Koehnen, Max Mendelsohn, Paul Macdonald, Julien Brazeau and Erin Cowling, for the respondent/appellant on cross‑appeals Group of 1997 Debentureholders.

 

Written submissions only by Robert Tessier and Ronald Auclair, for the respondent Computershare Trust Company of Canada.

 

Christian S. Tacit, for the intervener Catalyst Asset Management Inc.

 

Raynold Langlois, Q.C., and Gerald Apostolatos, for the intervener Matthew Stewart.

 

The following is the judgment delivered by

 

The Court

 

I.        Introduction

 


[1]     These appeals arise out of an offer to purchase all shares of BCE Inc. (“BCE”), a large telecommunications corporation, by a group headed by the Ontario Teachers Pension Plan Board (“Teachers”), financed in part by the assumption by Bell Canada, a wholly owned subsidiary of BCE, of a $30 billion debt.  The leveraged buyout was opposed by debentureholders of Bell Canada on the ground that the increased debt contemplated by the purchase agreement would reduce the value of their bonds.  Upon request for court approval of an arrangement under s. 192  of the Canada Business Corporations Act, R.S.C. 1985, c. C-44  (“CBCA ”), the debentureholders argued that it should not be found to be fair. They also opposed the arrangement under s. 241  of the CBCA  on the ground that it was oppressive to them.

 

[2]     The Quebec Superior Court, per Silcoff J., approved the arrangement as fair under the CBCA  and dismissed the claims for oppression.  The Quebec Court of Appeal found that the arrangement had not been shown to be fair and held that it should not have been approved.  Thus, it found it unnecessary to consider the oppression claim.

 

[3]     On June 20, 2008, this Court allowed the appeals from the Court of Appeal’s disapproval of the arrangement and dismissed two cross-appeals from the dismissal of the claims for oppression, with reasons to follow.  These are those reasons.

 

II.      Facts

 

[4]     At issue is a plan of arrangement valued at approximately $52 billion, for the purchase of the shares of BCE by way of a leveraged buyout. The arrangement was opposed by a group, comprised mainly of financial institutions, that hold debentures issued by Bell Canada. The crux of their complaints is that the arrangement would diminish the trading value of their debentures by an average of 20 percent, while conferring a premium of approximately 40 percent on the market price of BCE shares.

 


[5]     Bell Canada was incorporated in 1880 by a special Act of the Parliament of Canada.  The corporation was subsequently continued under the CBCA .  BCE, a management holding company, was incorporated in 1970 and continued under the CBCA  in 1979. Bell Canada became a wholly owned subsidiary of BCE in 1983 pursuant to a plan of arrangement under which Bell Canada’s shareholders surrendered their shares in exchange for shares of BCE.  BCE and Bell Canada are separate legal entities with separate charters, articles and bylaws.  Since January 2003, however, they have shared a common set of directors and some senior officers. 

 

[6]     At the time relevant to these proceedings, Bell Canada had $7.2 billion in outstanding long-term debt comprised of debentures issued pursuant to three trust indentures: the 1976, the 1996 and the 1997 trust indentures. The trust indentures contain neither change of control nor credit rating covenants, and specifically allow Bell Canada to incur or guarantee additional debt subject to certain limitations.

 

[7]     Bell Canada’s debentures were perceived by investors to be safe investments and, up to the time of the proposed leveraged buyout, had maintained  an investment grade rating. The debentureholders are some of Canada’s largest and most reputable financial institutions, pension funds and insurance companies. They are major participants in the debt markets and possess an intimate and historic knowledge of the financial markets.

 


[8]     A number of technological, regulatory and competitive changes have significantly altered the industry in which BCE operates. Traditionally highly regulated and focused on circuit-switch line telephone service, the telecommunication industry is now guided primarily by market forces and characterized by an ever-expanding group of market participants, substantial new competition and increasing expectations regarding customer service.  In response to these changes, BCE developed a new business plan by which it would focus on its core business, telecommunications, and divest its interest in unrelated businesses. This new business plan, however, was not as successful as anticipated.  As a result, the shareholder returns generated by BCE remained significantly less than the ones generated by its competitors.

 

[9]     Meanwhile, by the end of 2006, BCE had large cash flows and strong financial indicators, characteristics perceived by market analysts to make it a suitable target for a buyout.  In November 2006, BCE was made aware that Kohlberg Kravis Roberts & Co. (“KKR”), a United States private equity firm, might be interested in a transaction involving BCE. Mr. Michael Sabia, President and Chief Executive Officer of BCE, contacted KKR to inform them that BCE was not interested in pursuing such a transaction at that time.

 


[10] In February 2007, new rumours surfaced that KKR and the Canada Pension Plan  Investment Board were arranging financing to initiate a bid for BCE. Shortly thereafter, additional rumours began to circulate that an investment banking firm was assisting Teachers with a potential transaction involving BCE.  Mr. Sabia, after meeting with BCE’s board of directors (“Board”), contacted the representatives of both KKR and Teachers to reiterate that BCE was not interested in pursuing a “going-private” transaction at the time because it was set on creating shareholder value through the execution of its 2007 business plan.

 

[11] On March 29, 2007, after an article appeared on the front page of the Globe and Mail that inaccurately described BCE as being in discussions with a consortium comprised of KKR and Teachers, BCE issued a press release confirming that there were no ongoing discussions being held with private equity investors with respect to a “going-private” transaction for BCE.

 

[12] On April 9, 2007, Teachers filed a report (Schedule 13D) with the United States Securities and Exchange Commission reflecting a change from a passive to an active holding of BCE shares. This filing heightened press speculation concerning a potential privatization of BCE.

 

[13] Faced with renewed speculation and BCE having been put “in play” by the filing by Teachers of the Schedule 13D report, the Board met with its legal and financial advisors to assess strategic alternatives.  It decided that it would be in the best interests of BCE and its shareholders to have competing bidding groups and to guard against the risk of a single bidding group assembling such a significant portion of available debt and equity that the group could preclude potential competing bidding groups from participating effectively in an auction process. 

 


[14] In a press release dated April 17, 2007, BCE announced that it was reviewing its strategic alternatives with a view to further enhancing shareholder value. On the same day, a Strategic Oversight Committee (“SOC”)  was created.  None of its members had ever been part of management at BCE.  Its mandate was, notably, to set up and supervise the auction process.

 

[15] Following the April 17 press release, several debentureholders sent letters to the Board voicing their concerns about a potential leveraged buyout transaction. They sought assurance that their interests would be considered by the Board. BCE replied in writing that it intended to honour the contractual terms of the trust indentures.

 

[16] On June 13, 2007, BCE provided the potential participants in the auction process with bidding rules and the general form of a definitive transaction agreement. The bidders were advised that, in evaluating the competitiveness of proposed bids, BCE would consider the impact that their proposed financing arrangements would have on BCE and on Bell Canada’s debentureholders and, in particular, whether their bids respected the debentureholders’ contractual rights under the trust indentures.

 


[17] Offers were submitted by three groups.  All three offers contemplated the addition of a substantial amount of new debt for which Bell Canada would be liable. All would have likely resulted in a downgrade of the debentures below investment grade. The initial offer submitted by the appellant 6796508 Canada Inc. (the “Purchaser”), a corporation formed by Teachers and affiliates of Providence Equity Partners Inc. and Madison Dearborn Partners LLC, contemplated an amalgamation of Bell Canada that would have triggered the voting rights of the debentureholders under the trust indentures. The Board informed the Purchaser that such an amalgamation made its offer less competitive.  The Purchaser submitted a revised offer with an alternative structure for the transaction that did not involve an amalgamation of Bell Canada. Also, the Purchaser’s revised offer increased the initial price per share from $42.25 to $42.75.

 

[18] The Board, after a review of the three offers and based on the recommendation of the SOC, found that the Purchaser’s revised offer was in the best interests of BCE and BCE’s shareholders. In evaluating the fairness of the consideration to be paid to the shareholders under the Purchaser’s offer, the Board  and the SOC received opinions from several reputable financial advisors.  In the meantime, the Purchaser agreed to cooperate with the Board in obtaining a solvency certificate stating that BCE would still be solvent (and hence in a position to meet its obligations after completion of the transaction). The Board did not seek a fairness opinion in respect of the debentureholders, taking the view that their rights were not being arranged.

 

[19] On June 30, 2007, the Purchaser and BCE entered into a definitive agreement.  On September 21, 2007, BCE’s shareholders approved the arrangement by a majority of  97.93 percent.

 


[20] Essentially, the arrangement provides for the compulsory acquisition of all of BCE’s outstanding shares. The price to be paid by the Purchaser is $42.75 per common share, which represents a premium of approximately 40 percent to the closing price of the shares as of March 28, 2007. The total capital required for the transaction is approximately $52 billion, $38.5 billion of which will be supported by BCE.  Bell Canada will guarantee approximately $30 billion of BCE’s debt. The Purchaser will invest nearly $8 billion of new equity capital in BCE.

 

[21] As a result of the announcement of the arrangement, the credit ratings of the debentures by the time of trial had been downgraded from investment grade to below investment grade. From the perspective of the debentureholders, this downgrade was problematic for two reasons.  First, it caused the debentures to decrease in value by an average of approximately 20 percent. Second, the downgrade could oblige debentureholders with credit-rating restrictions on their holdings to sell their debentures at a loss.

 

[22] The debentureholders at trial opposed the arrangement on a number of grounds.  First, the debentureholders sought relief under the oppression provision in s. 241  of the CBCA .  Second, they opposed court approval of the arrangement, as required by s. 192  of the CBCA , alleging that the arrangement was not “fair and reasonable” because of the adverse effect on their economic interests.  Finally, the debentureholders brought motions for declaratory relief under the terms of the trust indentures, which are not before us: (2008), 43 B.L.R. (4th) 39, 2008 QCCS 898; (2008), 43 B.L.R. (4th) 69, 2008 QCCS 899.

 


III.     Judicial History

 

[23] The trial judge reviewed the s. 241  oppression claim as lying against both BCE and Bell Canada, since s. 241  refers to actions by the “corporation or any of its affiliates”.  He dismissed the claims for oppression on the grounds that the debt guarantee to be assumed by Bell Canada had a valid business purpose; that the transaction did not breach the reasonable expectations of the debentureholders; that the transaction was not oppressive by reason of rendering the debentureholders vulnerable; and that BCE and its directors had not unfairly disregarded the interests of the debentureholders:  (2008), 43 B.L.R. (4th) 79, 2008 QCCS 907; (2008), 43 B.L.R. (4th) 135, 2008 QCCS 906.

 

[24] In arriving at these conclusions, the trial judge proceeded on the basis that the BCE directors had a fiduciary duty under s. 122  of the CBCA  to act in the best interests of the corporation. He held that while the best interests of the corporation are not to be confused with the interests of the shareholders or other stakeholders, corporate law recognizes fundamental differences between shareholders and debt security holders. He held that these differences affect the content of the directors’ fiduciary duty.  As a result, the directors’ duty to act in the best interests of the corporation might require them to approve transactions that, while in the interests of the corporation, might also benefit some or all shareholders at the expense of other stakeholders. He also noted that in accordance with the business judgment rule, Canadian courts tend to accord deference to business decisions of directors taken in good faith and in the performance of the functions they were elected to perform by shareholders.


 

[25] The trial judge held that the debentureholders’ reasonable expectations must be assessed on an objective basis and, absent compelling reasons, must derive from the trust indentures and the relevant prospectuses issued in connection with the debt offerings.  Statements by Bell Canada indicating a commitment to retaining investment grade ratings did not assist the debentureholders, since these statements were accompanied by warnings, repeated in the prospectuses pursuant to which the debentures were issued, that negated any expectation that this policy would be maintained indefinitely. The reasonableness of the alleged expectation was further negated by the fact that the debentureholders could have guarded against the business risks arising from a change of control by negotiating protective contract terms. The fact that the shareholders stood to benefit from the transaction and that the debentureholders were prejudiced did not in itself give rise to a conclusion that the directors had breached their fiduciary duty to the corporation.  All three competing bids required Bell Canada to assume additional debt, and there was no evidence that the bidders were prepared to treat the debentureholders any differently.  The materialization of certain risks as a result of decisions taken by the directors in accordance with their fiduciary duty to the corporation did not constitute oppression against the debentureholders or unfair disregard of their interests.

 


[26] Having dismissed the claim for oppression, the trial judge went on to consider BCE’s application for approval of the transaction under s. 192  of the CBCA : (2008), 43 B.L.R. (4th) 1, 2008 QCCS 905. He dismissed the debentureholders’ claim for voting rights on the arrangement on the ground that their legal interests were not compromised by the arrangement and that it would be unfair to allow them in effect to veto the shareholder vote.  However, in determining whether the arrangement was fair and reasonable — the main issue on the application for approval — he considered the fairness of the transaction with respect to both the shareholders and the debentureholders, and concluded that the arrangement was fair and reasonable. He considered the necessity of the arrangement for Bell Canada’s continued operations; that the Board, comprised almost entirely of independent directors, had determined the arrangement was fair and reasonable and in the best interests of BCE and the shareholders; that the arrangement had been approved by over 97 percent of the shareholders; that the arrangement was the culmination of a robust strategic review and auction process; the assistance the Board received throughout from leading legal and financial advisors; the absence of a superior proposal; and the fact that the proposal did not alter or arrange the debentureholders’ legal rights.  While the proposal stood to alter the debentureholders’ economic interests, in the sense that the trading value of their securities would be reduced by the added debt load, their contractual rights remained intact.  The trial judge noted that the debentureholders could have protected themselves against this eventuality through contract terms, but had not.  Overall, he concluded that taking all relevant matters into account, the arrangement was fair and reasonable and should be approved.

 


[27] The Court of Appeal allowed the appeals on the ground that BCE had failed to meet its onus on the test for approval of an arrangement under s. 192 , by failing to show that the transaction was fair and reasonable to the debentureholders. Basing its analysis on this Court’s decision in Peoples Department Stores Inc. (Trustee of) v. Wise, [2004] 3 S.C.R. 461, 2004 SCC 68, the Court of Appeal found that the directors were required to consider the non-contractual interests of the debentureholders. It held that representations made by Bell Canada over the years could have created reasonable expectations above and beyond the contractual rights of the debentureholders.  In these circumstances, the directors were under a duty, not simply to accept the best offer, but to consider whether the arrangement could be restructured in a way that provided a satisfactory price to the shareholders while avoiding an adverse effect on the debentureholders.  In the absence of such efforts, BCE had not discharged its onus under s. 192 of showing that the arrangement was fair and reasonable. The Court of Appeal therefore overturned the trial judge’s order approving the plan of arrangement: (2008), 43 B.L.R. (4th) 157, 2008 QCCA 930, 2008 QCCA 931, 2008 QCCA 932, 2008 QCCA 933, 2008 QCCA 934, 2008 QCCA 935.

 

[28]  The Court of Appeal found it unnecessary to consider the s. 241  oppression claim, holding that its rejection of the s. 192  approval application effectively disposed of the oppression claim.  In its view, where approval is sought under s. 192  and opposed, there is generally no need for an affected security holder to assert an oppression remedy under s. 241 .

 


[29] BCE and Bell Canada appeal to this Court arguing that the Court of Appeal erred in overturning the trial judge’s approval of the plan of arrangement.  While formally cross-appealing on s. 241 , the debentureholders argue that the Court of Appeal was correct to consider their complaints under s. 192 , such that their appeals under s. 241  became moot.

 

IV.     Issues

 

[30] The issues, briefly stated, are whether the Court of Appeal erred in dismissing the debentureholders’ s. 241  oppression claim and in overturning the Superior Court’s s. 192  approval of the plan of arrangement.  These questions raise the issue of what is required to establish oppression of debentureholders in a situation where a corporation is facing a change of control, and how a judge on an application for approval of an arrangement under s. 192  of the CBCA  should treat claims such as those of the debentureholders in these actions.  These reasons will consider both issues.

 

[31] In order to situate these issues in the context of Canadian corporate law, it may be useful to offer a preliminary description of the remedies provided by the CBCA  to shareholders and stakeholders in a corporation facing a change of control.  

 

[32] Accordingly, these reasons will consider:

 

(1)               the rights, obligations and remedies under the CBCA  in overview;

 

(2)               the debentureholders’ entitlement to relief under the s. 241  oppression remedy;


(3)               the debentureholders’ entitlement to relief under the requirement for court approval of an arrangement under s. 192 .

 

[33] We note that it is unnecessary for the purposes of these appeals to distinguish between the conduct of the directors of BCE, the holding company, and the conduct of the directors of Bell Canada.  The same directors served on the boards of both corporations.  While the oppression remedy was directed at both BCE and Bell Canada, the courts below considered the entire context in which the directors of BCE made their decisions, which included the obligations of Bell Canada in relation to its debentureholders.  It was not found by the lower courts that the directors of BCE and Bell Canada should have made different decisions with respect to the two corporations.  Accordingly, the distinct corporate character of the two entities does not figure in our analysis.

 

V.      Analysis

 

A.      Overview of Rights, Obligations and Remedies Under the CBCA 

 

[34] An essential component of a corporation is its capital stock, which is divided into fractional parts, the shares:  Bradbury v. English Sewing Cotton Co., [1923] A.C. 744 (H.L.), at p. 767; Zwicker v. Stanbury, [1953] 2 S.C.R. 438.  While the corporation is ongoing, shares confer no right to its underlying assets.

 


[35] A share “is not an isolated piece of property . . . [but] a ‘bundle’ of interrelated rights and liabilities”: Sparling v. Quebec (Caisse de dépôt et placement du Québec), [1988] 2 S.C.R. 1015, at p. 1025, per La Forest J.  These rights include the right to a proportionate part of the assets of the corporation upon winding-up and the right to oversee the management of the corporation by its board of directors by way of votes at shareholder meetings.

 

[36] The directors are responsible for the governance of the corporation.  In the performance of this role, the directors are subject to two duties: a fiduciary duty to the corporation under s. 122(1) (a) (the fiduciary duty); and a duty to exercise the care, diligence and skill of a reasonably prudent person in comparable circumstances under s. 122(1) (b) (the duty of care). The second duty is not at issue in these proceedings as this is not a claim against the directors of the corporation for failing to meet their duty of care.   However, this case does involve the fiduciary duty of the directors to the corporation, and particularly the “fair treatment” component of this duty, which, as will be seen, is fundamental to the reasonable expectations of stakeholders claiming an oppression remedy.

 

[37] The fiduciary duty of the directors to the corporation originated in the common law.  It is a duty to act in the best interests of the corporation.  Often the interests of shareholders and stakeholders are co-extensive with the interests of the corporation.  But if they conflict, the directors’ duty is clear — it is to the corporation:  Peoples Department Stores.


 

[38] The fiduciary duty of the directors to the corporation is a broad, contextual concept.  It is not confined to short-term profit or share value.  Where the corporation is an ongoing concern, it looks to the long-term interests of the corporation.  The content of this duty varies with the situation at hand.  At a minimum, it requires the directors to ensure that the corporation meets its statutory obligations.  But, depending on the context, there may also be other requirements. In any event, the fiduciary duty owed by directors is mandatory; directors must look to what is in the best interests of the corporation.

 

[39] In Peoples Department Stores, this Court found that although directors must consider the best interests of the corporation, it may also be appropriate, although not mandatory, to consider the impact of corporate decisions on shareholders or particular groups of stakeholders. As stated by Major and Deschamps JJ., at para. 42:

 

We accept as an accurate statement of law that in determining whether they are acting with a view to the best interests of the corporation it may be legitimate, given all the circumstances of a given case, for the board of directors to consider, inter alia, the interests of shareholders, employees, suppliers, creditors, consumers, governments and the environment.

 

As will be discussed, cases dealing with claims of oppression have further clarified the content of the fiduciary duty of directors with respect to the range of interests that should be considered in determining what is in the best interests of the corporation, acting fairly and responsibly.

 


[40]  In considering what is in the best interests of the corporation, directors may look to the interests of, inter alia, shareholders, employees, creditors, consumers, governments and the environment to inform their decisions. Courts should give appropriate deference to the business judgment of directors who take into account these ancillary interests, as reflected by the business judgment rule.  The “business judgment rule” accords deference to a business decision, so long as it lies within a range of reasonable alternatives: see Maple Leaf Foods Inc. v. Schneider Corp. (1998), 42 O.R. (3d) 177 (C.A.); Kerr v. Danier Leather Inc., [2007] 3 S.C.R. 331, 2007 SCC 44.  It reflects the reality that directors, who are mandated under s. 102(1)  of the CBCA  to manage the corporation’s business and affairs, are often better suited to determine what is in the best interests of the corporation.  This applies to decisions on stakeholders’ interests, as much as other directorial decisions.

 

[41] Normally only the beneficiary of a fiduciary duty can enforce the duty.  In the corporate context, however, this may offer little comfort. The directors who control the corporation are unlikely to bring an action against themselves for breach of their own fiduciary duty.  The shareholders cannot act in the stead of the corporation; their only power is the right to oversee the conduct of the directors by way of votes at shareholder assemblies.  Other stakeholders may not even have that. 

 

[42] To meet these difficulties, the common law developed a number of special remedies to protect the interests of shareholders and stakeholders of the corporation.  These remedies have been affirmed, modified and supplemented by the CBCA .


 

[43] The first remedy provided by the CBCA  is the s. 239  derivative action, which allows stakeholders to enforce the directors’ duty to the corporation when the directors are themselves unwilling to do so.  With leave of the court, a complainant may bring (or intervene in) a derivative action in the name and on behalf of the corporation or one of its subsidiaries to enforce a right of the corporation, including the rights correlative with the directors’ duties to the corporation. (The requirement of leave serves to prevent frivolous and vexatious actions, and other actions which, while possibly brought in good faith, are not in the interest of the corporation to litigate.)

 

[44] A second remedy lies against the directors in a civil action for breach of duty of care. As noted, s. 122(1) (b) of the CBCA  requires directors and officers of a corporation to “exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances”.  This duty, unlike the s. 122(1) (a) fiduciary duty, is not owed solely to the corporation, and thus may be the basis for liability to other stakeholders in accordance with principles governing the law of tort and extracontractual liability: Peoples Department Stores.  Section 122(1) (b) does not provide an independent foundation for claims.   However, applying the principles of The Queen in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205, courts may take this statutory provision into account as to the standard of behaviour that should reasonably be expected.

 


[45] A third remedy, grounded in the common law and endorsed by the CBCA , is a s. 241  action for oppression.  Unlike the derivative action, which is aimed at enforcing a right of the corporation itself, the oppression remedy focuses on harm to the legal and equitable interests of stakeholders affected by oppressive acts of a corporation or its directors.  This remedy is available to a wide range of stakeholders — security holders, creditors, directors and officers.

 

[46] Additional “remedial” provisions are found in provisions of the CBCA  providing for court approval in certain cases.  An arrangement under s. 192  of the CBCA  is one of these.  While s. 192  cannot be described as a remedy per se, it has remedial-like aspects.  It is directed at the situation of corporations seeking to effect fundamental changes to the corporation that affects stakeholder rights.  The Act provides that such arrangements require the approval of the court. Unlike the civil action and oppression, which focus on the conduct of the directors, a s. 192  review requires a court approving a plan of arrangement to be satisfied that: (1) the statutory procedures have been met; (2) the application has been put forth in good faith; and (3) the arrangement is fair and reasonable.  If the corporation fails to discharge its burden of establishing these elements, approval will be withheld and the proposed change will not take place.  In assessing whether the arrangement should be approved, the court will hear arguments from opposing security holders whose rights are being arranged.  This provides an opportunity for security holders to argue against the proposed change.

 


[47] Two of these remedies are in issue in these actions: the action for oppression and approval of an arrangement under s. 192 .  The trial judge treated these remedies as involving distinct considerations and concluded that the debentureholders had failed to establish entitlement to either remedy.  The Court of Appeal, by contrast,  viewed the two remedies as substantially overlapping, holding that both turned on whether the directors had properly considered the debentureholders’ expectations. Having found on this basis that the requirements of s. 192  were not met, the Court of Appeal concluded that the action for oppression was moot.  As will become apparent, we do not endorse this approach.  In our view, the s. 241  oppression action and the s. 192  requirement for court approval of a change to the corporate structure are different types of proceedings, engaging different inquiries. Accordingly, we find it necessary to consider both the claims for oppression and the s. 192  application for approval.

 

[48] The debentureholders have formally cross‑appealed on the oppression remedy.  However, due to the Court of Appeal’s failure to consider this issue, the debentureholders did not advance separate arguments before this Court.  As certain aspects of their position are properly addressed within the context of an analysis of oppression under s. 241 , we have considered them here.

 

[49]  Against this background, we turn to a more detailed consideration of the claims.

 

B.      The Section 241  Oppression Remedy

 


[50] The debentureholders in these appeals claim that the directors acted in an oppressive manner in approving the sale of BCE, contrary to s. 241  of the CBCA .

 

[51] Security holders of a corporation or its affiliates fall within the class of persons who may be permitted to bring a claim for oppression under s. 241  of the CBCA .  The trial judge permitted the debentureholders to do so, although in the end he found the claim had not been established.  The question is whether the trial judge erred in dismissing the claim.

 

[52] We will first set out what must be shown to establish the right to a remedy under s. 241 , and then review the conduct complained of in the light of those requirements.                       

 

(1)   The Law

 

[53] Section 241(2) provides that a court may make an order to rectify the matters complained of where

 

(a)    any act or omission of the corporation or any of its affiliates effects a result,

 

(b)    the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or

 

(c)    the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner

 

that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer . . . .


[54] Section 241  jurisprudence reveals two possible approaches to the interpretation of the oppression provisions of the CBCA : M. Koehnen, Oppression and Related Remedies (2004), at pp. 79-80 and 84.  One approach emphasizes a strict reading of the three types of conduct enumerated in s. 241  (oppression, unfair prejudice and unfair disregard): see Scottish Co-operative Wholesale Society Ltd. v. Meyer, [1959] A.C. 324 (H.L.); Diligenti v. RWMD Operations Kelowna Ltd. (1976), 1 B.C.L.R. 36 (S.C.); Stech v. Davies, [1987] 5 W.W.R. 563 (Alta. Q.B.).  Cases following this approach focus on the precise content of the categories “oppression”, “unfair prejudice” and “unfair disregard”.  While these cases may provide valuable insight into what constitutes oppression in particular circumstances, a categorical approach to oppression is problematic because the terms used cannot be put into watertight compartments or conclusively defined. As Koehnen puts it (at p. 84), “[t]he three statutory components of oppression are really adjectives that try to describe inappropriate conduct. . . .  The difficulty with adjectives is they provide no assistance in formulating principles that should underlie court intervention.”

 

[55] Other cases have focused on the broader principles underlying and uniting the various aspects of oppression: see First Edmonton Place Ltd. v. 315888 Alberta Ltd. (1988), 40 B.L.R. 28 (Alta. Q.B.), var’d (1989), 45 B.L.R. 110 (Alta. C.A.); 820099 Ontario Inc. v. Harold E. Ballard Ltd. (1991), 3 B.L.R. (2d) 113 (Ont. Div. Ct.); Westfair Foods Ltd. v. Watt (1991), 79 D.L.R. (4th) 48 (Alta. C.A.).

 


[56] In our view, the best approach to the interpretation of s. 241(2)  is one that combines the two approaches developed in the cases.  One should look first to the principles underlying the oppression remedy, and in particular the concept of reasonable expectations.  If a breach of a reasonable expectation is established, one must go on to consider whether the conduct complained of amounts to “oppression”, “unfair prejudice” or “unfair disregard” as set out in s. 241(2)  of the CBCA .

 

[57] We preface our discussion of the twin prongs of the oppression inquiry by two preliminary observations that run throughout all the jurisprudence.

 

[58] First, oppression is an equitable remedy.  It seeks to ensure fairness — what is “just and equitable”.  It gives a court broad, equitable jurisdiction to enforce not just what is legal but what is fair: Wright v. Donald S. Montgomery Holdings Ltd. (1998), 39 B.L.R. (2d) 266 (Ont. Ct. (Gen. Div.)), at p. 273; Re Keho Holdings Ltd. and Noble (1987), 38 D.L.R. (4th) 368 (Alta. C.A.), at p. 374; see, more generally, Koehnen, at pp. 78-79.  It follows that courts considering claims for oppression should look at business realities, not merely narrow legalities: Scottish Co-operative Wholesale Society, at p. 343.

 

[59] Second, like many equitable remedies, oppression is fact-specific. What is just and equitable is judged by the reasonable expectations of the stakeholders in the context and in regard to the relationships at play.  Conduct that may be oppressive in one situation may not be in another.

 


[60] Against this background, we turn to the first prong of the inquiry, the principles underlying the remedy of oppression. In Ebrahimi v. Westbourne Galleries Ltd., [1973] A.C. 360 (H.L.), at p. 379, Lord Wilberforce, interpreting s. 222 of the U.K. Companies Act, 1948, described the remedy of oppression in the following seminal terms:

 

The words [“just and equitable”] are a recognition of the fact that a limited company is more than a mere legal entity, with a personality in law of its own: that there is room in company law for recognition of the fact that behind it, or amongst it, there are individuals, with rights, expectations and obligations inter se which are not necessarily submerged in the company structure.

 

[61] Lord Wilberforce spoke of the equitable remedy in terms of the “rights, expectations and obligations” of individuals.  “Rights” and “obligations” connote interests enforceable at law without recourse to special remedies, for example, through a contractual suit or a derivative action under s. 239  of the CBCA .  It is left for the oppression remedy to deal with the “expectations” of affected stakeholders.  The reasonable expectations of these stakeholders is the cornerstone of the oppression remedy.

 

[62] As denoted by “reasonable”, the concept of reasonable expectations is objective and contextual.  The actual expectation of a particular stakeholder is not conclusive.  In the context of whether it would be “just and equitable” to grant a remedy, the question is whether the expectation is reasonable having regard to the facts of the specific case, the relationships at issue, and the entire context, including the fact that there may be conflicting claims and expectations.


 

[63] Particular circumstances give rise to particular expectations. Stakeholders enter into relationships, with and within corporations, on the basis of understandings and expectations, upon which they are entitled to rely, provided they are reasonable in the context: see 820099 Ontario; Main v. Delcan Group Inc. (1999), 47 B.L.R. (2d) 200 (Ont. S.C.J.).  These expectations are what the remedy of oppression seeks to uphold.

 

[64] Determining whether a particular expectation is reasonable is complicated by the fact that the interests and expectations of different stakeholders may conflict.  The oppression remedy recognizes that a corporation is an entity that encompasses and affects various individuals and groups, some of whose interests may conflict with others.  Directors or other corporate actors may make corporate decisions or seek to resolve conflicts in a way that abusively or unfairly maximizes a particular group’s interest at the expense of other stakeholders.  The corporation and shareholders are entitled to maximize profit and share value, to be sure, but not by treating individual stakeholders unfairly.  Fair treatment — the central theme running through the oppression jurisprudence — is most fundamentally what stakeholders are entitled to “reasonably expect”.

 


[65] Section 241(2)  speaks of the “act or omission” of the corporation or any of its affiliates, the conduct of “business or affairs” of the corporation and the “powers of the directors of the corporation or any of its affiliates”. Often, the conduct complained of is the conduct of the corporation or of its directors, who are responsible for the governance of the corporation.  However, the conduct of other actors, such as shareholders, may also support a claim for oppression: see Koehnen, at pp. 109-10; GATX Corp. v. Hawker Siddeley Canada Inc. (1996), 27 B.L.R. (2d) 251 (Ont. Ct. (Gen. Div.)).  In the appeals before us, the claims for oppression are based on allegations that the directors of BCE and Bell Canada failed to comply with the reasonable expectations of the debentureholders, and it is unnecessary to go beyond this.

 

[66] The fact that the conduct of the directors is often at the centre of oppression actions might seem to suggest that directors are under a direct duty to individual stakeholders who may be affected by a corporate decision.  Directors, acting in the best interests of the corporation, may be obliged to consider the impact of their decisions on corporate stakeholders, such as the debentureholders in these appeals. This is what we mean when we speak of a director being required to act in the best interests of the corporation viewed as a good corporate citizen. However, the directors owe a fiduciary duty to the corporation, and only to the corporation.  People sometimes speak in terms of directors owing a duty to both the corporation and to stakeholders. Usually this is harmless, since the reasonable expectations of the stakeholder in a particular outcome often coincide with what is in the best interests of the corporation.  However, cases (such as these appeals) may arise where these interests do not coincide.  In such cases, it is important to be clear that the directors owe their duty to the corporation, not to stakeholders, and that the reasonable expectation of stakeholders is simply that the directors act in the best interests of the corporation.

 


[67] Having discussed the concept of reasonable expectations that underlies the oppression remedy, we arrive at the second prong of the s. 241  oppression remedy.  Even if reasonable, not every unmet expectation gives rise to claim under s. 241 .  The section requires that the conduct complained of amount to “oppression”, “unfair prejudice” or “unfair disregard” of relevant interests. “Oppression” carries the sense of conduct that is coercive and abusive, and suggests bad faith.  “Unfair prejudice” may admit of a less culpable state of mind, that nevertheless has unfair consequences.  Finally, “unfair disregard” of interests extends the remedy to ignoring an interest as being of no importance, contrary to the stakeholders’ reasonable expectations: see Koehnen, at pp. 81‑88.  The phrases describe, in adjectival terms, ways in which corporate actors may fail to meet the reasonable expectations of stakeholders.

 

[68] In summary, the foregoing discussion suggests conducting two related inquiries in a claim for oppression: (1) Does the evidence support the reasonable expectation asserted by the claimant? and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression”, “unfair prejudice” or “unfair disregard” of a relevant interest?

 

[69] Against the background of this overview, we turn to a more detailed discussion of these inquiries.

 

(a)   Proof of a Claimant’s Reasonable Expectations

 


[70] At the outset, the claimant must identify the expectations that he or she claims have been violated by the conduct at issue and establish that the expectations were reasonably held.   As stated above, it may be readily inferred that a stakeholder has a reasonable expectation of fair treatment.  However, oppression, as discussed, generally turns on particular expectations arising in particular situations.  The question becomes whether the claimant stakeholder reasonably held the particular expectation. Evidence of an expectation may take many forms depending on the facts of the case.

 

[71] It is impossible to catalogue exhaustively situations where a reasonable expectation may arise due to their fact-specific nature.  A few generalizations, however, may be ventured. Actual unlawfulness is not required to invoke s. 241 ; the provision applies “where the impugned conduct is wrongful, even if it is not actually unlawful”: Dickerson Committee (R. W. V. Dickerson, J. L. Howard and L. Getz), Proposals for a New Business Corporations Law for Canada (1971), vol. I, at p. 163.  The remedy is focused on concepts of fairness and equity rather than on legal rights.  In determining whether there is a reasonable expectation or interest to be considered, the court looks beyond legality to what is fair, given all of the interests at play: Re Keho Holdings Ltd. and Noble.  It follows that not all conduct that is harmful to a stakeholder will give rise to a remedy for oppression as against the corporation.

                                                                       


[72] Factors that emerge from the case law that are useful in determining whether a reasonable expectation exists include: general commercial practice; the nature of the corporation; the relationship between the parties; past practice; steps the claimant could have taken to protect itself; representations and agreements; and the fair resolution of conflicting interests between corporate stakeholders. 

 

(i)        Commercial Practice

 

[73] Commercial practice plays a significant role in forming the reasonable expectations of the parties.  A departure from normal business practices that has the effect of undermining or frustrating the complainant’s exercise of his or her legal rights will generally (although not inevitably) give rise to a remedy: Adecco Canada Inc. v. J. Ward Broome Ltd. (2001), 12 B.L.R. (3d) 275 (Ont. S.C.J.); SCI Systems Inc. v. Gornitzki Thompson & Little Co. (1997), 147 D.L.R. (4th) 300 (Ont. Ct. (Gen. Div.)), var’d (1998), 110 O.A.C. 160 (Div. Ct.); Downtown Eatery (1993) Ltd. v. Ontario (2001), 200 D.L.R. (4th) 289 (Ont. C.A.), leave to appeal refused, [2002] 1 S.C.R. vi.

 

(ii)       The Nature of the Corporation

 

[74] The size, nature and structure of the corporation are relevant factors in assessing reasonable expectations: First Edmonton Place; G. Shapira, “Minority Shareholders’ Protection — Recent Developments” (1982), 10 N.Z. Univ. L. Rev. 134, at pp. 138 and 145-46. Courts may accord more latitude to the directors of a small, closely held corporation to deviate from strict formalities than to the directors of a larger public company.

 

(iii)  Relationships


[75] Reasonable expectations may emerge from the personal relationships between the claimant and other corporate actors. Relationships between shareholders based on ties of family or friendship may be governed by different standards than relationships between arm’s length shareholders in a widely held corporation.  As noted in Re Ferguson and Imax Systems Corp. (1983), 150 D.L.R. (3d) 718 (Ont. C.A.), “when dealing with a close corporation, the court may consider the relationship between the shareholders and not simply legal rights as such” (p. 727). 

 

(iv)      Past Practice

 

[76] Past practice may create reasonable expectations, especially among shareholders of a closely held corporation on matters relating to participation of shareholders in the corporation’s profits and governance: Gibbons v. Medical Carriers Ltd. (2001), 17 B.L.R. (3d) 280, 2001 MBQB 229; 820099 Ontario.  For instance, in Gibbons, the court found that the shareholders had a legitimate expectation that all monies paid out of the corporation would be paid to shareholders in proportion to the percentage of shares they held.  The authorization by the new directors to pay fees to themselves, for which the shareholders would not receive any comparable payments, was in breach of those expectations.

 


[77] It is important to note that practices and expectations can change over time.  Where valid commercial reasons exist for the change and the change does not undermine the complainant’s rights, there can be no reasonable expectation that directors will resist a departure from past practice: Alberta Treasury Branches v. SevenWay Capital Corp. (1999), 50 B.L.R. (2d) 294 (Alta. Q.B.), aff’d (2000), 8 B.L.R. (3d) 1, 2000 ABCA 194.

 

(v)       Preventive Steps

 

[78] In determining whether a stakeholder expectation is reasonable, the court may consider whether the claimant could have taken steps to protect itself against the prejudice it claims to have suffered.  Thus it may be relevant to inquire whether a secured creditor claiming oppressive conduct could have negotiated protections against the prejudice suffered: First Edmonton Place; SCI Systems.

 

(vi)  Representations and Agreements                                

 

[79]Shareholder agreements may be viewed as reflecting the reasonable expectations of the parties: Main; Lyall v. 147250 Canada Ltd. (1993), 106 D.L.R. (4th) 304 (B.C.C.A.).

 


[80]Reasonable expectations may also be affected by representations made to stakeholders or to the public in promotional material, prospectuses, offering circulars and other communications: Tsui v. International Capital Corp., [1993] 4 W.W.R. 613 (Sask. Q.B.), aff’d (1993), 113 Sask. R. 3 (C.A.); Deutsche Bank Canada v. Oxford Properties Group Inc. (1998), 40 B.L.R. (2d) 302 (Ont. Ct. (Gen. Div.)); Themadel Foundation v. Third Canadian Investment Trust Ltd. (1995), 23 O.R. (3d) 7 (Gen. Div.), var’d (1998), 38 O.R. (3d) 749 (C.A.).

 

(vii) Fair Resolution of Conflicting Interests

 

[81]As discussed, conflicts may arise between the interests of corporate stakeholders inter se and between stakeholders and the corporation.  Where the conflict involves the interests of the corporation, it falls to the directors of the corporation to resolve them in accordance with their fiduciary duty to act in the best interests of the corporation, viewed as a good corporate citizen.

 

[82]The cases on oppression, taken as a whole, confirm that the duty of the directors to act in the best interests of the corporation comprehends a duty to treat individual stakeholders affected by corporate actions equitably and fairly.  There are no absolute rules.  In each case, the question is whether, in all the circumstances, the directors acted in the best interests of the corporation, having regard to all relevant considerations, including, but not confined to, the need to treat affected stakeholders in a fair manner, commensurate with the corporation’s duties as a responsible corporate citizen.

 


[83]Directors may find themselves in a situation where it is impossible to please all stakeholders.   The “fact that alternative transactions were rejected by the directors is irrelevant unless it can be shown that a particular alternative was definitely available and clearly more beneficial to the company than the chosen transaction”: Maple Leaf Foods, per Weiler J.A., at p. 192.

 

[84]There is no principle that one set of interests — for example the interests of shareholders — should prevail over another set of interests.  Everything depends on the particular situation faced by the directors and whether, having regard to that situation, they exercised business judgment in a responsible way. 

 

[85]On these appeals, it was suggested on behalf of the corporations that the “Revlon line” of cases from Delaware support the principle that where the interests of shareholders conflict with the interests of creditors, the interests of shareholders should prevail.

 

[86]The “Revlon line” refers to a series of Delaware corporate takeover cases, the two most important of which are Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., 506 A.2d 173 (Del. 1986), and Unocal Corp. v. Mesa Petroleum Co., 493 A.2d 946 (Del. 1985).  In both cases, the issue was how directors should react to a hostile takeover bid.  Revlon suggests that in such circumstances, shareholder interests should prevail over those of other stakeholders, such as creditors.  Unocal tied this approach to situations where the corporation will not continue as a going concern, holding that although a board facing a hostile takeover “may have regard for various constituencies in discharging its responsibilities, . . . such concern for non‑stockholder interests is inappropriate when . . . the object no longer is to protect or maintain the corporate enterprise but to sell it to the highest bidder” (p. 182).


 

[87]What is clear is that the Revlon line of cases has not displaced the fundamental rule that the duty of the directors cannot be confined to particular priority rules, but is rather a function of business judgment of what is in the best interests of the corporation, in the particular situation it faces.  In a review of trends in Delaware corporate jurisprudence, former Delaware Supreme Court Chief Justice E. Norman Veasey put it this way:

 

[I]t is important to keep in mind the precise content of this “best interests” concept — that is, to whom this duty is owed and when. Naturally, one often thinks that directors owe this duty to both the corporation and the stockholders. That formulation is harmless in most instances because of the confluence of interests, in that what is good for the corporate entity is usually derivatively good for the stockholders. There are times, of course, when the focus is directly on the interests of stockholders [i.e., as in Revlon]. But, in general, the directors owe fiduciary duties to the corporation, not to the stockholders. [Emphasis in original.]

 

(E. Norman Veasey with Christine T. Di Guglielmo, “What Happened in Delaware Corporate Law and Governance from 1992‑2004? A Retrospective on Some Key Developments” (2005), 153 U. Pa. L. Rev. 1399, at p. 1431)

 

[88]Nor does this Court’s decision in Peoples Department Stores suggest a fixed rule that the interests of creditors must prevail.  In Peoples Department Stores, the Court had to consider whether, in the case of a corporation under threat of bankruptcy, creditors deserved special consideration (para. 46).  The Court held that the fiduciary duty to the corporation did not change in the period preceding the bankruptcy, but that if the directors breach their duty of care to a stakeholder under s. 122(1) (b) of the CBCA , such a stakeholder may act upon it (para. 66).


 

(b) Conduct Which Is Oppressive, Is Unfairly Prejudicial or Unfairly  Disregards the Claimant’s Relevant Interests

 

[89]Thus far we have discussed how a claimant establishes the first element of an action for oppression — a reasonable expectation that he or she would be treated in a certain way.  However, to complete a claim for oppression, the claimant must show that the failure to meet this expectation involved unfair conduct and prejudicial consequences within s. 241  of the CBCA .  Not every failure to meet a reasonable expectation will give rise to the equitable considerations that ground actions for oppression.  The court must be satisfied that the conduct falls within the concepts of “oppression”,  “unfair prejudice” or “unfair disregard” of the claimant’s interest, within the meaning of s. 241  of the CBCA . Viewed in this way, the reasonable expectations analysis that is the theoretical foundation of the oppression remedy, and the particular types of conduct described in s. 241 , may be seen as complementary, rather than representing alternative approaches to the oppression remedy, as has sometimes been supposed. Together, they offer a complete picture of conduct that is unjust and inequitable, to return to the language of Ebrahimi.

 

[90]In most cases, proof of a reasonable expectation will be tied up with one or more of the concepts of oppression, unfair prejudice, or unfair disregard of interests set out in s. 241 , and the two prongs will in fact merge. Nevertheless, it is worth stating that as in any action in equity, wrongful conduct, causation and compensable injury must be established in a claim for oppression.


 

[91]The concepts of oppression, unfair prejudice and unfairly disregarding relevant interests are adjectival.  They indicate the type of wrong or conduct that the oppression remedy of s. 241  of the CBCA  is aimed at.  However, they do not represent watertight compartments, and often overlap and intermingle. 

 

[92]The original wrong recognized in the cases was described simply as oppression, and was generally associated with conduct that has variously been described as “burdensome, harsh and wrongful”, “a visible departure from standards of fair dealing”, and an “abuse of power” going to the probity of how the corporation’s affairs are being conducted: see Koehnen, at p. 81. It is this wrong that gave the remedy its name, which now is generally used to cover all s. 241  claims.  However, the term also operates to connote a particular type of injury within the modern rubric of oppression generally — a wrong of the most serious sort.

 


[93]The CBCA has added “unfair prejudice” and “unfair disregard” of interests to the original common law concept, making it clear that wrongs falling short of the harsh and abusive conduct connoted by “oppression” may fall within s. 241 .  “Unfair prejudice” is generally seen as involving conduct less offensive than “oppression”.  Examples include squeezing out a minority shareholder, failing to disclose related party transactions, changing corporate structure to drastically alter debt ratios, adopting a “poison pill” to prevent a takeover bid, paying dividends without a formal declaration, preferring some shareholders with management fees and paying directors’ fees higher than the industry norm: see Koehnen, at pp. 82-83.

 

[94]“Unfair disregard” is viewed as the least serious of the three injuries, or wrongs, mentioned in s. 241 . Examples include favouring a director by failing to properly prosecute claims, improperly reducing a shareholder’s dividend, or failing to deliver property belonging to the claimant: see Koehnen, at pp. 83-84.

 

(2)  Application to These Appeals

 

[95]As discussed above (at para. 68), in assessing a claim for oppression a court must answer two questions: (1) Does the evidence support the reasonable expectation the claimant asserts? and (2) Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms “oppression”, “unfair prejudice” or “unfair disregard” of a relevant interest? 

 

[96]The debentureholders in this case assert two alternative expectations.  Their highest position is that they had a reasonable expectation that the directors of BCE would protect their economic interests as debentureholders in Bell Canada by putting forward a plan of arrangement that would maintain the investment grade trading value of their debentures.  Before this Court, however, they argued a softer alternative — a reasonable expectation that the directors would consider their economic interests in maintaining the trading value of the debentures.

 


[97]As summarized above (at para. 25), the trial judge proceeded on the debentureholders’ alleged expectation that the directors would act in a way that would preserve the investment grade status of their debentures.  He concluded that this expectation was not made out on the evidence, since the statements by Bell Canada suggesting a commitment to retaining investment grade ratings were accompanied by warnings that explicitly precluded investors from reasonably forming such expectations, and the warnings were included in the prospectuses pursuant to which the debentures were issued.

 

[98]The absence of a reasonable expectation that the investment grade of the debentures would be maintained was confirmed, in the trial judge’s view, by the overall context of the relationship, the nature of the corporation, its situation as the target of a bidding war, as well as by the fact that the claimants could have protected themselves against reduction in market value by negotiating appropriate contractual terms.

 


[99]The trial judge situated his consideration of the relevant factors in the appropriate legal context. He recognized that the directors had a fiduciary duty to act in the best interests of the corporation and that the content of this duty was affected by the various interests at stake in the context of the auction process that BCE was undergoing.  He emphasized that the directors, faced with conflicting interests, might have no choice but to approve transactions that, while in the best interests of the corporation, would benefit some groups at the expense of others.  He held that the fact that the shareholders stood to benefit from the transaction and that the debentureholders were prejudiced did not in itself give rise to a conclusion that the directors had breached their fiduciary duty to the corporation.  All three competing bids required Bell Canada to assume additional debt, and there was no evidence that bidders were prepared to accept less leveraged debt. Under the business judgment rule, deference should be accorded to business decisions of directors taken in good faith and in the performance of the functions they were elected to perform by the shareholders. 

 

[100]      We see no error in the principles applied by the trial judge nor in his findings of fact, which were amply supported by the evidence.  We accordingly agree that the first expectation advanced in this case — that the investment grade status of the debentures would be maintained — was not established.

 

[101]       The alternative, softer, expectation advanced is that the directors would consider the interests of the bondholders in maintaining the trading value of the debentures. The Court of Appeal, albeit in the context of its reasons on the s. 192  application, accepted this as a reasonable expectation.  It held that the representations made over the years, while not legally binding, created expectations beyond contractual rights.  It went on to state that in these circumstances, the directors were under a duty, not simply to accept the best offer, but to consider whether the arrangement could be restructured in a way that provided a satisfactory price to the shareholders while avoiding an adverse effect on debentureholders.

 


[102]      The evidence, objectively viewed, supports a reasonable expectation that the directors would consider the position of the debentureholders in making their decisions on the various offers under consideration.  As discussed above, reasonable expectations for the purpose of a claim of oppression are not confined to legal interests.  Given the potential impact on the debentureholders of the transactions under consideration, one would expect the directors, acting in the best interests of the corporation, to consider their short and long-term interests in the course of making their ultimate decision. 

 

[103]                             Indeed, the evidence shows that the directors did consider the interests of the debentureholders.  A number of debentureholders sent letters to the Board, expressing concern about the proposed leveraged buyout and seeking assurances that their interests would be considered.  One of the directors, Mr. Pattison, met with Phillips, Hager & North, representatives of the debentureholders. The directors’ response to these overtures was that the contractual terms of the debentures would be met, but no additional assurances were given.

 


[104]      It is apparent that the directors considered the interests of the debentureholders and, having done so, concluded that while the contractual terms of the debentures would be honoured, no further commitments could be made. This fulfilled the duty of the directors to consider the debentureholders’ interests.  It did not amount to “unfair disregard” of the interests of the debentureholders.  As discussed above, it may be impossible to satisfy all stakeholders in a given situation.  In this case, the Board considered the interests of the claimant stakeholders.  Having done so, and having considered its options in the difficult circumstances it faced, it made its decision, acting in what it perceived to be the best interests of the corporation.

 

[105]      What the claimants contend for on this appeal, in reality, is not merely an expectation that their interests be considered, but an expectation that the Board would take further positive steps to restructure the purchase in a way that would provide a satisfactory purchase price to the shareholders and preserve the high market value of the debentures.  At this point, the second, softer expectation asserted approaches the first alleged expectation of maintaining the investment grade rating of the debentures.

 

[106]       The difficulty with this proposition is that there is no evidence that it was reasonable to suppose it could have been achieved.  BCE, facing certain takeover, acted reasonably to create a competitive bidding process.  The process attracted three bids.  All of the bids were leveraged, involving a substantial increase in Bell Canada’s debt.  It was this factor that posed the risk to the trading value of the debentures.  There is no evidence that BCE could have done anything to avoid that risk.  Indeed, the evidence is to the contrary.

 


[107]      We earlier discussed the factors to consider in determining whether an expectation is reasonable on a s. 241  oppression claim.  These include commercial practice; the size, nature and structure of the corporation; the relationship between the parties; past practice; the failure to negotiate protections; agreements and representations; and the fair resolution of conflicting interests.  In our view, all these factors weigh against finding an expectation beyond honouring the contractual obligations of the debentures in this particular case.

 

[108]      Commercial practice — indeed commercial reality — undermines the claim that a way could have been found to preserve the trading position of the debentures in the context of the leveraged buyout.  This reality must have been appreciated by reasonable debentureholders. More broadly, two considerations are germane to the influence of general commercial practice on the reasonableness of the debentureholders’ expectations. First, leveraged buyouts of this kind are not unusual or unforeseeable, although the transaction at issue in this case is noteworthy for its magnitude. Second, trust indentures can include change of control and credit rating covenants where those protections have been negotiated. Protections of that type would have assured debentureholders a right to vote, potentially through their trustee, on the leveraged buyout, as the trial judge pointed out. This failure to negotiate protections was significant where the debentureholders, it may be noted, generally represent some of Canada’s largest and most reputable financial institutions, pension funds and insurance companies. 

 


[109]      The nature and size of the corporation also undermine the reasonableness of any expectation that the directors would reject the offers that had been presented and seek an arrangement that preserved the investment grade rating of the debentures. As discussed above (at para. 74), courts may accord greater latitude to the reasonableness of expectations formed in the context of a small, closely held corporation, rather than those relating to interests in a large, public corporation. Bell Canada had become a wholly owned subsidiary of BCE in 1983, pursuant to a plan of arrangement which saw the shareholders of Bell Canada surrender their shares in exchange for shares of BCE. Based upon the history of the relationship, it should not have been outside the contemplation of debentureholders acquiring debentures of Bell Canada under the 1996 and 1997 trust indentures, that arrangements of this type had occurred and could occur in the future.

 

[110]      The debentureholders rely on past practice, suggesting that investment grade ratings had always been maintained. However, as noted, reasonable practices may reflect changing economic and market realities.  The events that precipitated the leveraged buyout transaction were such realities.  Nor did the trial judge find in this case that representations had been made to debentureholders upon which they could have reasonably relied.

 

[111]      Finally, the claim must be considered from the perspective of the duty on the directors to resolve conflicts between the interests of corporate stakeholders in a fair manner that reflected the best interests of the corporation.

 


[112]      The best interests of the corporation arguably favoured acceptance of the offer at the time.  BCE had been put in play, and the momentum of the market made a buyout inevitable. The evidence, accepted by the trial judge, was that Bell Canada needed to undertake significant changes to continue to be successful, and that privatization would provide greater freedom to achieve its long-term goals by removing the pressure on short‑term public financial reporting, and bringing in equity from sophisticated investors motivated to improve the corporation’s performance. Provided that, as here, the directors’ decision is found to have been within the range of reasonable choices that they could have made in weighing conflicting interests, the court will not go on to determine whether their decision was the perfect one.

 

[113]      Considering all the relevant factors, we conclude that the debentureholders have failed to establish a reasonable expectation that could give rise to a claim for oppression.  As found by the trial judge, the alleged expectation that the investment grade of the debentures would be maintained is not supported by the evidence.  A reasonable expectation that the debentureholders’ interests would be considered is established, but was fulfilled.  The evidence does not support a further expectation that a better arrangement could be negotiated that would meet the exigencies that the corporation was facing, while better preserving the trading value of the debentures.

 


[114]      Given that the debentureholders have failed to establish that the expectations they assert were reasonable, or that they were not fulfilled, it is unnecessary to consider in detail whether conduct complained of was oppressive, unfairly prejudicial, or unfairly disregarded the debentureholders’ interests within the terms of s. 241  of the CBCA .  Suffice it to say that “oppression” in the sense of bad faith and abuse was not alleged, much less proved.  At best, the claim was for “unfair disregard” of the interests of the debentureholders.  As discussed, the evidence does not support this claim. 

 

C.        The Section 192  Approval Process                                         

                                                                     

[115]      The second remedy relied on by the debentureholders is the approval process for complex corporate arrangements set out under s. 192  of the CBCA .  BCE brought a petition for court approval of the plan under s. 192 .  At trial, the debentureholders were granted standing to contest such approval.  The trial judge concluded that “[i]t seem[ed] only logical and ‘fair’ to conduct this analysis having regard to the interests of BCE and those of its shareholders and other stakeholders, if any, whose interests are being arranged or affected”: (2008), 43 B.L.R. (4th) 1, 2008 QCCS 905, at para. 151.  On the basis of Corporations Canada’s Policy concerning Arrangements Under Section 192  of the CBCA , November 2003 (“Policy Statement 15.1”), the trial judge held that the s. 192  approval did not require the Board to afford the debentureholders the right to vote. He nonetheless considered their interests in assessing the fairness of the arrangement.  After a full hearing, he approved the arrangement as “fair and reasonable”, despite the debentureholders’ objections that the arrangement would adversely affect the trading value of their securities. 

 


[116]      The Court of Appeal reversed this decision, essentially on the ground that the directors had not given adequate consideration to the debentureholders’ reasonable expectations.  These expectations, in its view, extended beyond the debentureholders’ legal rights and required the directors to consider whether the adverse impact on the debentureholders’ economic interests could be alleviated or attenuated.  The court held that the corporation had failed to discharge the burden of showing that it was impossible to structure the sale in a manner that avoided the adverse economic effect on debentureholdings, and consequently had failed to establish that the proposed plan of arrangement was fair and reasonable. 

 

[117]      Before considering what must be shown to obtain approval of an arrangement under s. 192 , it may be helpful to briefly return to the differences between an action for oppression under s. 241  of the CBCA  and a motion for approval of an arrangement under s. 192  of the CBCA  alluded to earlier.

 

[118]      As we have discussed (at para. 47), the reasoning of the Court of Appeal effectively incorporated the s. 241  oppression claim into the s. 192  approval proceeding, converting it into an inquiry based on reasonable expectations. 

 


[119]      As we view the matter, the s. 241  oppression remedy and the s. 192  approval process are different proceedings, with different requirements.  While a conclusion that the proposed arrangement has an oppressive result may support the conclusion that the arrangement is not fair and reasonable under s. 192 , it is important to keep in mind the differences between the two remedies.  The oppression remedy is a broad and equitable remedy that focuses on the reasonable expectations of stakeholders, while the s. 192  approval process focuses on whether the arrangement, objectively viewed, is fair and reasonable and looks primarily to the interests of the parties whose legal rights are being arranged.  Moreover, in an oppression proceeding, the onus is on the claimant to establish oppression or unfairness, while in a s. 192  proceeding, the onus is on the corporation to establish that the arrangement is “fair and reasonable”.   

 

[120]      These differences suggest that it is possible that a claimant might fail to show oppression under s. 241 , but might succeed under s. 192  by establishing that the corporation has not discharged its onus of showing that the arrangement in question is fair and reasonable.   For this reason, it is necessary to consider the debentureholders’ s. 192  claim on these appeals, notwithstanding our earlier conclusion that the debentureholders have not established oppression.

 

[121]      Whether the converse is true is not at issue in these proceedings and need not detain us.  It might be argued that in theory, a finding of s. 241  oppression could be coupled with approval of an arrangement as fair and reasonable under s. 192 , given the different allocations of burden of proof in the two actions and the different perspectives from which the assessment is made.  On the other hand, common sense suggests, as did the Court of Appeal, that a finding of oppression sits ill with the conclusion that the arrangement involved is fair and reasonable.  We leave this interesting question to a case where it arises.

 

(1)   The Requirements for Approval Under Section 192 

 


[122]      We will first describe the nature and purpose of the s. 192  approval process.  We will then consider the philosophy that underlies s. 192  approval; the interests at play in the process; and the criteria to be applied by the judge on a s. 192  proceeding.

 

(a)   The Nature and Purpose of the Section 192  Procedure

 

[123]      The s. 192  approval process has its genesis in 1923 legislation designed to permit corporations to modify their share capital: Companies Act Amending Act,  1923, S.C. 1923, c. 39, s. 4.  The legislation’s concern was to permit changes to shareholders’ rights, while offering shareholders protection.  In 1974, plans of arrangements were omitted from the CBCA  because Parliament considered them superfluous and feared that they could be used to squeeze out minority shareholdersUpon realizing that arrangements were a practical and flexible way to effect complicated transactions, an arrangement provision was reintroduced in the CBCA  in 1978: Consumer and Corporate Affairs Canada, Detailed background paper for an Act to amend the Canada Business Corporations Act (1977), p. 5 (“Detailed Background Paper”).

 


[124]    In light of the flexibility it affords, the provision has been broadened to deal not only with reorganization of share capital, but corporate reorganization more generally.  Section 192(1) of the present legislation defines an arrangement under the provision as including amendments to articles, amalgamation of two or more corporations, division of the business carried on by a corporation, privatization or “squeeze-out” transactions, liquidation or dissolution, or any combination of these. 

 

[125]      This list of transactions is not exhaustive and has been interpreted broadly by courts.  Increasingly, s. 192  has been used as a device for effecting changes of control because of advantages it offers the purchaser: C. C. Nicholls, Mergers, Acquisitions, and Other Changes of Corporate Control (2007), at p. 76.  One of these advantages is that it permits the purchaser to buy shares of the target company without the need to comply with provincial takeover bid rules.

 

[126]       The s. 192  process is generally applicable to change of control transactions that share two characteristics: the arrangement is sponsored by the directors of the target company; and the goal of the arrangement is to require some or all of the shareholders to surrender their shares to either the purchaser or the target company. 

 


[127]       Fundamentally, the s. 192  procedure rests on the proposition that where a corporate transaction will alter the rights of security holders, this impact takes the decision out of the scope of management of the corporation’s affairs, which is the responsibility of the directors.  Section 192  overcomes this impediment through two mechanisms.  First, proposed arrangements generally can be submitted to security holders for approval.  Although there is no explicit requirement for a security holder vote in s. 192 , as will be discussed below, these votes are an important feature of the process for approval of plans of arrangement.  Second, the plan of arrangement must receive court approval after a hearing in which parties whose rights are being affected may partake.

 

(b)   The Philosophy Underlying Section 192 

 

[128]       The purpose of s. 192 , as we have seen, is to permit major changes in corporate structure to be made, while ensuring that individuals and groups whose rights may be affected are treated fairly.  In conducting the s. 192  inquiry, the judge must keep in mind the spirit of s. 192 , which is to achieve a fair balance between conflicting interests.  In discussing the objective of the arrangement provision introduced into the CBCA  in 1978, the Minister of Consumer and Corporate Affairs stated:

 

. . . the Bill seeks to achieve a fair balance between flexible management and equitable treatment of minority shareholders in a manner that is consonant with the other fundamental change institutions set out in Part XIV.

 

(Detailed Background Paper, at p. 6)

 


[129]       Although s. 192  was initially conceived as permitting and has principally been used to permit useful restructuring while protecting minority shareholders against adverse effects, the goal of ensuring a fair balance between different constituencies applies with equal force when considering the interests of non-shareholder security holders recognized under s. 192 Section 192  recognizes that major changes may be appropriate, even where they have an adverse impact on the rights of particular individuals or groups.  It seeks to ensure that the interests of these rights holders are considered and treated fairly, and that in the end the arrangement is one that should proceed. 

 

(c)   Interests Protected by Section 192 

 

[130]       The s. 192  procedure originally was aimed at protecting shareholders affected by corporate restructuring.  That remains a fundamental concern.  However, this aim has been subsequently broadened to protect other security holders in some circumstances.

 

[131]       Section 192  clearly contemplates the participation of security holders in certain situations.  Section 192(1)(f) specifies that an arrangement may include an exchange of securities for property.  Section 192(4)(c) provides that a court can make an interim order “requiring a corporation to call, hold and conduct a meeting of holders of securities”.  The Director appointed under the CBCA  takes the view that, at a minimum, all security holders whose legal rights stand to be affected by the transaction should be permitted to vote on the arrangement: Policy Statement 15.1, s. 3.08 .

 


[132]       A difficult question is whether s. 192  applies only to security holders whose legal rights stand to be affected by the proposal, or whether it applies to security holders whose legal rights remain intact but whose economic interests may be prejudiced.

 

[133]       The purpose of s. 192 , discussed above, suggests that only security holders whose legal rights stand to be affected by the proposal are envisioned.  As we have seen, the s. 192  procedure was conceived and has traditionally been viewed as aimed at permitting a corporation to make changes that affect the rights of the parties.  It is the fact that rights are being altered that places the matter beyond the power of the directors and creates the need for shareholder and court approval. The distinction between the focus on legal rights under arrangement approval and reasonable expectations under the oppression remedy is a crucial one.  The oppression remedy is grounded in unfair treatment of stakeholders, rather than on legal rights in their strict sense.

 

[134]       This general rule, however, does not preclude the possibility that in some circumstances, for example threat of insolvency or claims by certain minority shareholders, interests that are not strictly legal should be considered: see Policy Statement 15.1, s. 3.08 , referring to “extraordinary circumstances”.

 

[135]       It is not necessary to decide on these appeals precisely what would amount to “extraordinary circumstances” permitting consideration of non-legal interests on a s. 192  application.  In our view, the fact that a group whose legal rights are left intact faces a reduction in the trading value of its securities would generally not, without more, constitute such a circumstance.


 

(d)   Criteria for Court Approval

 

[136]       Section 192(3) specifies that the corporation must obtain court approval of the plan.  In determining whether a plan of arrangement should be approved, the court must focus on the terms and impact of the arrangement itself, rather than on the process by which it was reached.  What is required is that the arrangement itself, viewed substantively and objectively, be suitable for approval.

 

[137]       In seeking approval of an arrangement, the corporation bears the onus of satisfying the court that: (1) the statutory procedures have been met; (2) the application has been put forward in good faith; and (3) the arrangement is fair and reasonable: see Trizec Corp., Re (1994), 21 Alta. L.R. (3d) 435 (Q.B.), at p. 444.  This may be contrasted with the s. 241  oppression action, where the onus is on the claimant to establish its case. On these appeals, it is conceded that the corporation satisfied the first two requirements.  The only question is whether the arrangement is fair and reasonable.

 


[138]       In reviewing the directors’ decision on the proposed arrangement to determine if it is fair and reasonable under s. 192 , courts must be satisfied that (a) the arrangement has a valid business purpose, and (b) the objections of those whose legal rights are being arranged are being resolved in a fair and balanced way.  It is through this two-pronged framework that courts can determine whether a plan is fair and reasonable. 

 

[139]       In the past, some courts have answered the question of whether an arrangement is fair and reasonable by applying what is referred to as the business judgment test, that is whether an intelligent and honest business person, as a member of the voting class concerned and acting in his or her own interest would reasonably approve the arrangement: see Trizec, at p. 444; Pacifica Papers Inc. v. Johnstone (2001), 15 B.L.R. (3d) 249, 2001 BCSC 1069.  However, while this consideration may be important, it does not constitute a useful or complete statement of what must be considered on a s. 192  application. 

 


[140]       First, the fact that the business judgment test referred to here and the business judgment rule discussed above (at para. 40) are so similarly named leads to confusion.  The business judgment rule expresses the need for deference to the business judgment of directors as to the best interests of the corporation.  The business judgment test under s. 192 , by contrast, is aimed at determining whether the proposed arrangement is fair and reasonable, having regard to the corporation and relevant stakeholders.  The two inquiries are quite different.  Yet the use of the same terminology has given rise to confusion.  Thus, courts have on occasion cited the business judgment test while saying that it stands for the principle that arrangements do not have to be perfect, i.e. as a deference principle: see Abitibi-Consolidated Inc. (Arrangement relatif à), [2007] Q.J. No. 16158 (QL), 2007 QCCS 6830.  To conflate the business judgment test and the business judgment rule leads to difficulties in understanding what “fair and reasonable” means and how an arrangement may satisfy this threshold.

 

[141]       Second, in instances where affected security holders have voted on a plan of arrangement, it seems redundant to ask what an intelligent and honest business person, as a member of the voting class concerned and acting in his or her own interest, would do.  As will be discussed below (at para. 150), votes on arrangements are an important indicator of whether a plan is fair and reasonable.  However, the business judgment test does not provide any more information than does the outcome of a vote.  Section 192  makes it clear that the reviewing judge must delve beyond whether a reasonable business person would approve of a plan to determine whether an arrangement is fair and reasonable.  Insofar as the business judgment test suggests that the judge need only consider the perspective of the majority group, it is incomplete.   

 

[142]       In summary, we conclude that the business judgment test is not useful in the context of a s. 192  application, and indeed may lead to confusion.

 


[143]       The framework proposed in these reasons reformulates the s. 192  test for what is fair and reasonable in a way that reflects the logic of s. 192  and the authorities.  Determining what is fair and reasonable involves two inquiries: first, whether the arrangement has a valid business purpose; and second, whether it resolves the objections of those whose rights are being arranged in a fair and balanced way.  In approving plans of arrangement, courts have frequently pointed to factors that answer these two questions as discussed more fully below: Canadian Pacific Ltd. (Re) (1990), 73 O.R. (2d) 212 (H.C.); Cinar Corp. v. Shareholders of Cinar Corp. (2004), 4 C.B.R. (5th) 163 (Que. Sup. Ct.); PetroKazakhstan Inc. v. Lukoil Overseas Kumkol B.V. (2005), 12 B.L.R. (4th) 128, 2005 ABQB 789.

 

[144]       We now turn to a more detailed discussion of the two prongs.

 

[145]       The valid business purpose prong of the fair and reasonable analysis recognizes the fact that there must be a positive value to the corporation to offset the fact that rights are being altered.  In other words, courts must be satisfied that the burden imposed by the arrangement on security holders is justified by the interests of the corporation.  The proposed plan of arrangement must further the interests of the corporation as an ongoing concern.  In this sense, it may be narrower than the “best interests of the corporation” test that defines the fiduciary duty of directors under s. 122  of the CBCA  (see paras. 38-40).

 


[146]       The valid purpose inquiry is invariably fact-specific.  Thus, the nature and extent of evidence needed to satisfy this requirement will depend on the circumstances. An important factor for courts to consider when determining if the plan of arrangement serves a valid business purpose is the necessity of the arrangement to the continued operations of the corporation.  Necessity is driven by the market conditions that a corporation faces, including technological, regulatory and competitive conditions.  Indicia of necessity include the existence of alternatives and market reaction to the plan.  The degree of necessity of the arrangement has a direct impact on the court’s level of scrutiny.  Austin J. in Canadian Pacific concluded that

 

while courts are prepared to assume jurisdiction notwithstanding a lack of necessity on the part of the company, the lower the degree of necessity, the higher the degree of scrutiny that should be applied. [Emphasis added; p. 223.]

 

If the plan of arrangement is necessary for the corporation’s continued existence, courts will more willingly approve it despite its prejudicial effect on some security holders.  Conversely, if the arrangement is not mandated by the corporation’s financial or commercial situation, courts are more cautious and will undertake a careful analysis to ensure that it was not in the sole interest of a particular stakeholder.  Thus, the relative necessity of the arrangement may justify negative impact on the interests of affected security holders. 

 

[147]       The second prong of the fair and reasonable analysis focuses on whether the objections of those whose rights are being arranged are being resolved in a fair and balanced way. 

 


[148]       An objection to a plan of arrangement may arise where there is tension between the interests of the corporation and those of a security holder, or there are  conflicting interests between different groups of affected rights holders.  The judge must be satisfied that the arrangement strikes a fair balance, having regard to the ongoing interests of the corporation and the circumstances of the case.  Often this will involve complex balancing, whereby courts determine whether appropriate accommodations and protections have been afforded to the concerned parties.  However, as noted by Forsyth J. in Trizec, at para. 36:

 

[T]he court must be careful not to cater to the special needs of one particular group but must strive to be fair to all involved in the transaction depending on the circumstances that exist. The overall fairness of any arrangement must be considered as well as fairness to various individual stakeholders.

 

[149]       The question is whether the plan, viewed in this light, is fair and reasonable.  In answering this question, courts have considered a variety of factors, depending on the nature of the case at hand.  None of these alone is conclusive, and the relevance of particular factors varies from case to case.  Nevertheless, they offer guidance.

 

[150]       An important factor is whether a majority of security holders has voted to approve the arrangement.  Where the majority is absent or slim, doubts may arise as to whether the arrangement is fair and reasonable; however, a large majority suggests the converse.  Although the outcome of a vote by security holders is not determinative of whether the plan should receive the approval of the court, courts have placed considerable weight on this factor.  Voting results offer a key indication of whether those affected by the plan consider it to be fair and reasonable: St. Lawrence & Hudson Railway Co. (Re), [1998] O.J. No. 3934 (QL) (Gen. Div.).


 

[151]       Where there has been no vote, courts may consider whether an intelligent and honest business person, as a member of the class concerned and acting in his or her own interest, might reasonably approve of the plan: Re Alabama, New Orleans, Texas and Pacific Junction Railway Co., [1891] 1 Ch. 213 (C.A.); Trizec.

 

[152]       Other indicia of fairness are the proportionality of the compromise between various security holders, the security holders’ position before and after the arrangement and the impact on various security holders’ rights: see Canadian Pacific; Trizec.  The court may also consider the repute of the directors and advisors who endorse the arrangement and the arrangement’s terms.  Thus, courts have considered whether the plan has been approved by a special committee of independent directors; the presence of a fairness opinion from a reputable expert; and the access of shareholders to dissent and appraisal remedies: see Stelco Inc., Re (2006), 18 C.B.R. (5th) 173 (Ont. S.C.J.); Cinar; St. Lawrence & Hudson Railway; Trizec; Pacifica Papers; Canadian Pacific.

 


[153]       This review of factors represents considerations that have figured in s. 192  cases to date.  It is not meant to be exhaustive, but simply to provide an overview of some factors considered by courts in determining if a plan has reasonably addressed the objections and conflicts between different constituencies.  Many of these factors will also indicate whether the plan serves a valid business purpose.  The overall determination of whether an arrangement is fair and reasonable is fact‑specific and may require the assessment of different factors in different situations.

 

[154]       We arrive then at this conclusion: in determining whether a plan of arrangement is fair and reasonable, the judge must be satisfied that the plan serves a valid business purpose and that it adequately responds to the objections and conflicts between different affected parties.  Whether these requirements are met is determined by taking into account a variety of relevant factors, including the necessity of the arrangement to the corporation’s continued existence, the approval, if any, of a majority of shareholders and other security holders entitled to vote, and the proportionality of the impact on affected groups.

 

[155]       As has frequently been stated, there is no such thing as a perfect arrangement.  What is required is a reasonable decision in light of the specific circumstances of each case, not a perfect decision:  Trizec; Maple Leaf Foods.  The court on a s. 192  application should refrain from substituting their views of what they consider the “best” arrangement.  At the same time, the court should not surrender their duty to scrutinize the arrangement.  Because s. 192  facilitates the alteration of legal rights, the Court must conduct a careful review of the proposed transactions.  As Lax J. stated in UPM-Kymmene Corp. v. UPM-Kymmene Miramichi Inc. (2002), 214 D.L.R. (4th) 496 (Ont. S.C.J.), at para. 153: “Although Board decisions are not subject to microscopic examination with the perfect vision of hindsight, they are subject to examination.”

 


(2)   Application to These Appeals

 

[156]       As discussed above (at paras. 137-38), the corporation on a s. 192  application must satisfy the court that: (1) the statutory procedures are met; (2) the application is put forward in good faith; and (3) the arrangement is fair and reasonable, in the sense that: (a) the arrangement has a valid business purpose; and (b) the objections of those whose rights are being arranged are resolved in a fair and balanced way.

 

[157]       The first and second requirements are clearly satisfied in this case.  On the third element, the debentureholders no longer argue that the arrangement lacks a valid business purpose.  The debate before this Court focuses on whether the objections of those whose rights are being arranged were resolved in a fair and balanced way. 

 

[158]       The debentureholders argue that the arrangement does not address their rights in a fair and balanced way.  Their main contention is that the process adopted by the directors in negotiating and concluding the arrangement failed to consider their interests adequately, in particular the fact that the arrangement, while upholding their contractual rights, would reduce the trading value of their debentures and in some cases downgrade them to below investment grade rating.

 


[159]       The first question that arises is whether the debentureholders’ economic interest in preserving the trading value of their bonds was an interest that the directors were required to consider on the s. 192  application.  We earlier concluded that authority and principle suggest that s. 192  is generally concerned with legal rights, absent exceptional circumstances.  We further suggested that the fact that a group whose legal rights are left intact faces a reduction in the trading value of its securities would generally not constitute such a circumstance.

 

[160]       Relying on Policy Statement 15.1, the trial judge in these proceedings concluded that the debentureholders were not entitled to vote on the plan of arrangement because their legal rights were not being arranged; “[t]o do so would unjustly give [them] a veto over a transaction with an aggregate common equity value of approximately $35 billion that was approved by over 97% of the shareholders” (para. 166).  Nevertheless, the trial judge went on to consider the debentureholders’ perspective.

 


[161]       We find no error in the trial judge’s conclusions on this point.  Since only their economic interests were affected by the proposed transaction, not their legal rights, and since they did not fall within an exceptional situation where non‑legal interests should be considered under s. 192 , the debentureholders did not constitute an affected class under s. 192 .  The trial judge was thus correct in concluding that they should not be permitted to veto almost 98 percent of the shareholders simply because the trading value of their securities would be affected.  Although not required, it remained open to the trial judge to consider the debentureholders’ economic interests in his assessment of whether the arrangement was fair and reasonable under s. 192 , as he did.

 

[162]       The next question is whether the trial judge erred in concluding that the arrangement addressed the debentureholders’ interests in a fair and balanced way.  The trial judge emphasized that the arrangement preserved the contractual rights of the debentureholders as negotiated. He noted that it was open to the debentureholders to negotiate protections against increased debt load or the risks of changes in corporate structure, had they wished to do so.  He went on to state:

 

. . . the evidence discloses that [the debentureholders’] rights were in fact considered and evaluated.  The Board concluded, justly so, that the terms of the 1976, 1996 and 1997 Trust Indentures do not contain change of control provisions, that there was not a change of control of Bell Canada contemplated and that, accordingly, the Contesting Debentureholders could not reasonably expect BCE to reject a transaction that maximized shareholder value, on the basis of any negative impact [on] them.

 

((2008), 43 B.L.R. (4th) 1, 2008 QCCS 905, at para. 162, quoting (2008), 43 B.L.R. (4th) 79, 2008 QCCS 907, at para. 199)

 


[163]       We find no error in these conclusions.  The arrangement does not fundamentally alter the debentureholders’ rights.  The investment and the return contracted for remain intact.  Fluctuation in the trading value of debentures with alteration in debt load is a well-known commercial phenomenon.  The debentureholders had not contracted against this contingency.  The fact that the trading value of the debentures stood to diminish as a result of the arrangement involving new debt was a foreseeable risk, not an exceptional circumstance.  It was clear to the judge that the continuance of the corporation required acceptance of an arrangement that would entail increased debt and debt guarantees by Bell Canada: necessity was established.  No superior arrangement had been put forward, and BCE had been assisted throughout by expert legal and financial advisors, suggesting that the proposed arrangement had a valid business purpose. 

 

[164]       Based on these considerations, and recognizing that there is no such thing as a perfect arrangement, the trial judge concluded that the arrangement had been shown to be fair and reasonable.  We see no error in this conclusion.

 

[165]       The Court of Appeal’s contrary conclusion rested, as suggested above, on an approach that incorporated the s. 241  oppression remedy with its emphasis on reasonable expectations into the s. 192  arrangement approval process.  Having found that the debentureholders’ reasonable expectations (that their interests would be considered by the Board) were not met, the court went on to combine that finding with the s. 192  onus on the corporation.  The result was to combine the substance of the oppression action with the onus of the s. 192  approval process.  From this hybrid flowed the conclusion that the corporation had failed to discharge its burden of showing that it could not have met the alleged reasonable expectations of the debentureholders.  This result could not have obtained under s. 241 , which places the burden of establishing oppression on the claimant.  By combining s. 241 ’s substance with the reversed onus of s. 192 , the Court of Appeal arrived at a conclusion that could not have been sustained under either provision, read on its own terms. 


 

VI.      Conclusion

 

[166]       We conclude that the debentureholders have failed to establish either oppression under s. 241  of the CBCA  or that the trial judge erred in approving the arrangement under s. 192  of the CBCA .

 

[167]       For these reasons, the appeals are allowed, the decision of the Court of Appeal set aside, and the trial judge’s approval of the plan of arrangement is affirmed with costs throughout.  The cross-appeals are dismissed with costs throughout.

 

Appeals allowed with costs.  Cross‑appeals dismissed with costs.

 

Solicitors for the appellants/respondents on cross‑appeals BCE Inc. and Bell Canada:  Davies, Ward, Phillips & Vineberg, Montréal; Ogilvy Renault, Montréal.

 

Solicitors for the appellant/respondent on cross‑appeals 6796508 Canada Inc.:  Woods & Partners, Montréal.

 

Solicitors for the respondents/appellants on cross‑appeals Group of 1976 Debentureholders and Group of 1996 Debentureholders:  Fishman, Flanz, Meland, Paquin, Montréal.


Solicitors for the respondent/appellant on cross‑appeals Group of 1997 Debentureholders:  McMillan, Binch, Mendelsohn, Toronto.

 

Solicitors for the respondent Computershare Trust Company of Canada:  Miller, Thomson, Pouliot, Montréal.

 

Solicitor for the intervener Catalyst Asset Management Inc.:  Christian S. Tacit, Kanata.

 

Solicitors for the intervener Matthew Stewart:  Langlois, Kronström, Desjardins, Montréal.

 



*  Bastarache J. joined in the judgment of June 20, 2008, but took no part in these reasons for judgment.

 

Lexum

For 20 years now, the Lexum site has been the main public source for Supreme Court decisions.


>

Decisia

 

Efficient access to your decisions

Decisia is an online service for courts, boards and tribunals aiming to provide easy and professional access to their decisions from their own website.

Learn More