January 28, 2025
In a roundup and analysis of the top 10 business decisions from 2024, Law360 Canada highlighted two significant cases that Torys’ lawyers were involved in.
In the top spot for most significant business decision is Earthco Soil Mixtures Inc. v. Pine Valley Enterprises Inc., 2024 SCC 20, which is the “most important contractual interpretation case decided in 2024,” said partner Jeremy Opolsky, who acted as lead counsel for the intervenor, the Canadian Chamber of Commerce.
In Earthco, the Supreme Court of Canada provided new guidance on the standard of review and interpretation of exclusion clauses in contracts.
“Contract interpretation is the bread and butter of what most business people think about,” Jeremy said. “What the decision teaches us is that interpretation is more about a factual matrix than magic words.”
The second most significant business decision of 2024, according to the Law360 article, is Aquino v. Bondfield Construction Co., 2024 SCC 31, which is now the leading precedent on the doctrine of corporate attribution and the “transfer at undervalue” provisions of the Bankruptcy and Insolvency Act.
Jeremy, who also acted as lead counsel in this case to the respondent KSV Restructuring Inc., says the Supreme Court’s ruling in Aquino goes beyond insolvency law.
“The SCC made it clear that its new attribution rules applied in any situation that requires a judge to determine the knowledge and intent of a corporation, and that includes cases relating to limitations and securities,” he said.
The Supreme Court used this case to reframe the law of corporate attribution in Canada generally, which will apply to all areas of law going forward. “In moving from a strict rule to a principled analysis based on the governing statute’s intent, the Supreme Court put Canada in line with the common law in, among others, the United Kingdom, Hong Kong and New Zealand,” Opolsky says.
In addition to these cases, Law360 also highlighted Riot Platforms, Inc v. Bitfarms Ltd., 2024 ONCMT 27 as a rare case in which the rights plan of a shareholder was challenged in Ontario in recent years. The case saw the Capital Markets Tribunal “rewrite the rules and clarify the circumstances in which it would exercise its public interest jurisdiction in the context of such plans,” the article explains.
“The decision brings consistency to the standard and provides more predictability than the case-by-case assessment that marked the pre-2016 era before the takeover regime was amended,” said partner and co-head of Torys’ M&A practice John Emanoilidis.
Going forward, the Capital Markets Tribunal will evaluate whether the applicant “has shown that the plan substantially undermined any of the ‘animating principles’ under the applicable provisions of Ontario securities law.” The Tribunal will also consider whether the existence of the plan has a public dimension that calls for its intervention.
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