One of my mentors used to say to me that to be a good lawyer you needed to learn to skate backwards. The value of this metaphor is evident from the Divisional Court’s decision in Basegmez[i]. 

In Basegmez: 3 partners/shareholders invested in an hotel and condo project; 1 of them was responsible for day to day management;  the other 2 commenced an oppression remedy proceeding against the managing shareholder; the judge found that the managing shareholder engaged in oppressive conduct by issuing shares to himself to gain voting control, causing the corporation to enter deals with corporations he controlled and used the corporation’s money for his own purposes and, as such, ordered that a liquidator be appointed and the corporation’s assets be sold as part of a winding up of the corporation as the applicable remedy for the oppression.

The managing shareholder appealed to the Divisional Court.  The Divisional Court upheld the findings of oppressive conduct.  With respect to the managing shareholder’s argument that the appointment of a liquidator and a winding up was over-kill, and that the judge should have ordered the managing partner to buy out the others at fair market value, the Divisional Court, in part, said:

[21]           The appellants did not ask Lederman J. to order Mr. Akman to buy out the respondents’ shares at fair market value. Instead, they argued that the court should not interfere with the Akman`s control of Tarn. They did not address any process for separating the parties’ respective investments in the corporation. Lederman J. noted that he was faced “only with the choice of continuing the status quo or ordering that there be a winding up. No other option was provided by [the appellants]…”

[22]           Mr. Hall argues forcefully that Lederman J. erred in principle by failing to consider a different outcome despite his clients’ tactical decision to leave a stark all-or-nothing choice to the judge below. It is not an error for the judge to fail to impose an outcome that the appellants never sought.

Therein lies the value of providing the court, ‘in the alternative’, with a practical common-sense remedial solution, that takes into consideration everyone’s interests, just in case your client loses on oppression.  Be ready.  Your client may lose on the question of oppression despite the confidence you and your client have in the case. 

A good defence is as valuable as a good offence.    

[i] Basegmez et al. v. Akman et al., 2018 ONSC 812

Minority shareholders in a closely held private company are not gifted with the same powers of foresight that Steven Spielberg granted John Anderton (a.k.a Tom Cruise) and his ‘Pre-Crime’ unit in the 2002 seminal, futuristic crime-drama ‘Minority Report’. Set in the year 2054, the Pre-Crime unit relied upon mutated humans called “Precogs” who had an ability to visualize the future. Essentially, would-be murderers were arrested before they committed the actual crime.

Minority shareholders don’t have this power to ‘pre-tell’ in order to take unilateral ad hoc preventative steps to guard against harm or interference with their interests.  As a result, the task of protecting minority shareholders’ interests falls to the legislature and clever corporate lawyers to draft protections for the minority shareholders from future peril. For example, it is common in oppression remedy cases for the minority shareholder to claim they were excluded from the business and that vital financial information was withheld. Section 140 of the Ontario Business Corporations Act, (“OBCA”) requires that companies “prepare and maintain” certain enumerated documentation including “adequate accounting records” which has been interpreted to include financial statements. Furthermore, section 145 of the OBCA confers that any registered or beneficial owner of shares of a company may examine the records referred to in section 140 during the regular business hours of the company. Essentially, minority shareholders in private companies are entitled to unfettered access to the accounting records of the company. It’s not quite as good as an ability to tell the future, but it’s useful information that can be relied upon when it comes time to vote your shares. The Canadian Business Corporations Act has similar provisions at section 155.

Additionally, most readers of this newsletter will be familiar with the shotgun provision in a shareholders’ agreement. Of less notoriety, but also effective in protecting minority shareholders’ interests, is the tag-along right. A tag-along right, or “piggyback”, is generally a right that is attached to a minority shareholder’s interest. The tag-along right provides a minority shareholder with the ability to veto a sale by the majority shareholder to a potential purchaser, unless the purchaser also agrees to purchase the minority shareholder’s interest as well. The tag-along right protects the minority shareholder from a potential corporate takeover where the purchaser is intent on limiting the existing shareholder(s)’ ability to manage and control the company. Perhaps more importantly, it guarantees that the minority shareholder will not have to become a joint owner with an undesirable third party.

The third-party purchaser may be hesitant to purchase all of the outstanding shares of the minority shareholder who enjoys the tag-along right. Tag-along rights can be drafted to ameliorate this concern, while also affording protection for the minority shareholders, by requiring the purchaser to reduce the amount of purchased shares in proportion to the interests of the party enjoying the tag-along right. For example, say Shareholder A and Shareholder B each own 30% of the company. Shareholder A enters into an agreement with a purchaser to sell her interest in the company, and Shareholder B wishes to exercise her tag-along rights. If the tag-along right is structured as set out above, by exercising the tag-along right the purchaser would be required to purchase 15% of shareholder A’s shares and 15% of Shareholder B’s shares, or 30% in total just as originally contemplated. The party enjoying the tag-along right gets to sell a percentage of her interest and therefore reduce her overall risk.

Finally, section 185 of the OBCA provides that where a shareholders’ resolution is passed which involves a fundamental change in corporate operations, the objecting shareholders are afforded “disserting rights”. In essence, the objecting shareholders (who by definition hold a minority interest) can initiate a dissenting process which leads to their exit from the company after being paid fair market value for their shares. However, this section of the legislation is less effective than a shotgun provision because it only applies to resolutions that requires two thirds of shareholders’ approval to pass, and only those resolutions creating a fundamental change such as:

The timelines and deadlines for complying with the requirements of section 185 are technical and detailed, so corporate counsel should be engaged to assist with navigating this process.

Majority shareholders have an ability to appoint the officers and directors and, therefore, to indirectly control the company and, as the interests of the majority and minority may not always be aligned, you have fertile ground for sowing the seeds of discontent. As minority shareholders are not blessed with the power to see into the future and change the course of events, like John Anderton and his ‘Pre-Crime’ unit, they need to protect themselves by firstly having a shareholders’ agreement in place containing dispute resolution and ‘shotgun’ provisions and secondly by retaining competent corporate counsel. 

Much to Carolyn Dare Wilfred’s chagrin, everything, as it turns out. The result in Wilfred v. Dare is a cautionary tale for the commercial litigation bar and for corporate commercial solicitors and their shareholder clients. For the litigators, do not launch your client on an expensive[1] romp through the court system claiming relief under s. 248 of the Business Corporations Act (the “OBCA”) without, you know, bona fide oppressive conduct to complain of. For corporate commercial solicitors, get a unanimous shareholder agreement up-front that provides a mechanism to compel the purchase or sale of your shareholder client’s shares so he or she does not have to seek statutory relief when (not if) he or she wants to pull the ripcord

Background in Brief

The facts of this case, as in many intra-corporate disputes, are both sordid and convoluted. You can read all the gory details in the trial decision.

For my purposes, this is what you need to know:

Dare Foods was founded in 1889 and has always been controlled by the Dare family. It manufactures cookies, crackers, fine breads, and candy. Annual sales at the time of the hearing in February 2017 were approximately $300 million and it employed 1,200 people.

Carl Dare (“Carl”), the grandson of the founder, took over the business in the early 1940s and successfully managed it for over 50 years. Carl had three children: Bryan, Graham and Carolyn. By the time of the hearing, they were 71, 69, and 65 years old, respectively.

In 1980 Carl decided to freeze his estate, which resulted in the creation of Serad Holdings Limited (“Serad”) to hold the common shares in the various operating companies then existing. The common shares in Serad were issued to the newly created Dare Family Trust, with Bryan, Graham, and Carolyn as beneficiaries. At that time, Bryan, Graham, and Carolyn signed a shareholder agreement with the Dare Family Trust that contained a restriction on the transfer of Serad’s common shares.

This restriction was in the form of a right of first offer, which provided that if Bryan, Graham, or Carolyn wanted to sell their Serad common shares, they had to first offer the shares to the other two siblings. If both siblings declined the offer, the shares could be sold to any third party, but only upon the same terms.

Prior to the 21st anniversary of the Dare Family Trust, the common shares of Serad were distributed equally to Bryan, Graham and Carolyn Dare. Each received 140 common shares. At the time of the share transfer, Bryan, Graham and Carolyn confirmed and re-executed the shareholder agreement with the benefit of legal advice and agreed that their Serad shares could be held in personal holding companies.

In 2001, Carl redeemed 25% of Carolyn’s shares (35 shares) for $5 million and it was agreed that she would receive dividends of $335,000 on her remaining shares for five years. For her part Carolyn agreed not to try to sell her remaining shares for five years. By 2009 CRA issued a $15 million Requirement to Pay against Carolyn in connection with the 2001 share redemption and her emigration to New Zealand with her new spouse later that same year. Between 2013 and 2015, Carolyn’s efforts to earn an income separate from Dare Foods in New Zealand were floundering. One business was sold for $1.4 million, but the rest were eventually placed into liquidation and became the subject of litigation.

Carl died in 2014. Carolyn made an offer to her brothers for them to buy out her remaining stake in Serad for the price of $55 million. When they refused, she made an unsuccessful effort to sell her shares to a third party. She again made an offer to her brothers to buy her out, again at the price of $55 million. When that was also rejected, she commenced her oppression application.

The Trial Decision

Carolyn was of the view that her brother’s conduct was unfairly prejudicial to or unfairly disregarded her interests as a shareholder of Serad in two respects. First, the absence of a third-party market for her shares meant her brothers could, and were in her mind, holding her shares hostage in her time of financial need, presumably in an effort to avoid paying her what she deemed to be a fair market price. Second, Carolyn complained that she had no input on Serad’s dividend policy and that while the loan back program from Serad to Dare Holdings may have made good business sense, it privileged her brothers’ interests over hers as they drew other sources of income from the business.

Her brothers defended on the basis that neither of Carolyn’s complaints amounted to conduct that was unfairly prejudicial to or unfairly disregarded her interests as a shareholder of Serad and, therefore, did not engaged the equitable relief contemplated by s. 248 of the OBCA.

The court agreed and, following what appears to be the trial of the issue, dismissed the application. In putting its decision in context, the court specifically noted that this was not a case:

  1. of an “incorporated partnership” where Carolyn
    contributed sweat equity and was now being excluded;
  2. where irreconcilable differences among family
    members was hurting the business; or
  3. where her financial circumstances were
    attributable to her brothers’ conduct.

Instead the court reduced Carolyn’s position to its essence when it concluded: “She simply wants out”.

Relying on the seminal decision in BCE Inc., Re, the court posed a simple question: did Carolyn have a reasonable expectation of liquidity for her Serad shares?

The equally simple answer was: no.

The court found that Carolyn received her interest in Serad as a gift from the late Carl, who structured the shareholder agreement specifically to disincentivise his children from divesting their gift to third parties. Specifically, that agreement provided his children the opportunity to sell their own shares to the others, but it imposed no reciprocal obligation to buy them. Which is to say, it did not contain a shotgun or put right clause. Nor did it oblige the shareholders to have regard to each other’s personal financial circumstances in organizing the corporation’s affairs.

These facts, together with her execution of the shareholder agreement not once, but twice, and her prior efforts to market her shares to a third party when her earlier offers to sell her shares to her bothers were rebuffed, satisfied the court that her expectations would have to be tempered by the clear effect of the binding agreement.

Indeed, her reasonable expectations must include an account of her minority status. In this regard, the court noted that Carolyn’s minority interest in a closely held private corporation was, and always had been, of inherently limited liquidity. Relying on Senyi Estate v. Conakry Holdings Ltd., the court concluded that in the absence of a shareholder agreement that required the purchase of Carolyn’s shares, her reasonable expectations were limited to expecting:

  1. that the directors and officers will conduct the
    affairs of the corporation in accordance with the statutory and common law
    duties required of them in such capacities;
  2. that the shareholder will be entitled to receive
    annual financial statements of the corporation and to have access to the books
    and records of the corporation to the limited extent contemplated by the Act;
  3. that the shareholder will be entitled to attend
    an annual meeting of the corporation for the limited purposes of receiving the
    annual financial statements and electing the directors and auditor of the
    corporation, or will participate in the approval of such matters by way of a
    shareholder resolution;
  4. that a similar approval process will be
    conducted in respect of fundamental transactions involving the corporation for
    which such approval is required under the Act; and
  5. that the shareholder will receive the
    shareholder’s pro rata entitlement to dividends and other distributions payable
    in respect of the common shares of the corporation as and when paid to all of
    the shareholders.

As was observed in Miklos v. Thomasfield Holdings Ltd., the minority shareholder’s wish to sell her shares at the highest price possible is not the same as her interest in the other shareholders not interfering in her ability to sell those shares for the highest possible price. 

In short, the court held that the oppression remedy is “not designed to relieve a minority shareholder from the limited liquidity attached to his or her shares or to provide a means of exiting the corporation, in the absence of any oppressive or unfair conduct.”

On Appeal

In a unanimous decision authored by the Associate Chief Justice of the Superior Court, the Divisional Court dismissed Carolyn’s appeal.

The gist of the reasons for the dismissal is neatly summarized in the Associate Chief Justice’s observation that:

It was open to the application judge, after drawing this conclusion from the uncontradicted evidence, to conclude that the appellants had not demonstrated why it was just, fair or equitable for the court to order Bryan and Graham Dare to purchase Carolyn’s shares and to disregard what they believe to be the best interests of Serad Holdings Limited and Dare Holdings Limited and the long-term best interests of Dare Foods and its 1,200 employees.

Conclusion

The bottom line is this: the default position in Ontario is that there is no such thing as a ‘no fault’ divorce in an incorporated business. It is not good enough that you hate your business partner (I get it, holding monthly management meetings at 8:30 a.m. on Fridays is inhuman) or that you want to cash out when you see a more attractive franchise opportunity come along.

Instead, if you want to ask the court to extricate you and your capital from your bad shareholder relationship by forcing the other shareholders to buy you out, you are going to have to point to unfair or prejudicial action(s) on the part of the corporation or those other shareholders. That might be easier where you have sweat equity invested in the business and it is not being properly valued or where the corporation is akin to an incorporated partnership and there has been a relationship breakdown that harms its business operations, but all such oppression still has to be shown.

Of course, if you want a ‘no fault’ option (and who doesn’t?), then put yourself in a position to ask the court to enforce the shotgun clause, the put option, or the redemption rights that are clearly laid out in your unanimous shareholder agreement. You (and your new Starbucks franchise) will thank us.

[1] The partial indemnity costs claimed by the defendant brothers and their holding corporations after the trial was $333,872, inclusive of taxes and disbursements. The plaintiff’s own partial indemnity costs weighed in at $145,243. The trial judge ordered Wilfred to pay $270,000, inclusive. On the appeal, Wilfred and her holding corporation were stung with another $15,000 cost award.

The cost decision for the trial can be read here.

In 1975, I was 12 years old.  My world was consumed with daydreaming of having the powers of Steve Austin, The Six Million Dollar Man.  Every episode opened with “…we can rebuild him. We have the technology…better, stronger, faster”. 

I had no idea, while daydreaming about having the powers of Steve Austin, that there existed a parallel commercial litigation world inhabited by legislators, lawyers, judges and litigants and that the Government of Canada was enacting the Canada Business Corporations Act (“CBCA”), which introduced the statutory corporate oppression remedy. 

No 12-year old should be daydreaming about becoming a commercial litigation lawyer or preoccupied with legislative enactments. By that measure, I was a healthy, normal 12-year old living in the pre-video games/internet era relying mainly on television and my imagination for entertainment. 

43 years later I find myself living in a (more mature but less exciting) world where I reflect upon the powers of the statutory oppression remedy instead of The Six Million Dollar Man.   A “better, stronger, faster” remedy for addressing oppressive shareholder conduct.    

When the oppression remedy was incorporated into the CBCA in 1975 it was intended to be a ‘game-changer’.  It provided current and former shareholders, directors, and officers of a corporation, and any other “proper person”, in the eyes of the court, with the right to seek judicial intervention to fix any situation where the conduct of the corporation or its affiliates, or the powers of their respective directors, oppressed, was unfairly prejudicial to or unfairly disregarded the interests of any shareholder, creditor, director or officer.  The court had maximum discretion to tailor on appropriate remedy in the circumstances by being granted the overall power to make “any interim or final order it thinks fit”.    

In 1982 the Government of Ontario enacted the Business Corporations Act (“OBCA”) which largely resembled the CBCA, including the introduction of a provincial statutory oppression remedy.  As a result, federal corporations operating in Ontario have been subject to the CBCA oppression remedy provisions since 1975 and Ontario provincial corporations have been subject to similar oppression remedy provisions since 1982. The only substantive difference between the federal and provincial oppression remedy provisions are that the provincial provisions are broader in that they also cover conduct or the exercise of power which threatens to be oppressive.  In other words, the OBCA provisions expressly provide for judicial intervention to pre-empt threatened oppressive conduct. 

A significant amount of oppression remedy case-law has developed in Ontario over the past 44 years.  Since being professionally immersed in this provision since the start of my practice, the following are my high-level takeaways from the case-law on this remedy of maximum judicial discretion:

1.         The oppression remedy has lived up to the initial anticipation of being a broadly-based discretionary remedy available to the court to fashion the most appropriate remedy to address corporate unfairness or injustice.  It has resulted in aggrieved shareholders, directors, officers, and creditors/other proper persons being afforded an effective and powerful statutory remedy to rectify corporate unfairness and injustice.  However, the court will be careful to tailor the relief so as not to do more than is necessary to remedy the oppressive conduct;

2.         A settled two-part test has been established for judicial intervention.  First, the evidence must establish a reasonable expectation which has been breached. The typical factors to be considered in determining the existence of a reasonable expectation are commercial practice, the nature of the corporation, relationships, past practice, preventative steps, representations and agreements, and the fair resolution of conflicting interests.  The second part of the test requires a determination of whether the breached reasonable expectation amounts to oppression, unfair prejudice, or unfair disregard for the interests of the complaining party.  To get from the first step, to the second step, the complaining party needs to suffer harm or prejudicial consequences—that is what takes the matter from a breached reasonable expectation to actionable oppressive conduct;

3.         The oppression remedy has wider application or relevancy in smaller closely-held corporations.  There is a wider range of reasonable expectations, and thus the potential for breaches thereof amounting to oppression, in small closely-held corporations than in large publicly-traded corporations.  This is because it is not uncommon in small closely-held corporations for shareholders also to be directors and officers playing a role in managing the business, or otherwise to feel entitled to a ‘say’ in how the corporation is managed or the direction it takes, and, thus, more potential for diverging and conflicting interests;   

4.         The application of the oppression remedy test is largely fact sensitive—context matters. Whether a court will intervene, and what remedy it will fashion, largely depends on the facts of the case as determined by the presiding court.  As such, marshalling and mastering the facts and evidence in an oppression remedy case is essential; and

5.         Directors may have personal liability for corporate oppressive conduct.  The risk of personal exposure should provide directors with sufficient incentive to manage the business and affairs of a corporation in such a way as to honour the reasonable expectations of shareholders, other directors, officers and creditors impacted by the conduct of the corporation.

There are two important parts to proving or defending against an oppression remedy claim on behalf of a client. First, the lawyer needs to understand the oppression remedy legal framework.  Second, the lawyer needs to have a mastery of the relevant facts and evidence.  Just like the Six Million Dollar Man, every case needs to be rebuilt and analysed from the ground up.

This post also appeared in the February issue of The Snail,
the Middlesex Law Association’s monthly newsletter.

The firm’s team of Eric Grigg, Kyle MacLean, Jeff Van Bakel, and Jim LeBer will be teaching a day-long workshop at the Ontario Road Builders Association annual “Road Building Academy” in Toronto on Tuesday February 27th. The workshop is principally focused upon contractor’s strategies for dealing with the Ministry of Transportation, under the revised Dispute Resolution procedures incorporating the new Referee process.

It is a process the firm has frequently coached contractors through, since it was first introduced in February 2016, and now forms part of the OPPS November 2016 General Conditions of Contract.

The Ontario Divisional Court’s decision in T. Films S.A.. v. Cinemavault Releasing International Inc., 2016 ONSC 404 [1] is a reminder that “judgment proofing” is susceptible to attack under the statutory oppression remedy.[2]

Films S.A. involved a situation where T. Films S.A. retained Cinemavault Releasing International Inc. (“CRI”) to act as exclusive distributor of one of its motion pictures. The sales agency agreement, giving rise to this exclusive distributorship arrangement, contained a revenue sharing formula which required CRI to remit to T. Films S.A. a certain amount of the revenue derived by CRI’s distribution efforts. The distributorship arrangement between the parties began in 2006 and ended in 2011, when CRI ceased carrying on business.

Films S. A. claimed that CRI failed to remit the full amount of the revenues to which it was entitled under the distributorship agreement. In early 2012, T. Films S.A. commenced arbitration proceedings against CRI which resulted in an arbitral award being made in favour of T. Films S.A. In May of 2013, T. Films S.A. commenced court proceedings to enforce the arbitral award against CRI. These court proceedings included claims for, among other things, an oppression remedy against certain companies related to CRI and their common director and officer.

The basis of the oppression remedy claim was that on or about September 1, 2011, CRI restructured its business such that it ceased operations and was left without any assets.  In particular, the restructuring involved related companies stepping in to collect CRI’s accounts receivable, being its only material asset, and replacing it as sales agent for another related company. In short, the restructuring resulted in T. Films S.A. being unable to collect its arbitral award as CRI had become judgment proof.

There was no dispute that the CRI business had been transferred for no consideration.  More importantly, the directing mind of CRI and its related companies on cross examination refused to offer a specific purpose for the restructuring.  As such, the court held that there was no bona fide business purpose for the restructuring and thus that its purpose was to defeat CRI’s claim. The restructuring was found to constitute oppressive conduct and the directing mind and related companies were held to be liable for the arbitral award made against CRI.

The court in T. Films S.A. did not devote any analysis to describing the minimum requirements for when “judgment proofing” crosses the line into oppressive territory. The answer may lie in the definition of “complainant” as only a “complainant” qualifies for judicial relief under the statutory oppression remedy.

A complainant is defined as a current or former registered holder of security in a corporation, and security is defined to include a registered debt obligation, a current or former director or officer, and any other “proper person” in the “discretion of the court”.  Trade and judgment creditors (like T. Films S.A.), or any corporate stakeholder for that matter, will qualify as a “proper person”:

…if the act or conduct of the directors or management of the corporation which is complained of constituted a breach of the underlying expectations of the applicant arising from circumstances in which the applicant’s relationship with the corporation arose.[3]

The threshold for when “judgment proofing” crosses into oppressive territory is therefore when the judgment proofing is inconsistent with a reasonable expectation created in the complainant arising from the circumstances of the complainant’s relationship with the other party.

This was illustrated in the case of Bulls Eye Steakhouse.[4] In that case, the court found a tenant to be a complainant where the tenant obtained partial summary judgment against its landlord and, before damages could be assessed, the landlord sold its plaza, being its only asset, and used the net proceeds to pay amounts owing to its sole shareholder.  The court noted that typically a contingent creditor cannot reasonably expect a defendant corporation will be operated simply for the contingent creditor’s benefit in the event the contingent creditor becomes a judgment creditor.  However, in this case the tenant had a reasonable expectation of payment of any judgment from a sale of the plaza.  This reasonable expectation had been created because previously the tenant brought a failed motion to appoint a receiver over the plaza and in the context of that proceeding the landlord had filed affidavit material giving rise to a reasonable expectation that net funds from a sale of the plaza would be available to satisfy any judgment obtained.  As such, having found a reasonable expectation that the plaza would be available to satisfy any judgment awarded, the court held that the sale of the plaza and payment of the net sale proceeds to the sole shareholder crossed the “judgment proofing” line.

It is instructive to note that the Supreme Court of Canada has said that the following factors are to be considered in determining the existence of reasonable expectations to be protected by the court:

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.[5]

In conclusion, “judgment proofing” ventures into oppressive territory where a reasonable expectation, that an opposing party will not engage in “judgment proofing”, is breached.

Angelo C. D’Ascanio

 

[1] T. Films S.A.. v. Cinemavault Releasing International Inc., 2016 ONSC 404.

[2] See: Ontario Business Corporations Act, R.S.O. 1990, c. B. 16, as amended, section 248; and Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended, section 241.

[3] First Edmonton Place Ltd. v. 315888 Alberta Ltd. (1988), 60 Alta. L.R. (2d) 122 (Q.B.) at 152.

[4] 1413910 Ontario Inc. (c.o.b. Bulls Eye Steakhouse & Grill) v. McLennan (2008), 53 B.L.R. (4th) 115 (Ont. S.C.J.), additional reasons (2008), 53 B.L.R. (4th) 125 (Ont. S.C.J.), aff’d (2009), 309 D.L.R. (4th) 756 (Ont. C. A.)

[5] BCE Inc. v. 1976 Debentureholders, [2008] 3 S.C.R. 560 at para. 72.