T-2732-79
Attorney General of Canada on behalf of the
Minister of Industry, Trade and Commerce, and
Attorney General of Canada (Applicant)
v.
Fallbridge Holdings Limited and Central Cartage
Company (Respondents)
Trial Division, Jerome A.C.J.—Ottawa, April 2
and 9, 1981.
Foreign investment review — Application to amend previous
order made pursuant to s. 19 of Foreign Investment Review
Act — Previous order restrained trading in shares in Canadian
company which jointly owned an international bridge with an
American company — American company owned all shares in
Canadian company at time of application — Previous amend
ment provided that respondent could cause American company
to dispose of its entire investment in Canadian company —
Respondent, Central Cartage Company, seeks an amendment
which would permit sale of entire investment in Canadian
company pursuant to specific agreements — Application dis
missed as it involves interpretation of agreements which have
not been executed and for adjudication of legal consequences
of future events — Foreign Investment Review Act, S.C.
1973-74, c. 46, s. 19.
APPLICATION.
COUNSEL:
John Scollin, Q.C. and Duff Friesen for
applicant.
No one appearing for respondent Fallbridge
Holdings Limited.
Gordon Henderson, Q.C. and E. Binavince for
respondent Central Cartage Company.
SOLICITORS:,
Deputy Attorney General of Canada for
applicant.
McCarthy & McCarthy, Toronto, for
respondent rallbridge Holdings Limited.
Goodman & Goodman, Toronto, for respond
ent Central Cartage Company.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This is an application on behalf
of respondent Central Cartage Company for an
order amending and clarifying the order made by
the Honourable Mr. Justice Gibson, on June 19,
1979, extended by further orders made by this
Court on July 18, 1979, August 15, 1979, October
2, 1979, January 11, 1980, and amended by order
of the Honourable Mr. Justice Mahoney on March
31, 1980.
I do not propose to review the complex back
ground of this matter in great detail. It is, I
believe, sufficient to understand that the matter
concerns ownership of the Ambassador Bridge be
tween Detroit, Michigan, and Windsor, Ontario,
which has always been in private hands. The cor
porate history is rather intricate, but, in its sim
plest terms, shows that the Canadian half of the
bridge has been owned by The Canadian Transit
Company, a company incorporated in 1921 by Act
of the Parliament of Canada. The American half
of the bridge has been owned by Detroit Interna
tional Bridge Company, which was incorporated in
the State of Michigan. At the time of the original
application to this Court, all of the shares of the
Canadian company were owned by the Michigan
company. The matter came to this Court when the
American company purported to deal with shares
in the Canadian company in a manner which
brought it to the attention of the Foreign Invest
ment Review Agency and which caused the Attor
ney General of Canada to apply to the Court for
an order restraining trading in the shares until the
Minister could complete the necessary review
under the Foreign Investment Review Act'. The
result of that application was the order of Gibson
J., dated June 19, 1979, which restrained trading
in the shares, as requested. On more than one
occasion, that order was extended, and on March
31, 1980, Mahoney J. further extended, and also
amended the order through the addition of these
words:
... provided for greater certainty, however, that the Respond
ent, Central Cartage Company, shall be deemed not to contra
vene the said Order by causing Detroit International Bridge
Company (formerly Ambri, Inc.) to dispose of its entire invest
ment in The Canadian Transit Company, in conformity with
the said Act, to any other person (including Fallbridge Hold
ings Limited), and provided further that the Respondents are at
liberty to apply to this Court for dissolution of this Order at
any time they believe it to be oppressive.
' S.C. 1973-74, c. 46.
These extensions and amendments are clearly
contemplated by the language of section 19 of the
Foreign Investment Review Act, which reads as
follows:
19. (1) Where, on application on behalf of the Minister, a
superior court is satisfied that a non-eligible person or a group
of persons any member of which is a non-eligible person is
about to make or has made a proposed or actual investment in
circumstances in which
(a) the Governor in Council has not, by order, allowed the
investment and is not deemed to have allowed it, or
(b) although the Governor in Council has, by order, allowed
the investment or is deemed to have allowed it, the terms and
conditions on which the investment is about to be made or
has been made, as the case may be, vary materially frc:n
those disclosed in any notice in writing given under subsec
tion 8(1), (2) or (3) and in any other information or evidence
given under this Act in relation thereto,
the court may, by order, if at that time the proposed investment
has not yet been made, enjoin that person or group of persons
from making the proposed investment, and if at that time the
investment has already been made, enjoin that person or group
of persons from taking any particular action specified in the
order in relation to the actual investment that in the opinion of
the court would prejudice or be likely to prejudice the ability of
a superior court, on any subsequent application under section
20, effectively to accomplish the end to which any order under
that section may be directed.
(2) Subject to subsection (3), at least forty-eight hours notice
of an application for an order under subsection (1) shall be
given on behalf of the Minister to the person or to each member
of the group of persons against whom the order is sought.
(3) Where a superior court to which an application is made
under subsection (I) is satisfied that
(a) subsection (2) cannot reasonably be complied with, or
(b) the urgency of the situation is such that service of a
notice in accordance with subsection (2) would not be in the
public interest,
it may proceed with the application ex parte but any order
made under subsection (1) by the court on ex parte application
shall have effect only for such period, not exceeding ten days,
as is specified in the order.
(4) An order under subsection (1)
(a) shall be in such terms as the court that makes the order
considers necessary and sufficient to meet the circumstances
of the case; and
(b) subject to subsection (3), shall have effect for such period
of time as is specified therein.
(5) A superior court that makes an order under subsection
(1), at any time and from time to time on application on behalf
of the Minister or by any person to whom the order is directed,
notice of which has been given to the persons to whom the order
is directed or to the Minister and all other such persons, as the
case may be, may by a further order,
(a) notwithstanding subsections (3) and (4), continue the
order, with or without modification, for such definite period
as is stated in the further order or, where the Governor in
Council by order refuses to allow the investment to which the
order relates, indefinitely; or
(b) revoke the order.
(6) Where an order is made under subsection (1) and notice
in writing has been given or is thereafter given under subsection
8(1), (2) or (3) to the Agency of the proposed or actual
investment to which the order relates, the Minister shall pro
ceed as expeditiously as possible to assess whether or not, in his
opinion, having regard to the factors enumerated in subsection
2(2), the investment is or is likely to be of significant benefit to
Canada; and where the Governor in Council subsequently
allows or is deemed to have allowed the investment, the order
made under subsection (1) is thereupon revoked.
Counsel for the applicant contends that, since
this section speaks, in subsection 19(1), of invest
ments that a person is about to make, or of
proposed investment, and in subsection (5) speaks
of amendments, at any time and from time to
time, that the intent of the section is wide enough
to permit this application which asks that the
order be further amended by adding thereto the
following paragraph:
That Central Cartage Co., shall be deemed not
to contravene this Order by causing Detroit
International Bridge Company (formerly
Ambri, Inc.) to dispose of its entire investment
in The Canadian Transit Company without fur
ther approval under the Foreign Investment
Review Act in accordance with the following
transactions:
(i) Detroit International Bridge Company shall
sell all its common stock in The Canadian
Transit Company to McKinlay Transport Lim
ited in accordance with and under the conditions
defined in the Stock Purchase Agreement
attached hereto as Exhibit "A".
(ii) McKinlay Transport Limited shall transfer
all the common capital stock held by it in The
Canadian Transit Company to Canbridge Hold
ings Limited, a corporation organized under the
laws of Ontario, in exchange for all the common
and all the preferred shares of Canbridge Hold
ings Limited, pursuant to -the terms and subject
to the conditions of the Stock Exchange Agree
ment attached hereto as Exhibit "B".
(iii) McKinlay Transport Limited shall sell all
of the common capital stock of Canbridge Hold
ings Limited, being all " of the issued common
capital stock and the only voting stock of Can-
bridge Holdings Limited, to Tufick J. Moroun,
a landed immigrant of Canada, who is not a
non-eligible person under the Foreign Invest
ment Review Act, pursuant to the terms and
subject to the conditions of the Stock Purchase
Agreement attached hereto as Exhibit "C",
whereby Canbridge Holdings Limited becomes
a person not non-eligible under the Foreign
Investment Review Act.
(iv) This Order shall be effective immediately
but shall expire by its own terms within one
hundred and eight (108) days after the date
hereon if Canbridge Holdings Limited shall not
be the owner of all the stock of The Canadian
Transit Company as shown by a Certificate of
Counsel filed with this Court, except that such
date shall be extended upon a proper showing
that the interested parties have requested and
are awaiting favourable tax treatment rulings
from the Department of National Revenue in
Canada and the Internal Revenue Service in the
United States.
After careful consideration, I must conclude,
however, that this application goes far beyond a
mere amendment to the order of this Court. It
clearly constitutes an application for interpretation
of agreements which have not been executed and
for adjudication of the legal consequences of
events that lie in the future. Certain appellate
courts, in very special circumstances, have jurisdic
tion to make this kind of adjudication, but, in my
opinion, there is no precedent for the reception of
this kind of application by this Court.
ORDER
This application is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.