2018 QCCA 686, 2018 QCCA 686

O'Leary Funds Management c. Boralex inc. 2018 QCCA 686 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-027409-184 (500-11-039696-105) MINUTES OF THE HEARING DATE: April 24, 2018 THE HONOURABLE ROBERT M. MAINVILLE, J.A. PETITIONER COUNSEL O’LEARY FUNDS MANAGEMENT LP CANOE FINANCIAL LP CANOE GLOBAL GROWTH AND INCOME FUND CANOE CANADIAN HIGH INCOME FUND O’LEARY CANADIAN EQUITY INCOME FUND O’LEARY STRATEGIC YIELD FUND CANOE GLOBAL BALANCED FUND O’LEARY GLOBAL YIELD OPPORTUNITIES FUND O’LEARY HARD ASSET INCOME FUND CANOE «GO CANADA!» FUND CORP. Mtre LOUIS mARTIN O’NEIL M tre Guillaume charlebois (Davies Ward Philips & Vineberg) RESPONDENT COUNSEL

BORALEX INC. 7503679 CANADA INC. BORALEX POWER INCOME FUND Mtre LAURENT NAHMIASH Mtre ANTHONY FRANCESCHINI (Dentons Canada LLP) IMPLEADED PARTY COUNSEL MARCEL AUBUT CLAUDE BOIVIN MICHEL CÔTÉ JEAN E. DOUVILLE ALAIN RHÉAUME Mtre VINCENT CÉRAT-LAGANA (Fasken Martineau DuMoulin) DESCRIPTION: Application for leave to appeal from a judgment rendered on March 2, 2018 and rectified on March 12, 2018, by the Honourable Marie-Anne Paquette, Superior Court, District of Montreal Clerks: Annick Nguyen & Elisabeth Lepage Courtroom: RC-18 HEARING 10:22 Commencement of the hearing. Identification of counsel.

Submission by Mtre O’Neil Exchange between the Court and Mtre Nahmiash concerning the motion for leave to appeal 10:31 Exchange between the Court and Mtre Nahmiash concerning the Superior Court judgment 10:34 Comments by Mtre Cérat-Lagana Submission by Mtre O’Neil 10:36 Rebuttal by Mtre Nahmiash BY THE COURT: The motion is granted, with costs to follow for the reasons to be filed subsequently in the minutes of the hearing. Conclusion of the hearing. (

s) Annick Nguyen & Elisabeth Lepage Clerks

BY THE JUDGE JUDGMENT [ 1 ] The appellants (the “O’Leary Funds”) seek leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Marie-Anne Paquette) rendered on March 2, 2018 (rectified on March 12, 2018) dismissing their proceedings against the respondents (collectively “Boralex”) seeking declaratory relief and payment of an aggregate amount of $6,661,002.

The O’Leary Funds also seek the suspension of the proceedings before the Superior Court during the appeal. [ 2 ] The O’Leary Funds held approximately 10% of the outstanding units of the Boralex Power Income Fund (the “Fund”), a trust established by a trust agreement governed by Quebec law. Boralex inc. successfully bought all the units in the Fund, including those of the O’Leary Funds.

This acquisition followed a special meeting of the unitholders which took place on October 21, 2010 and which approved the forced acquisition of all the units of the Fund by a majority of 85.87% of the units. [ 3 ] The O’Leary Funds challenge the legality of this forced acquisition and seek compensation for the sale of their units below a price which they consider fair. [ 4 ] On January 8, 2018, the Honourable Marie-Anne Paquette granted a joint request to split the proceedings pursuant to

article 211 of the Code of Civil Procedure . The split allowed the judge to determine, first, the liability of the respondents with respect to the claims of the O’Leary Funds. The respondents’ cross-applications for damages against the O’Leary Funds remained to be decided, if need be, at the second stage of the proceedings. [ 5 ] On March 2, 2018, the Superior Court dismissed the O’Leary Funds claims. Since the proceedings were split, the O’Leary Funds now seek leave to appeal in light of the decisions of this Court in Droit de la famille – 161983 , 2016 QCCA 1314 and Club de golf Val-Bélair inc c.

Construction CRD inc. , 2016 QCCA 1324 . [ 6 ] The criteria to grant leave are satisfied in this case. The judgment in first instance determines a large part of the dispute opposing the parties and raises significant issues, including issues relating to the protection of minority unitholders. [ 7 ] Since the respondents’ claims for damages against the O’Leary Funds are largely dependent on the outcome of the O’Leary Funds’ appeal, it is appropriate to suspend the proceedings before the Superior Court pending the appeal.

Indeed, should the appeal be allowed, it is unlikely that the respondents’ claims for damages would proceed before the Superior Court. Moreover, should the appeal be dismissed, the respondents will still have the opportunity to proceed with their claims for damages and, should they be successful, the delays in obtaining judgment as a result of the appeal may be compensated through the payment of interest.

FOR THESE REASONS, THE UNDERSIGNED: [ 8 ] GRANTS the application for leave to appeal; [ 9 ] AUTHORIZES the appellants to institute an appeal from the judgment rendered by the Superior Court, District of Montreal (the Honourable Marie-Anne Paquette) on March 2, 2018 (rectified on March 12, 2018); [ 10 ] ORDERS that the appeal proceed by way of briefs;

[ 11 ] ORDERS that a single brief be prepared for all appellants, the first four parts of the Argument being limited to a maximum of 30 pages , which brief shall be filed with the Court and notified to the other parties by June 28, 2018 ; [ 12 ] ORDERS that a single brief be prepared for all respondents, the first four parts of the Argument being limited to a maximum of 30 pages , which brief shall be filed with the Court and notified to the other parties by September 6, 2018 ; [ 13 ] ALLOWS the impleaded party Computershare Trust Company of Canada, if it deems it appropriate, to prepare a memorandum, the Argument of which shall not exceed 10 pages , which memorandum shall be filed with the Court and notified to the other parties by September 6, 2018 ; [ 14 ] ALLOWS the impleaded parties Marcel Aubut, Claude Boivin, Michel Côté, Jean E.

Douville and Alain Rhéaume, if they deem it appropriate, to prepare a single joint memorandum, the Argument of which shall not exceed 10 pages , which memorandum shall be filed with the Court and notified to the other parties by September 6, 2018 ; [ 15 ] ORDERS that the hearing of the appeal be set at a maximum duration of 150 minutes (60 minutes for the appellants, 60 minutes for the respondents, 15 minutes for the impleaded party Computer Share Trust Company of Canada and 15 minutes for the impleaded parties Marcel Aubut, Claude Boivin, Michel Côté, Jean E.

Douville and Alain Rhéaume); [ 16 ] ORDERS the suspension of the proceedings in the Superior Court until the appeal has been decided. [ 17 ] THE WHOLE , costs to follow. robert m. mainville , J.A.