Canadian Lawyer InHouse

19 CANADIANLAWYERMAG.COM/INHOUSE MARCH/APRIL 2019 goes back to the debate over contractual interpretation — textual or contextual," notes Paul Davis, a lawyer at Paliare Ro- land Rosenberg Rothstein LLP in Toronto. "Our Supreme Court has been moving away from a textual interpretation," says Davis, who is the co-author of a paper in the Canadian Business Law Journal about the issues raised in Resolute as a result of the de- cision of the Ontario Court of Appeal. The indemnity in 1985 was part of an agreement between the Ontario govern- ment and Reed Ltd. and Great Lakes Forest Products Limited. A predecessor company of Reed was responsible in the 1960s for the release of untreated mercury waste into the local river systems. Great Lakes agreed to purchase the Dryden plant in 1979 after the province, which did not want the pulp and paper operations to close, agreed to limit the potential liability from litigation. The deal also required Great Lakes to spend a signifi cant amount of money to upgrade and modernize the plant. 1996 Great Lakes is known as Bowater (which by 2012, became Resolute FP Canada). 1998 Weyerhaeuser purchases assets from Bowater related to the Dryden operations. Title on the waste disposal site was conveyed initially to Weyerhaeuser and leased back to Bowater. 2000 The waste disposal site is re-conveyed to Bowater in August 2000. 2007 The Dryden plant is sold by Weyerhaeuser to Domtar. 2009 The company now known as AbitibiBowater Inc., which owns the waste disposal site, fi les for CCAA protection. Ownership of the site is transferred to a numbered company that is in receivership. 2011 The receiver abandons the waste disposal site and is discharged from any liability in the court proceedings. A court-ordered report indicates that the site still has a lifespan of about 35 years. The Ontario government names a number of parties, including Weyerhaeuser and Bowater-related companies, to pay $273,063 for environmental work on the site. It also makes clear that this would not relieve the companies from complying with future orders. 2013 Weyerhaeuser commences an action against the province in Ontario Superior Court. Resolute is added as an interested party. 2016 Justice Glenn Hainey fi nds that the 1985 indemnity covered the costs of the environmental order and that Weyerhaeuser and Resolute were to be reimbursed by the province. 2017 The Ontario Court of Appeal, in a 2-1 decision, upholds the motion judge's ruling that the indemnity applied. However, it found that Resolute's claim failed, because it did not fi t the defi nition of a legal successor to Great Lakes. It also directed the Superior Court to determine what, "if any" rights Weyerhaeuser possessed as assignee of the indemnity. 2018 The Supreme Court of Canada, in a decision issued in October, grants leave to appeal. 20 20 20 fi fi files fi fi e fi files ). ) A settlement with the First Nations bands impacted by the pollution was not reached until 1985.

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