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opinion TO P CO U R T TAL E S BY PHILIP SLAYTON for commercial disputes? The right forum With little business law expertise, is the Supreme Court really the best court to decide complex matters like the BCE case? BY P HILI P SLAY TON shares doubled, and the stock price moved with every question asked from the bench. The courtroom was full of people with BlackBerrys thumbing out updates, and the market responded in real time to every nuance of the debate. Thirty people had stood in line most of the night as paid sitters, holding spots for lawyers or hedge fund executives. I don't think the Supreme Court has ever seen anything like it, and it reminded us all that the court does much more that decide Charter of Rights cases. As everyone who has been awake for the last few months W knows, in May the Quebec Court of Appeal, in a 5-0 deci- sion, held that a special committee of BCE's board of directors failed to give proper consideration to the interests of certain bondholders when it approved a leveraged buyout. Corporate types and their clever lawyers inveighed against the Quebec court's decision from the moment it was released. The smartest 24 A UGUST 2008 www. Law ye rmag.com hat a circus! On the morning of June 17, while the Su- preme Court of Canada was hearing BCE v. A Group of 1976 Debentureholders, the trading volume of BCE corporate lawyer I know, Al Hudec of Farris Vaughan Wills & Murphy LLP in Vancouver, wrote in The Globe and Mail: "I do not believe there is a mergers and acquisitions lawyer in Canada who, before the Court of Appeal decision, would have advised the BCE special committee that it had a duty to balance the interests of BCE's shareholders and bondholders. . . ." The Su- preme Court, sitting seven judges (mysteriously, justices Morris Fish and Marshall Rothstein were absent), unanimously over- ruled the Quebec Court of Appeal and, predictably, the world (or most of it) applauded. I'm one of very few who think the Court of Appeal may have got it right (I should disclose that I own some of the bonds in question), but I don't want to get into that. I want to look at how the Supreme Court handled this matter from a proce- dural point of view — a largely overlooked aspect of the whole drama — and whether the Supreme Court is an appropriate venue for deciding this kind of business law problem. The Quebec Court of Appeal handed down its "shocking" (according to the newspapers) judgement on May 21. All com- mentators agreed that, were the decision to stand, the BCE buy- out was dead. Under various agreements, the transaction had to close by the end of June. The only hope for BCE was to obtain leave to appeal to the Supreme Court, argue the appeal, and have the appeal decision overruled — in less than six weeks. How likely was that? Very, was my initial view. First of all, it would be a strong judicial statement for the Supreme Court ILLUSTRATION: TODD JULIE