BCE Inc. v. 1976 Debentureholders
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''BCE Inc v 1976 Debentureholders'', 2008 SCC 69 (CanLII), 0083 SCR 560 is a leading decision of the Supreme Court of Canada on the nature of the duties of
corporate director A corporation is an organization—usually a group of people or a company—authorized by the State (polity), state to act as a single entity (a legal entity recognized by private and public law "born out of statute"; a legal person in legal ...
s to act in the best interests of the corporation, "viewed as a good corporate citizen". This case introduced the principle of fair treatment as an organizing principle in Canadian corporate law.


Facts

BCE Inc. was the subject of multiple offers involving a
leveraged buyout A leveraged buyout (LBO) is one company's acquisition of another company using a significant amount of borrowed money ( leverage) to meet the cost of acquisition. The assets of the company being acquired are often used as collateral for the loa ...
, for which an auction process was held and offers were submitted by three groups. All three offers contemplated the addition of a substantial amount of new debt for which Bell Canada, a whollyowned subsidiary of BCE, would be liable. One of the offers, which involved a consortium of three investors, was determined by BCE's directors to be in the best interests of BCE and BCE's shareholders. That was to be implemented by a plan of arrangement under s. 192 of the ''
Canada Business Corporations Act The ''Canada Business Corporations Act'' (CBCA; french: Loi canadienne sur les sociétés par actions) is an act of the Parliament of Canada regulating Canadian business corporations. Corporations in Canada may be incorporated federally, under t ...
'', which was approved by 97.93% of BCE's shareholders but opposed by a group of financial and other institutions that held
debenture In corporate finance, a debenture is a medium- to long-term debt instrument used by large companies to borrow money, at a fixed rate of interest. The legal term "debenture" originally referred to a document that either creates a debt or acknowle ...
s issued by Bell Canada and sought relief under the
oppression remedy In corporate law in Commonwealth countries, an oppression remedy is a statutory right available to oppressed shareholders. It empowers the shareholders to bring an action against the corporation in which they own shares when the conduct of the c ...
under s. 241 of the ''CBCA''. They also alleged that the arrangement was not "fair and reasonable" and opposed s. 192 approval by the court. Their main complaint was that, upon the completion of the arrangement, the short‑term trading value of the debentures would decline by an average of 20 percent and could lose investment grade status.


Judgment


Superior Court of Quebec

Silcoff J. of the
Superior Court of Quebec The Superior Court of Quebec (french: Cour supérieure du Québec) is a superior trial court in the Province of Quebec, in Canada. It consists of 157 judges who are appointed by the federal government. Appeals from this court are taken to the Que ...
approved the arrangement as fair and dismissed the claim for oppression. On appeal, the
Quebec Court of Appeal The Court of Appeal of Quebec (sometimes referred to as Quebec Court of Appeal or QCA) (in French: ''la Cour d'appel du Québec'') is the highest judicial court in Quebec, Canada. It hears cases in Quebec City and Montreal. History The Court wa ...
held: :* the arrangement had not been shown to be fair and held that it should not have been approved, :* the directors had not only the duty to ensure that the debentureholders' contractual rights would be respected, but also to consider their reasonable expectations, and :* since the requirements of s. 192 of the ''CBCA'' were not met, the court found it unnecessary to consider the oppression claim. BCE and Bell Canada appealed the overturning of the trial judge's approval of the plan of arrangement, and the debentureholders cross‑appealed the dismissal of the claims for oppression.


Supreme Court

In a unanimous decision, the SCC ruled that the appeals should be allowed and the cross‑appeals dismissed. In summary, it held that the s. 241 oppression action and the s. 192 requirement for court approval of a change to the corporate structure are different types of proceedings, engaging different inquiries. The Court of Appeal's decision rested on an approach that erroneously combined the substance of the s. 241 oppression remedy with the onus of the s. 192 arrangement approval process, resulting in a conclusion that could not have been sustained under either provision, read on its own terms. ;Remedies under the ''CBCA'' The SCC reviewed the various remedies available to shareholders that have developed under the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
, and that have subsequently been expanded upon in the ''CBCA'': :* a derivative action under s. 239 :* a civil action against the directors for breach of
duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establi ...
:* an oppression action under s. 241 :* contesting a plan of arrangement under s. 192 In the present case, only ss. 192 and 241 were being raised. ;Nature of the oppression remedy In assessing a claim of oppression, a court must answer two questions: :* Does the evidence support the reasonable expectation asserted by the claimant? and :* Does the evidence establish that the reasonable expectation was violated by conduct falling within the terms "oppression", "unfair prejudice" or "unfair disregard" of a relevant interest? Where conflicting interests arise, it falls to the directors of the corporation to resolve them in accordance with their fiduciary duty to act in the best interests of the corporation, "viewed as a good corporate citizen".''BCE Inc.'', par. 66, 81 ;Approval process for a plan of arrangement In seeking court approval of an arrangement, the onus is on the corporation to establish that :* the statutory procedures have been met; :* the application has been put forth in good faith; and :* the arrangement is "fair and reasonable". To approve a plan of arrangement as fair and reasonable, courts must be satisfied that :(a) the arrangement has a valid business purpose, and :(b) the objections of those whose legal rights are being arranged are being resolved in a fair and balanced way. Courts on a s. 192 application should refrain from substituting their views of the "best" arrangement, but should not surrender their duty to scrutinize the arrangement. Under s. 192, only security holders whose legal rights stand to be affected by the proposal are envisioned. It is a fact that the corporation is permitted to alter individual rights that places the matter beyond the power of the directors and creates the need for shareholder and court approval. However, in some circumstances, interests that are not strictly legal could be considered. The fact that a group whose legal rights are left intact faces a reduction in the trading value of its securities generally does not, without more, constitute a circumstance where non‑legal interests should be considered on a s. 192 application. In this case, the debentureholders did not constitute an affected class under s. 192, and the trial judge was correct in concluding that they should not be permitted to veto almost 98 percent of the shareholders simply because the trading value of their securities would be affected. It was clear to the judge that the continuance of the corporation required acceptance of an arrangement that would entail increased debt and debt guarantees by Bell Canada. No superior arrangement had been put forward and BCE had been assisted throughout by expert legal and financial advisors. Recognizing that there is no such thing as a perfect arrangement, the trial judge correctly concluded that the arrangement had been shown to be fair and reasonable.


Significance

The judgment expanded on the SCC's previous ruling in '' Peoples Department Stores Inc. (Trustee of) v. Wise'' concerning the latitude of discretion accorded to corporate directors, providing they follow certain procedural steps. There has been discussion as to whether these two judgments provide a coherent or complete summary of the law in that area. There has also been extensive debate about the Court's ''
obiter ''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",'' Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or ar ...
'' comment on the duties of directors: In addition, ''BCE Inc.'' effectively mandates the use of fairness hearings by courts in consideration of plans of arrangements, as was notably practiced during the litigation that took place on the 2010 share buyout by
Magna International Magna International Inc. is a Canadian parts manufacturer for automakers. It is one of the largest companies in Canada and was recognized on the 2020 ''Forbes'' Global 2000. The company is the largest automobile parts manufacturer in North Americ ...
.


The Principle of Fair Treatment

Canadian corporate law contains an organizing principle of fair treatment within the Supreme Court's notion that directors are to act in the business interests of the corporation, "viewed as a good corporate citizen". A connection exists between corporate law's principle of fair treatment and contract law's principle of good faith established in Bhasin v. Hrynew – the Court's concern for standards of conduct that are both ethical and commercially reasonable. The much higher fiduciary duty has strong conceptual differences from the principle of good faith, yet shares this common underlying policy governing corporate and commercial relationships.


Relationship with the Fiduciary Duty

Where conflicting interests arise, it falls to the directors of the corporation to resolve them in accordance with their fiduciary duty. This is defined as a "tripartite fiduciary duty", composed of: #an overarching duty to the corporation, which contains #a duty to protect shareholder interests from harm, and #a procedural duty of "fair treatment" for relevant stakeholder interests. This tripartite structure encapsulates the duty of directors to act in the "best interests of the corporation, viewed as a good corporate citizen". Following ''BCE'', the
Court of Appeal of British Columbia The British Columbia Court of Appeal (BCCA) is the highest appellate court in the province of British Columbia, Canada. It was established in 1910 following the 1907 Court of Appeal Act. The BCCA hears appeals from the Supreme Court of British ...
noted that "breach of fiduciary duty ... 'may assist in characterizing particular conduct as tending as well to be 'oppressive', 'unfair', or 'prejudicial'". More recently, scholarly literature has clarified the connection between the oppression remedy and the fiduciary duty:


References

{{reflist, 2 Supreme Court of Canada cases Canadian corporate case law 2008 in Canadian case law