Law Times

Law Times • November 17, 2008 NEWS ABCP set to wrap within two weeks BY KELLY HARRIS Law Times Purdy Crawford expects to wrap- up an agreement on asset-backed commercial paper by the end of November. A Last month the Osler Hoskin & Harcourt LLP counsel told the Financial Post that he was "frustrated as hell" over the re- structuring plan, 14 months in the making, being frozen as a result of the worldwide finan- cial crisis. However, he sounded more hopeful this past week that a resolution may soon be at hand. "I did come on rather strong," Crawford says of the previous in- terview. "We've had meetings go on, and we've had a lot this week and everybody is at the table, all the interested parties, and they all want to make a deal and get it done quickly, and I think they're all so far prepared to make the necessary compromise in their different positions so we can get it done. "Expectations [are] that we'll be done by end of November, early December." While not a new revelation fter several delays and court actions, Pan-Cana- dian Investors chairman they may end up being rewarded. "The new paper, I can't re- ally, who knows what it'll trade at with today's markets," he says. "Will it trade where it would have back in March? I don't know, probably not, so much of this on the market, and so much volatility. "But as the market settles 'Expectations [are] that we'll be done by end of November, early December,' says Purdy Crawford. that the timeline was by the end of November, Crawford did sound confident that the time- line would be met. What he was less confident about was whether the paper would have the same value as it did when the original agreement was struck in March 2008, prior to the collapse of financial markets. However, he still believes the ABCP has real value and if investors are patient down I would think it's not go- ing to go on indefinitely, it's good paper, over time I would think if you can wait a few months it would probably trade at a very good price." The restructuring plan will take short-term, third-party ABCP notes and create longer -term notes. ABCP refers to a creditor combining credit owed to them and selling that credit to another party, generally banks. This allows the creditor to free up debt owed to the company creating liquidity in the short term. About $32 billion in ABCP is held by third parties and with the subprime mortgage fiasco in the summer of 2007, the market for commercial paper all but evapo- rated. This made it more difficult to raise the needed capital to re- pay the short-term loans. About one-third of all ABCP Leave denied in 'inflammatory' jury address case BY ROBERT TODD Law Times trial due to "inflammatory, irrelevant, and improp- er" comments made in a closing address to a jury. Appeal court Justice David Doherty, Justice T Eleanore Cronk, and Justice Jean MacFarland last month dismissed the application following the Di- visional Court's ruling in Abdallah v. Snopek. They did not offer reasons for their decision. "I'm sure he's relieved and glad to hear it," Oat- ley Vigmond LLP lawyer Adam Little, counsel for Abdallah at appeal, tells Law Times regarding his client's response to the decision. Little says, "I was flabbergasted when I originally read the transcripts of the closing remarks" of the trial. Law Times' requests for comment on the appeal court's decision from the insurance company were not returned. The case involves Nezam Abdallah, an immigrant from the West Bank who was involved in an automo- bile collision on Aug. 11, 2001, in which his car was hit from behind by another car. Abdallah alleged that, as a result of the accident, he suffered from chronic pain, depression, and a sleep disorder. Defendants Bozena and Josef Snopek, while admitting liability, argued Abdallah did not sustain any injuries. In the appeal, Abdallah objected to comments made in a closing address by defence counsel Bill Evans of insurance company Aviva Canada Inc., wrote Justice Anne Marie Molloy in she and Justice Dennis Lane's majority decision. Justice Arthur Gans offered a dissenting opinion. Those comments included the following state- ment, according to the court document: he Ontario Court of Appeal has denied an application for leave to appeal a case in which the Divisional Court ordered a new "Ladies and gentlemen, this car accident should not be an opportunity for Mr. Abdallah to get a leg up on everyone else who comes to this country try- ing to start a new life. This accident should not be a down payment for a house, it shouldn't be an early retirement fund or seed capital for a new business anywhere. And I ask you, do not let that happen." The jury returned a verdict awarding Abdal- lah no damages after finding he had not sustained any injury, says the judgment. The Divisional Court majority found that the defence counsel's jury address was "inflammatory." "There is nothing wrong with counsel being passionate in support of his client," wrote Mol- loy. "However, jury addresses that are designed to influence jurors towards making decisions based on their emotional reactions to irrelevant issues, rather than on a rational and logical analysis of the evidence, are improper." The court also found that, although it would have been preferable for Abdallah's counsel to raise objections immediately following the de- fence's closing address, it was not fatal. The judgment says, "The courts have always recognized exceptions to the general rule, de- pending on the extent of the impropriety and the overarching requirement to see that justice is administered fairly." The court also found that the trial judge should have asked the lawyers away from jurors if they had any concerns regarding the jury address, and if none were raised, the judge should have brought up any problems and asked counsel to address them. The court found that the defence counsel, plaintiff 's counsel, and trial judge all made mis- takes in the trial, and that, "This court ought not to compound those mistakes." LT CANADIAN LEGAL NEWSWIRE it's fresh, it's free, it's weekly e-news! www.lawtimesnews.com ealogical 1-4_LT_Nov17_08.indd 1 11/11/08 2:59:45 PM Sign up today at www.lawtimesnews.com FROM THE EDITORS OF LAW TIMES AND CANADIAN LAWYER in Canada are held by third- party investors. In September 2007, the Pan-Canadian Inves- tors Committee was created with Crawford as the chairman to seek a settlement. An agreement to convert the short-term loans into longer- term loans was struck and taken to investors across Canada. Most of the investors were considered retail investors and following the Ontario Superior Court of Justice rules that a vote can go ahead on the restructur- ing plan. The vote is approved by 96 per cent of investors; however, a group of disgruntled investors representing about $3.2 billion appealed the ruling. In September, the appeal was dismissed, allowing for the re- structuring plan to go ahead. However, on Sept. 15, Lehman Brothers announced bankruptcy — the largest in U.S. history — sending worldwide stock markets into a downward spin. The deal, which was supposed to close by the end of October, was frozen. At the time they had hoped to seek a resolution by the end of November, that now seems more likely. LT PAGE 3

• Cover
• ABCP Wrapping
• The Hill
• Focus On Labour and Employment Law