I hope the WSP lawyers have a copy of this precident setting case.
Searched a long time for this in my past posts. Nothing like reading what I wrote a year ago to make me realize how stupid things can get...anyway I hope this helps.
GLIMMER RESOURCES INC. - APPEAL DECISION FAVOURS GLIMMER
TORONTO, ONTARIO--
Glimmer Resources Inc. (VSE - GME) The Court of Appeal of Ontario
has rendered its decision on the appeal by Exall Resources Inc.
of two Orders of the Honourable Justice Rosenberg then of the
Ontario Court (General Division). The two Orders were made in the
context of an application brought by Glimmer for a declaration as
to the respective Participating Interests of Glimmer and Exall in
the joint venture gold mining property near Timmins, Ontario.
A Reference had been directed by Mr. Justice Rosenberg for the
primary purpose of the determining the respective Participating
Interests of Glimmer and Exall in the joint venture property. The
October, 1997 and February, 1998 Orders of Justice Rosenberg set
the "ground rules" for the hearing of the reference and provided
directions as to how both parties' Participating Interests were
to be calculated.
Cash Calls Apply to Both Glimmer and Exall
In a unanimous decision, the Court of Appeal agreed with Justice
Rosenberg in concluding that Exall, like Glimmer, was required to
fund the ongoing cash needs of the joint venture on a monthly
basis in proportion to its interest in the joint venture.
The joint venture agreement states that "If either party failed
to make its contribution to expenditures under a work plan then
the party failing to make the contribution shall have its
Participating Interest reduced." Exall missed the majority of the
required monthly cash contributions to the joint venture between
September 1996 and February 1997, while Glimmer contributed over
$2,125,000.
Exall argued that the determination of whether a party had failed
to make its required contribution could only occur at the end of
a twelve-month work plan and not monthly. This argument was
rejected by the Court of Appeal. The Court of Appeal also
affirmed the February 1998 Order of Justice Rosenberg that
directed that Exall was not entitled to "catch-up" or increase
its Participating Interest by over-contributing cash to the joint
venture in subsequent periods was dismissed. Costs were awarded
to Glimmer.
February, 1998 Order
The order of Justice Rosenberg made in February, 1998 adopted the
position of Glimmer with respect to the treatment of certain
disputed costs advanced by Exall. Exall's appeal from this order
was dismissed it its entirety by the Court of Appeal with costs
ordered in favour of Glimmer.
Relief from Forfeiture
In October, 1997 Justice Rosenberg heard arguments and gave an
Order that, should the Court's interpretation of the agreement
diminish Exall's share in the joint venture, as established on
the reference, Exall was not entitled to relief from that
forfeiture.
The Court of Appeal directed that:
"Since the case must go back before a judge of the
Ontario Court (General Division) after the reference is
completed, the best course is to direct that the issue as to
whether that appropriateness of granting relief from
forfeiture be decided at that time when all of the relevant
circumstances can be considered."
At this time there is no certainty as to the timing of completion
of the reference. Glimmer is aggressively pursuing an expeditious
resolution of this matter.
Glimmer is pleased that the decision of the Court of Appeal
upheld all of the rulings of Justice Rosenberg respecting the
interpretation of the joint venture agreement and the manner of
calculating the respective interests of the parties. Glimmer
believes that application of the principles set forth by Justice
Rosenberg will result in a significant change in ownership of the
Glimmer Mine. It is Glimmer's belief that the facts when
presented and established before the Court will not support the
remedy of relief from forfeiture sought by Exall.
For additional information contact:
Richard D. McCloskey, President
Glimmer Resources Inc.
Telephone (416) 364-2173
The Vancouver Stock Exchange neither approves nor disapproves of
the information contained herein. |
