Brookdale International Partners, L.P. v. Sentry Select Capital Corp.

Brookdale International Partners, L.P. v. Sentry Select Capital Corp.

The phrase 'determined as at such Valuation Date' applies to both methods of calculating Net Realized Proceeds per Unit; therefore the redemption price must be determined as at the Valuation Date and, where the manager failed to sell the requisite pro rata share by that date and did not properly determine that sale was 'not practicable', method (ii) applies. The appeal was dismissed.

Citation
2008 ONCA 442
Parties
Applicant (respondent): Brookdale International Partners, L.P.; Applicant (respondent): Brookdale Global Opportunity Fund; Respondent (appellant): Sentry Select Capital Corp.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 June 2008
Procedural Posture
Civil / Appeal to the Court of Appeal for Ontario From Judgment of the Superior Court of Justice (spence J.)
Outcome
Appeal dismissed.
Legal Topics
Declaration of Trust Interpretation, Redemption Rights, Valuation Date, Net Realized Proceeds Per Unit, Manager's Duties and Discretion
Source Language
English
Trusts Securities Law Contract Law Commercial Law Declaration of Trust Interpretation Redemption Rights Valuation Date Net Realized Proceeds Per Unit +1 more

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Parties

Brookdale International Partners, L.P.

Applicant (respondent)

Brookdale Global Opportunity Fund

Applicant (respondent)

Sentry Select Capital Corp.

Respondent (appellant)

Procedural Posture

Civil / Appeal to the Court of Appeal for Ontario From Judgment of the Superior Court of Justice (spence J.)

Legal Issues

  1. 1 Whether the phrase 'Net Realized Proceeds per Unit determined as at such Valuation Date' applies to both alternative valuation methods in the declaration of trust
  2. 2 Whether the manager may use proceeds from dispositions effected after the Valuation Date to calculate Net Realized Proceeds under method (i)
  3. 3 Whether failure by the manager to sell the pro rata share before the Valuation Date without a determination that sale was 'not practicable' mandates using method (ii)

Ratio Decidendi

The phrase 'determined as at such Valuation Date' applies to both methods of calculating Net Realized Proceeds per Unit; therefore the redemption price must be determined as at the Valuation Date and, where the manager failed to sell the requisite pro rata share by that date and did not properly determine that sale was 'not practicable', method (ii) applies. The appeal was dismissed.

Court Disposition

Appeal dismissed.

Orders

  • Appeal dismissed.
  • Costs awarded to the respondents fixed at $15,000 inclusive of G.S.T. and disbursements.