The Labrador Iron Ore Royalty Income Fund (LIORIF) announced on June 27, 2001 that it will appeal Mr. Justice James M. Farley’s decision declaring its unitsholder rights plan to be void ab initio. On May 7, 2001, the trustees of LIORIF (a publicly traded income trust) issued a press release announcing the adoption of a unitholder rights plan in the form of a corporate poison pill to prevent a creeping takeover. In order to create the unitholder rights plan, the trustees purported to amend the declaration of trust that governs LIORIF to permit the issuance of new units in the event that the plan is triggered. The trustees’ announcement was made shortly after the conclusion of the Rio Tinto Canadian Investments Ltd. (a wholly owned subsidiary of Rio Tinto mining) public offer for the fund, through which it acquired 20.3 per cent of the fund’s units. The plan would have prevented Rio Tinto from acquiring any further units of the fund without triggering the plan and its dilutive effect. Rio Tinto brought an application in the Commercial List of the Ontario Superior Court of Justice seeking a declaration that the plan and the amendments to the declaration of trust were void. Mr. Justice James M. Farley granted the application and held that the trustees did not have the power to amend the declaration because of a specific prohibition in the declaration against amendments that “reduce the fractional undivided interest in the trust assets represented by any unit without the consent of the holder of such unit.”
Mark A. Gelowitz of Osler, Hoskin & Harcourt LLP acted for Rio Tinto. Paul Steep and Lisa Constantine of McCarthy Tétrault acted for the trustees of the fund. The trustees have filed an appeal from Mr. Justice Farley’s decision to the Ontario Court of Appeal. On June 21, 2001, Mr. Justice Jean-Marc Labrosse dismissed a motion by the trustees to stay Mr. Justice Farley’s order pending appeal.