Share on LinkedInShare on LinkedIn

ARTICLE · 05 APRIL 2023

Bidders Can Structure Offers To Discourage The Use Of Rights Of First Refusal

McMillan LLP
McMillan LLP
Contributor
McMillan LLP

McMillan LLP

The firm : McMillan LLP is one of Canada’s leading national law firms with offices in Montreal,...

View firm profile
Explore more from McMillan LLP

A recent decision of the Ontario Court of Appeal considers the duty of good faith and honest contractual performance in the context of an asset sale involving rights of first refusal ("ROFR").

CanadaLitigation, Mediation & Arbitration
W. Brad Hanna, FCIArb.
W. Brad Hanna, FCIArb.
Author LinkedIn connections

A recent decision of the Ontario Court of Appeal considers the duty of good faith and honest contractual performance in the context of an asset sale involving rights of first refusal ("ROFR"). In Greta Energy Inc. v. Pembina Pipeline Corporation,1 the Court rejected the plaintiffs' (who held ROFRs over two wind farm assets) allegations that the defendants (the vendor of the assets and the bidder) had manipulated the purchase price allocation between the assets in a bad faith attempt to prevent them from exercising their ROFRs.

The Court confirmed that vendors and bidders may act in their self-interest in a competitive bidding process. In doing so, the Court provides useful guidance on the obligations vendors and bidders owe to holders of ROFRs, particularly in situations where a package of assets are being sold en bloc.

We operate a free-to-view policy, asking only that you register in order to read all of our content. Please login or register to view the rest of this article.

Register for freeORLog in

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2025

View source

Related Articles

Legal Intelligence Newsletters: sign up for the latest legal and regulatory news on your chosen topics

Read more about

Related Comparative Guides

See more popular content from

Article

The Coldcard Exploit: Why Victims May Have Two Routes To Recovery

A five-year-old firmware defect in Coldcard hardware wallets has enabled attackers to systematically drain an estimated $116 million in Bitcoin from over 5,200 victims since July 2026. This unprecedented exploit raises critical questions about manufacturer liability and creates two distinct legal pathways for recovery: blockchain tracing against the perpetrators and potential litigation against Canadian manufacturer Coinkite for product defects that undermined the fundamental security promise of devices mar
CanadaLitigation, Mediation & Arbitration
WeirFoulds LLP
WeirFoulds LLP
Article

Plaintiffs Awarded A Total Of $800,000 In Damages For Defamation (Murdy v. Barrette)

A Canadian court awarded $800,000 in damages to a couple defamed by serious false allegations of sexual assault and criminal misconduct spread through social media. The case examines how factors like the severity of accusations, use of social media platforms, and a defendant's failure to mount a defense can dramatically escalate defamation damages beyond typical awards.
CanadaLitigation, Mediation & Arbitration
Gardiner Roberts LLP
Gardiner Roberts LLP
Article

Ontario’s New AI Rules: What Lawyers And Expert Witnesses Need To Know

Ontario's Rules of Civil Procedure now include strict amendments requiring lawyers and expert witnesses to certify the authenticity of every citation and authority used in court materials. These new anti-hallucination provisions impose significant penalties for presenting AI-generated fabricated authorities, fundamentally shifting accountability for artificial intelligence use in litigation.
CanadaLitigation, Mediation & Arbitration
Soloway Wright
Soloway Wright
Article

Not Beyond Reproach: Alberta Court Confirms Jurisdiction Over Alberta Energy Regulator

The Alberta Court of King's Bench has confirmed its jurisdiction to grant injunctive relief against the Alberta Energy Regulator despite a broadly worded statutory privative clause. This landmark decision, arising from Sumerian Oil & Gas's application to stay a suspension order affecting approximately 900 wells, represents one of the first considerations of the Supreme Court of Canada's recent Democracy Watch ruling and may significantly impact future disputes involving AER orders.
CanadaLitigation, Mediation & Arbitration
MLT Aikins LLP
MLT Aikins LLP
Article

Powering Up: Grid Access, Strategic Screening And Canada’s Emerging Data Centre Regimes

Canada is rapidly becoming a key destination for data centre investment, fueled by artificial intelligence and cloud computing growth. However, this expansion places unprecedented demands on electricity grids, water resources, and local communities. As federal and provincial governments introduce new frameworks to manage these resource challenges, developers and investors must navigate an increasingly complex landscape where power strategy...
CanadaEnergy and Natural Resources
McMillan LLP
McMillan LLP
Article

Cleared For Investment: Canada Opens The Door To Private Capital At Its Largest Airports

Prime Minister Mark Carney has announced plans to seek private investment through long-term concessions to operate Canada's four largest airports: Toronto Pearson, Vancouver, Montréal-Trudeau and Calgary. While the government would retain ownership of underlying land and assets, this represents a fundamental shift from the current not-for-profit airport authority model that has governed these facilities since the 1990s.
CanadaTransport
McMillan LLP
McMillan LLP
Article

Building Momentum: Canada Advances Major Projects Under The Building Canada Act

The federal government has published notices proposing to add the Mackenzie Valley Highway and Roberts Bank Terminal 2 to Schedule 1 of the Building Canada Act as projects of national interest. These potential listings, following a similar notice for the West Coast Oil Pipeline, provide the first practical indications of how the government may use the Act to advance major infrastructure projects through streamlined federal approvals while maintaining Indigenous consultation and environmental assessment requ
CanadaGovernment, Public Sector
McMillan LLP
McMillan LLP
Article

Changes To Fisheries Act Authorizations Regulations Streamline Application Process

On October 15, 2026, amendments to Canada's Fisheries Act Authorizations Regulations will streamline the application process for projects affecting fish and fish habitat. How will the new risk-based approach to offsetting requirements, deferred financial guarantees, and expanded ministerial powers reshape regulatory compliance for proponents navigating federal environmental approvals?
CanadaEnvironment
McMillan LLP
McMillan LLP
Article

Speculation Or Security: Canada’s Evolving Regulatory Framework For Prediction Markets

Canadian securities regulators have established a limited framework for prediction markets, restricting which event contracts can be offered to investors and under what conditions. While certain economic and financial forecasts may be traded through authorized dealers, contracts based on political events, sports, or entertainment remain prohibited, and compliance with securities law does not resolve potential exposure under criminal gambling provisions.
CanadaFinance and Banking
McMillan LLP
McMillan LLP
Article

New Performance Standards For Button/Coin Batteries And Products Containing Them Now In Effect In Canada

Health Canada has introduced mandatory performance standards for consumer products containing button/coin batteries, requiring immediate compliance from manufacturers, importers, advertisers, and sellers. Companies must now certify that their products, packaging, and labelling meet specified safety criteria or equivalent standards to mitigate ingestion hazards. This regulatory update offers a more flexible, outcomes-based approach compared to the prescriptive requirements of Reese's Law in the United States
CanadaConsumer Protection
McMillan LLP
McMillan LLP
Article

Canada’s Productivity Mega Deduction: Big Name, Big Opportunities For Business Aviation

Canada's proposed Productivity Mega Deduction would allow businesses to immediately write off the full cost of newly acquired capital assets, including aircraft and flight simulators, rather than spreading deductions over multiple years. This permanent change to the capital cost allowance regime could significantly benefit the business aviation industry, though taxpayers must carefully consider timing, income requirements, and documentation to maximize the deduction's value.
CanadaTax
McMillan LLP
McMillan LLP