Exhibit 5.6
July 8, 2003
CanWest Media Inc.
CanWest Finance Inc.
- - And -
CanWest Global Broadcasting Inc.
C/O CanWest Media Inc.
31st Floor, TD Centre
201 Portage Avenue
Winnipeg, Manitoba
Canada R3B 3L7
Re: Exchange of US$200.0 Million 7 5/8% Series A Senior Notes for Registered
7 5/8% Series B Senior Notes due 2013 of CanWest Media Inc.
________________________________________________________________________________
Dear Sirs/Mesdames:
A. INTRODUCTION
We have acted as Quebec counsel to CanWest Finance Inc. and CanWest Global
Broadcasting Inc. (referred to herein collectively as the "Quebec Parties" and
individually as a "Quebec Party") in connection with the offer (the "Exchange
Offer") by CanWest Media Inc. (the "Issuer") to exchange its Registered 7 5/8%
Series B Senior Notes due 2013 (the "Exchange Notes") for up to U.S.$200,000,000
of its outstanding 7 5/8% Series A Senior Notes due 2013 (the "Initial Notes").
This opinion is being delivered to you for filing as an exhibit to the
Registration Statement on Form F-4 (the "Registration Statement") to be filed by
the Issuer, the Quebec Parties and the other guarantors identified therein
including Global Communications Limited as general partner for Global Television
Network Quebec, Limited Partnership/Reseau de television Global Quebec, Societe
en commandite (the "Quebec Limited Partnership") (collectively, the
"Guarantors") with the U.S. Securities and Exchange Commission on or about the
date hereof pursuant to the U.S. Securities Act of 1933, as amended (the
"Securities Act"), relating to the registration of the Exchange Notes and the
related guarantee of the Guarantors (including the Quebec Parties) (the
"Guarantee") under the Securities Act. The Initial Notes were issued, and the
Exchange Notes will be issued, pursuant to an Indenture, dated as of April 3,
2003 (the "Indenture") among the Issuer, the Guarantors and The Bank of New
York, as Trustee.
B. SCOPE OF EXAMINATION
For the purposes of the opinions expressed hereinafter, we have examined
original executed, certified or facsimile copies of the Indenture and the
Guarantee.
We have also examined originals or photostatic, facsimile or certified copies of
such corporate records of the Quebec
Parties, certificates of public officers and representatives of the Quebec
Parties and such other documents that we have deemed relevant and necessary as
the basis for the opinions expressed herein.
As to certain questions of fact material to our opinions, we have also examined
and relied upon a certificate of an officer of the Issuer dated as of the date
hereof (the "Officer's Certificate").
Although we maintain the minute books of the Quebec Parties, we record therein
only those transactions and events that we are instructed by the Quebec Parties
to record. For the purposes of the opinions hereinafter expressed, we have
assumed that such instructions received by us are accurate and complete as
regards the transactions and events which have occurred and are relevant to
either one of the Quebec Parties. Notwithstanding the foregoing, we have no
knowledge that any fact set forth or reflected in the minute books of the Quebec
Parties is not accurate and complete. The use of the terms "knowledge" and the
expressions "to our knowledge" and similar expressions in this opinion letter to
qualify our opinion with respect to the existence or absence of any facts
referred to herein are intended to indicate that (a) during the course of our
representation of the Quebec Parties in connection with this transaction and
maintenance of the minute books of the Quebec Parties, no information has come
to the attention of our attorneys involved in such transaction which has given
us actual knowledge of the existence or absence of such facts and (b) we have
undertaken no independent investigation to determine the existence or absence of
such facts. With respect to the Quebec Limited Partnership, we have relied on a
Certificat d'attestation (Statutory Certificate) of even date issued by the
Inspector General of Financial Institutions of Quebec under An Act respecting
the Legal Publicity of Sole Proprietorships, Partnerships and Legal Persons
(Quebec).
In our examination of all documents, we have assumed:
(i) that all individuals had the requisite legal capacity;
(ii) that all signatures are genuine;
(iii) that all documents submitted to us as originals are complete and
authentic and all photostatic, certified, notarial, telecopied or other
copies conform to the originals;
(iv) the completeness, truth, currency and accuracy of all facts in official
public records and registers and certificates and other documents
supplied by public officials;
(v) that all facts addressed and statements made in the Officer's
Certificate are complete, true and accurate as of the date of this
opinion letter;
(vi) the due incorporation and the corporate status, power, capacity and good
standing of each party to the Indenture or the Guarantee other than the
Quebec Parties;
(vii) that each party to the Indenture or the Guarantee other than the Quebec
Parties has the necessary corporate power and authority to enter into
the Indenture or the Guarantee as the case may be and to perform its
obligations thereunder and has duly authorized, executed and delivered
the Indenture or the Guarantee as the case may be and that the
Indenture and the Guarantee constitute legal, valid and binding
obligations of such parties, enforceable against each of them in
accordance with their terms;
(viii) that the laws of the Province of Quebec govern the execution and
delivery of the Indenture and the Guarantee;
(ix) that neither the execution and delivery of the Indenture and the
Guarantee by each party thereto other than the Quebec Parties nor the
consummation of the transactions contemplated thereby conflicts with or
results in a breach of such party's constating documents or by-laws;
(x) that, under the laws applicable thereto, the obligations sought to be
guaranteed pursuant to the Guarantee are legal, valid and binding
obligations, enforceable in accordance with their terms;
(xi) that in providing the financial assistance contemplated in the Indenture
and the Guarantee, each of the Quebec Parties meets the financial tests
set forth in Section 123.66 of the Companies Act (Quebec).
Our opinion has been sought with respect to the laws of Province of Quebec only
and we have made no independent investigation of the laws of any jurisdiction
other than the laws of the Province of Quebec and the federal laws of Canada
applicable therein. The opinions hereinafter expressed are limited to the laws
of the Province of Quebec and the federal laws of Canada applicable therein in
effect on the date hereof ("Quebec Law").
C. OPINIONS
Based upon the foregoing and subject to the qualifications set forth
hereinafter, we are of the opinion that:
1. Each of the Quebec Parties (i) is a corporation duly incorporated, validly
existing and in good standing under the laws of the Province of Quebec, and (ii)
has the corporate power, capacity and authority to enter into and perform its
obligations under each of the Indenture and the Guarantee and to conduct its
business as now conducted and to own or lease its assets.
2. The Quebec Limited Partnership is a limited partnership registered under the
laws of the Province of Quebec;
3. The execution and delivery of and performance by each of the Quebec Parties
of each of the Indenture and the Guarantee and the consummation of the
transactions contemplated thereby have been duly authorized by all necessary
corporate action on the part of such Quebec Party.
4. Each Quebec Party has duly executed and delivered the Indenture and the
Guarantee.
5. None of the execution and delivery of or performance by each Quebec Party of
its obligations under the Indenture and the Guarantee or compliance by such
Quebec Party with the
terms and provisions thereof or the consummation of the transactions
contemplated therein will violate any provision of the constating documents or
by-laws of such Quebec Party.
6. None of the execution and delivery of the Indenture and the Guarantee by
each Quebec Party or performance by each Quebec Party of its obligations under
the Indenture and the Guarantee or compliance by such Quebec Party with the
terms and provisions thereof or the consummation of the transactions
contemplated therein will contravene any applicable provision of any law,
statute, rule or regulation applicable in the Province of Quebec of any
governmental authority.
D. QUALIFICATIONS
The opinions expressed above, insofar as they relate to the legality, validity,
binding nature and enforceability of the Guarantee, are expressly subject to
laws concerning bankruptcy, insolvency, reorganization, prescription and similar
laws relating to creditors' rights generally.
Furthermore, the legality, validity, binding nature and enforceability of the
Guarantee may be limited by general principles of equity and no opinion is given
as to any specific remedy that may be granted, imposed or rendered, including,
without limitation, equitable remedies such as specific performance and
injunctions.
The opinions expressed above regarding the legality, validity, binding nature
and enforceability of the Guarantee must be read as being subject to the
following qualifications:
(a) every creditor must act in good faith and exercise its rights and
recourse in a reasonable and non-abusive manner. Thus, without limiting
the generality of the foregoing, when a contractual provision grants a
creditor the right to take certain steps or make certain decisions in
its entire discretion, that discretion may only be exercised by the
creditor in a reasonable and non-abusive manner, notwithstanding the
express contractual terms;
(b) a Quebec Court has wide discretion to pronounce the nullity of a
contract of loan, order the reduction of the obligations arising
therefrom or revise the terms and conditions of their performance, to
the extent that it finds, in light of the risk and the surrounding
circumstances, that there has been lesion with respect to one of the
parties;
(c) a creditor is generally not entitled to resolve or resiliate a contract
where the debtor's default on which such right is based is of minor
importance;
(d) provisions which purport to allow the severance of invalid, illegal or
unenforceable provisions or restrict their effect may not be valid;
(e) debtors must be given a reasonable time to make payment of any amount
demanded in respect of any obligation payable on demand or without
notice and creditors will be precluded from enforcing the credit and
security documents relating to such obligation during such period of
time;
(f) provisions which suggest or provide that modifications, amendments or
waivers that are not in writing will not be effective, may not be valid;
(g) Article 2345 of the Civil Code of Quebec ("C.C.Q.") obliges the creditor
under a guarantee to provide, upon request from the guarantor, any
useful information respecting the content and the terms and conditions
of the principal obligation and the progress made in its performance and
accordingly, we express no opinion on the legality, validity or
enforceability of any provision of the Guarantee which may contravene
the provisions of said article;
(h) the provisions of Article 2355 C.C.Q. render null any renunciation in
advance of the benefit of subrogation by a guarantor; consequently, it
could be argued that, if as a result of the acts of any of the
guaranteed creditors, a Quebec Party could no longer be usefully
subrogated to the rights of such guaranteed creditors, or if a Quebec
Party were to be deprived of a security or a right which it could have
set up by subrogation, such Quebec Party would be discharged in
accordance with the provisions of Article 2365 C.C.Q., to the extent of
the prejudice that such Quebec Party has suffered, notwithstanding any
provisions of the Guarantee to the contrary;
(i) as the Guarantee may be construed to cover future or indeterminate
debts, the Quebec Party may, as permitted by Article 2362 C.C.Q.,
terminate its obligations as guarantor thereunder after three years (so
long as the guaranteed indebtedness has not become exigible) by giving
prior and sufficient notice to the Issuer, any other guarantor of such
indebtedness and the guaranteed creditors; notwithstanding such
termination of the Guarantee, each Quebec Party would remain liable for
guaranteed debts existing at the time of such termination;
(j) any provision of the Guarantee purporting to allow the Issuer or any of
the guaranteed creditors to increase the obligations guaranteed by the
Guarantee or otherwise amend such obligations without the consent of the
Quebec Parties might not be enforced by a Quebec Court and accordingly,
we express no opinion on the legality, validity or enforceability of the
Guarantee to the extent that such obligations are modified or amended
without the consent of the relevant Quebec Party; and
(k) Article 2341 C.C.Q. provides that a guarantee may not be contracted
under conditions more onerous than those applicable to the guaranteed
obligations. Consequently, to the extent a Quebec Court would be of the
opinion that any guarantee created under the terms of the Guarantee is
granted under more onerous conditions than the principal obligations
secured thereunder, such guarantee would be reducible to the measure of
the principal obligation.
The opinion expressed in paragraph 5 of Part C of this opinion letter does not
constitute an opinion on the legality, validity, binding nature or
enforceability of the Indenture and the Guarantee under Quebec Law.
Under the provisions of the Currency Act (Canada), courts in Canada are
precluded from rendering any monetary judgments in any currency other than the
lawful currency of Canada.
E. RELIANCE
This opinion is solely for the benefit of the addressees and their permitted
assigns and participants and not for the benefit of any other person, except
that Kaye Scholer LLP may rely on this opinion with respect to matters governed
by Quebec law for purposes of its opinion to the Issuer and the other addressees
identified therein dated on or about the date hereof. It is rendered solely in
connection with the transaction to which it relates. It may not be quoted, in
whole or in part, or otherwise referred to or used for any other purpose without
our prior written consent.
Notwithstanding the foregoing, this opinion is being delivered in connection
with the Registration Statement and we hereby consent to the filing of this
opinion as an exhibit to the Registration Statement. In giving such consent, we
do not thereby acknowledge that we come within the category of persons whose
consent is required under Section 7 of the Securities Act, or under the rules
and regulations of the U.S. Securities and Exchange Commission thereunder.
Yours truly,
/s/ FASKEN MARTINEAU DUMOULIN LLP
CERTIFICATE
TO: Osler, Hoskin & Harcourt LLP
Torys LLP
Pitblado
Fasken Martineau DuMoulin LLP
(collectively, "Counsel")
RE: Offer by CanWest Media Inc. (the "Company") to exchange the Company's
7-5/8% Series B Senior Notes due 2013 (the "Exchange Notes") for up to
U.S.$200,000,000 of the Company's outstanding 7-5/8% Series A Senior Notes
due 2013 (the "Initial Notes")
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In connection with the opinions to be provided by Counsel concerning the
transaction described above, the undersigned certifies for and on behalf of the
Company, and not personally, as follows:
1. The undersigned is the Associate General Counsel and Assistant Secretary of
CanWest Global Communications Corp. ("CanWest") and of the Company and as
such is familiar with the books and records, business and properties of the
Company and each of the corporations and partnerships listed on Schedule A
hereto (each, a "Canadian Guarantor" and, collectively, the "Canadian
Guarantors").
2. The corporate and partnership records and minute books of the Company and
each of the Canadian Guarantors provided to Counsel (as indicated on
Schedule A hereto) in connection with the offering of the Initial Notes on
April 3, 2003 are the original or duplicate corporate and partnership
records and minute books of the Company and each of the Canadian Guarantors
and contain all articles, partnership agreements and declarations and
by-laws of the Company and each of the Canadian Guarantors, current
directors', partners' and shareholders' registers of the Company and each
of the Canadian Guarantors and all resolutions and minutes of all meetings
or other proceedings of the shareholders, partners or directors (or any
committee thereof) of the Company or any of the Canadian Guarantors during
such periods noted in such corporate and partnership records and minute
books. Such corporate and partnership records and minute books are true,
correct and complete in all material respects and, since being made
available to such Counsel in connection with the offering of the Initial
Notes on April 3, 2003, there have been no changes, additions or
alterations thereto, other than those changes, additions or alterations
thereto, which have been delivered to such Counsel.
3. As of the date of this certificate, no winding up, liquidation,
dissolution, insolvency, bankruptcy, amalgamation, reorganization or
continuation proceedings have been commenced or are being contemplated by
CanWest, the Company or any of the Canadian Guarantors
and, after due inquiry, neither CanWest nor the Company has no
knowledge of any such proceedings having been commenced or being
contemplated by any other party.
- 2 -
4. No unanimous shareholders' agreement has been entered into with respect to
CanWest, the Company or any of the Canadian Guarantors.
5. The undersigned acknowledges that this certificate is to be relied upon by
Counsel in rendering their respective opinions, and may be relied upon by
the addressees of such opinions.
DATED July 7th, 2003.
/s/ Pamela Harrod
------------------------------------
Name: Pamela Harrod
Title: Associate General Counsel and
Assistant Secretary
SCHEDULE A
CANADIAN GUARANTORS
SUBSIDIARY COUNSEL
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1. 2846551 Canada Inc. (CBCA) Oslers
2. 3919056 Canada Ltd. (CBCA) Oslers
3. Apple Box Productions Sub Inc. (CBCA) Torys
4. BCTV Holdings Inc. (CBCA) Torys
5. Calgary Herald Group Inc. (CBCA) Oslers
6. CanWest Finance Inc./Financiere CanWest Inc. (Quebec) Faskens
7. CanWest Global Broadcasting Inc./Radiodiffusion CanWest Faskens
Global Inc. (Quebec)
8. CanWest Interactive Inc. (CBCA) Oslers
9. CanWest Media Sales Limited (CBCA) Torys
10. CanWest -- Montreal R.P. Holdings Inc. (CBCA) Oslers
11. CanWest Publications Inc. (CBCA) Oslers
12. CanWest -- Windsor R.P. Holdings Inc. (CBCA) Oslers
13. CHBC Holdings Inc. (CBCA) Torys
14. CHEK Holdings Inc. (CBCA) Torys
15. Clarinet Music Inc. (Ontario) Torys
16. Edmonton Journal Group Inc. (CBCA) Oslers
17. Fox Sports World Canada Holdco Inc. (CBCA) Torys
18. Global Centre Inc. (Ontario) Torys
19. Global Communications Limited (Manitoba) Pitblado
20. Global Television Centre Ltd. (CBCA) Oslers
21. Global Television Network Inc. (CBCA) Oslers
22. Global Television Network Quebec, Limited Faskens/Pitblado
Partnership/Reseau de Television Global Quebec, Societe
en commandite (Quebec)
23. Global Television Specialty Networks Inc. (CBCA) Oslers
24. Lonestar Holdco Inc. (CBCA) Torys
25. Lower Mainland Publishing Group Inc. (CBCA) Oslers
26. Montreal Gazette Group Inc. (CBCA) Oslers
27. Multisound Publishers Ltd. (CBCA) Oslers
28. Nanaimo Daily News Group Inc. (CBCA) Oslers
29. ONtv Holdings Inc. (CBCA) Torys
30. Ottawa Citizen Group Inc. (CBCA) Oslers
31. Pacific Newspaper Group Inc. (CBCA) Oslers
32. Port Alberni Times Group Inc. (CBCA) Oslers
33. ReachCanada Contact Centre Limited (CBCA) Torys
34. Regina Leader Post Group Inc. (CBCA) Oslers
35. RetroVista Holdco Inc. (CBCA) Torys
36. Saskatoon StarPhoenix Group Inc. (CBCA) Oslers
37. Southam Digital Inc. (CBCA) Oslers
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38. Studio Post & Transfer Sub Inc. (CBCA) Torys
39. Vancouver Island Newspaper Group Inc. (CBCA) Oslers
40. Victoria Times Colonist Group Inc. (CBCA) Oslers
41. Western Communications Inc. (CBCA) Oslers
42. WIC Mobile TV Inc. (CBCA) Oslers
43. WIC Television Production Sub Inc. (CBCA) Torys
44. WIC TV Amalco Inc. (CBCA) Oslers
45. Windsor Star Group Inc. (CBCA) Oslers
46 Xtreme Sports Holdco Inc. (CBCA) Torys