Exhibit 5.6
February 26, 2004
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: US$41,880,457 - 10 5/8% Senior Subordinated Notes due 2011 of CanWest
Media Inc.
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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 preparation and filing
of Amendment No. 1 to the Registration Statement on Form F-3 (the "Registration
Statement") filed today by CanWest Media Inc. (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 under the Securities Act of US$41,880,457 aggregate principal
amount of the Issuer's 10 5/8% senior subordinated notes due 2011 (the "Notes")
and the related guarantee of the Guarantors (including the Quebec Parties) (the
"Guarantee") offered for sale from time to time by the selling securityholder
identified in the prospectus forming part of the Registration Statement. The
Notes were issued pursuant to an Indenture, dated May 17, 2001 and a
Supplemental Indenture dated August 6, 2002 (the "Indenture") among the Issuer,
the Guarantors and The Bank of New York, as Trustee.
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A. 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 Pamela Harrod, Associate General Counsel and
Assistant Secretary 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 Parties and the Quebec Limited
Partnership, we have relied on a Certificat d'attestation (Statutory
Certificate) of even date issued for each 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;
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(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").
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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.
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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;
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(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.
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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 and to the use of our name
under the caption "Legal Matters" in the prospectus included therein. 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