Law360 Canada (May 15, 2023, 9:03 AM EDT) -- Appeal by Western Energy Services (Western) from the chambers judge’s order which upheld an applications judge’s dismissal of Western’s application for summary judgment and granted Savanna Energy Services’ (Savanna) summary dismissal application. Western argued the chambers judge erred in finding the Arrangement Agreement was spent or made nugatory by Total’s take-up of Savanna shares. Western, Savanna, and Total were publicly traded drilling, well-servicing and oilfield equipment rental companies in Canada. Total made an unsolicited take-over bid to acquire all outstanding shares of Savanna. The Total Offer included a secondary waivable condition that required more than 66 2/3 per cent of the Savanna shares be tendered. Savanna and Western entered into an Arrangement Agreement. The Western bid contained a provision that Savanna would be obligated to pay a termination fee under prescribed circumstances enumerated in the Arrangement Agreement. Total announced it was waiving the secondary more than 66 2/3 per cent minimum tender condition. Savanna and Western entered into an Amending Agreement. Total took up approximately 51.6 per cent of Savanna shares and became the majority shareholder of Savanna. Savanna issued a termination notice of the Arrangement Agreement, as amended by the Amending Agreement. Western filed its statement of claim against Savanna alleging a termination fee event had occurred and the termination fee was payable. Savanna filed a summary dismissal application seeking to dismiss Western’s claim and Western filed its cross-application for summary judgment. The applications judge granted Savanna’s application for summary dismissal and dismissed Western’s application for summary judgment. On appeal, the chambers judge agreed with the applications judge that the contest turned on the “Termination Fee provisions of the Arrangement Agreement”. She agreed the waiver of the secondary more than 66 2/3 per cent minimum tender condition did not amend or modify the Total Offer as Total’s right to waiver was always contained in the Total Offer and always known to Western....