Andrew Hanrahan

This decision concerns an appeal under section 45(2) of the Arbitration Act, 1991, from an arbitral award regarding four disputes arising out of a major public-private partnership infrastructure project (Highway 427 expansion).

The appellant, His Majesty the King in Right of Ontario (as represented by the Minister of Transportation and Ontario Infrastructure and Lands Corporation), challenged the arbitral tribunal’s interpretation of the Project Agreement on four issues: the Crossfall Dispute, the Zenway Boulevard Dispute, the 407 ETR Dispute, and the 2014-2016 Dispute.

The court held that the tribunal correctly identified and applied the principles of contractual interpretation, found no extricable errors of law, and dismissed the appeal.

In the context of Laurentian University's CCAA proceedings, Thorneloe University appealed a Claims Officer's decision valuing its loss of commercial value claim at zero following the disclaimer of their Federation Agreement.

Thorneloe argued the Claims Officer erred by applying a lost profits approach rather than a loss of business value approach, relying on an expert report valuing the enterprise at $9.8 million.

The Superior Court dismissed the appeal, finding no palpable and overriding error in the Claims Officer's factual determination that Thorneloe was an unprofitable entity and his subsequent rejection of the expert's revenue multiplier methodology.

The court affirmed that expectation damages (lost profits) is the customary remedy for breach of contract, and a non-breaching party is not entitled to be put in a better position than if the contract had been performed.

In the context of Laurentian University's CCAA proceedings, a former student (BR) and the University of Sudbury sought to lift the stay of proceedings to pursue civil litigation regarding historical sexual assault allegations.

BR argued that her claim was exempt from the CCAA claims process under s. 19(2)(b)(i), which exempts awards of damages for sexual assault.

The court dismissed the motions, applying the Supreme Court's reasoning in Montreal (City) v. Deloitte Restructuring Inc. to hold that the s. 19(2) exception must be interpreted narrowly and only applies once an award of damages has actually been established.

Consequently, the claims must be determined within the CCAA Claims Process.

The applicant university brought a motion within its CCAA proceedings for an order extending the stay period and an order approving the refinancing of its debtor-in-possession (DIP) facility with the provincial government.

The court found that the applicant had acted in good faith and with due diligence, and that the cash flow forecast demonstrated sufficient liquidity to operate during the extended stay period.

The court granted the requested orders, noting the significant interest rate reduction under the replacement DIP facility.

In the CCAA proceedings of Laurentian University, the applicant sought an order regarding a Compensation Claims Process.

On consent, the court deferred relief related to Third Party RHBP Claims to a subsequent hearing, ordering that the deadlines and procedures in the Compensation Claims Process Order would not apply to those claims at this time.

The remaining unopposed relief was granted.

The applicant, Laurentian University, brought a motion within its CCAA proceedings to extend the stay of proceedings, approve an amendment to its DIP facility increasing the available funds by $10 million, and approve settlement agreements with its faculty association, staff union, and Huntington University.

The court found that the applicant had acted in good faith and with due diligence, making significant progress in its restructuring.

Despite opposition from Thorneloe University and the University of Sudbury regarding the DIP amendment, the court approved the requested relief, finding the DIP conditions reasonable and the extension necessary for the applicant's continued operations and restructuring efforts.

The University of Sudbury brought a motion to set aside a Notice of Disclaimer issued by Laurentian University under section 32 of the CCAA.

Laurentian University sought to disclaim the Federation Agreements with its federated universities as part of its financial restructuring.

The moving party argued the disclaimer was issued in bad faith, would cause significant financial hardship, and would negatively impact French language rights.

The court dismissed the motion, finding no bad faith, insufficient evidence of significant financial hardship to outweigh the restructuring needs, and noting that the moving party had already resolved to become an independent francophone university.

The court concluded the disclaimer was necessary for Laurentian University to present a viable plan to its creditors and avoid bankruptcy.

Thorneloe University brought a motion under section 32(2) of the CCAA to prohibit Laurentian University from disclaiming their Federation Agreement and Financial Distribution Notice.

Laurentian argued the disclaimer was necessary to achieve financial sustainability and present a viable restructuring plan, saving approximately $7.7 million annually.

Thorneloe argued the disclaimer would cause it significant financial hardship and force it into insolvency.

The court balanced the competing interests, giving significant weight to the Monitor's recommendation, and concluded that upholding the disclaimer was the least undesirable choice to prevent the potential collapse of Laurentian University.

The motion was dismissed.

The applicant, Laurentian University of Sudbury, brought a motion within its CCAA proceedings for an order extending the stay period, approving term sheets with faculty and staff unions, approving a transition agreement with Huntington University, and approving an amendment to its DIP facility to increase the available principal amount by $10 million and the DIP Lender's Charge to $35 million.

The court granted the motion, with reasons to follow.

Thorneloe University brought a motion under section 32(2) of the CCAA seeking an order that its Federation Agreement and Financial Distribution Notice with Laurentian University not be disclaimed or resiliated, and to amend the DIP Amendment Agreement.

The court dismissed the motion, with reasons to follow.

Laurentian University sought orders under the CCAA to apply a 65.8% Transfer Ratio to commuted value pension transfers for 27 individuals and to confirm a stay on pre-filing Pension Benefits Guarantee Fund (PBGF) assessments.

The court granted the application to apply the Transfer Ratio, finding it necessary to preserve pension plan assets and ensure equitable treatment among beneficiaries, despite objections from some affected individuals who argued they relied on a 100% transfer ratio.

The court also confirmed the stay on PBGF assessments, characterizing them as pre-filing obligations based on when the amount was determined.

This supplementary endorsement addresses a challenge to a sealing order granted in the Companies’ Creditors Arrangement Act (CCAA) proceedings of Laurentian University of Sudbury.

The sealing order covered confidential correspondence between the University and the Ministry of Colleges and Universities, which Laurentian University argued contained sensitive information that, if disclosed, could jeopardize its restructuring efforts.

Parties opposing the sealing order contended there was no evidentiary basis for it.

Applying the two-branch test from Sierra Club of Canada v. Canada (Minister of Finance), the court found that the disclosure posed a real and substantial risk to the University's future viability, that the "commercial" interest extended to the broader community, and that no reasonable alternatives existed given ongoing mediation.

Consequently, the court maintained the confidentiality of the exhibits and the existing sealing order.

Laurentian University (LU) sought an Amended and Restated Initial Order under the Companies' Creditors Arrangement Act (CCAA) to facilitate its restructuring.

The requested relief included an extension of the stay of proceedings until April 30, 2021, approval of a $25 million Debtor-in-Possession (DIP) facility, an increase in the Administration Charge to $1.25 million, and an increase in the Directors' Charge to $5 million.

LU also sought a stay of pre-filing and post-filing special payments to its defined benefit pension plan and a stay of requests under the Freedom of Information and Protection of Privacy Act (FIPPA).

The court granted all requested relief, finding it necessary and reasonable for the continued operation and restructuring of the university.

The sealing order for certain confidential exhibits was maintained pending a supplementary endorsement.

Laurentian University of Sudbury applied for an Initial Order under the Companies' Creditors Arrangement Act (CCAA) due to a severe liquidity crisis and insolvency.

The court found that the university, a not-for-profit corporation, qualifies as a debtor company under the CCAA.

The court granted the Initial Order, which included a stay of proceedings, authorization for pre-filing and post-filing payments to students, an Administration Charge, and a Directors' Charge.

The court also granted a sealing order for confidential correspondence with the Ministry to protect the restructuring efforts.