Aubrey E. Kauffman

The Administrative Agent for the Syndicate Lenders moved for an order tolling limitation periods relating to claims against the debtor entities, additional stay parties, and related individuals and trusts that may expire during the stay period or within 60 days following its termination.

The motion was unopposed and supported by the Monitor and the Trustee in Bankruptcy.

The court granted the tolling order, finding jurisdiction under section 11 of the CCAA and that the relief advanced the policy and remedial objectives of the Act.

The court acknowledged the respondents' reservation of rights to seek variation or termination of the tolling provisions in the future.

In the context of ongoing CCAA proceedings, the applicants and various equipment financiers reached an impasse regarding the wind-down plan and a proposed going-concern sale of the logistics business.

The applicants sought a monetization order, an increase in the administration charge, and lien regularization, which were unopposed and granted by the court to maintain operations.

Due to significant disputes over the sale and liquidation of assets, the court adjourned the contested motions, including several lift-stay motions brought by creditors, and ordered the parties to attend mandatory mediation before a former Commercial List judge.

The applicant, CURO Group Holdings Corp., as Foreign Representative, sought a Third Recognition Order under section 49 of the Companies’ Creditors Arrangement Act (CCAA) to recognize and enforce several orders of the U.S. Bankruptcy Court.

These orders included the Combined Order approving the Debtors’ Joint Prepackaged Plan, the Estimation Order, and the Second Interim Cash Management Order.

The motion also sought termination of the Canadian Recognition Proceedings, discharge and release of the Information Officer, and approval of the Information Officer's reports and fees.

The relief sought was unopposed, and the court granted the Third Recognition Order, finding no public policy reason to deny recognition.

The Applicants, Nordstrom Canada Retail, Inc. and related entities, sought an Amended and Restated Initial Order (AIRO) under the Companies’ Creditors Arrangement Act (CCAA).

The motion, unopposed and supported by the Monitor, requested an extension of the stay period, approval of a Key Employee Retention Plan (KERP) and its associated charge, and increases to the Administration and Directors' Charges.

The court granted the AIRO, finding the stay extension appropriate given the applicants' good faith and diligence in pursuing an orderly wind-down, the KERP reasonable and necessary for restructuring, and the charge increases modest and well-supported.

The applicants, Nordstrom Canada Retail, Inc., Nordstrom Canada Holdings Inc., LLC, and Nordstrom Canada Holdings II, LLC, sought an initial order under the Companies’ Creditors Arrangement Act (CCAA) for a stay of proceedings to facilitate an orderly wind-down of their Canadian operations.

Nordstrom Canada, a subsidiary of Nordstrom US, had incurred significant losses and Nordstrom US had ceased financial support.

The court granted the requested relief, including a 10-day stay of proceedings, extension of the stay to Nordstrom Canada Leasing LP and, for limited purposes, to Nordstrom US (Parent Stay), approval of an Employee Trust funded by Nordstrom US, appointment of Employee Representative Counsel, and authorization for certain pre-filing payments to critical suppliers.

The court also approved Administration and Directors' and Officers' charges.

In the context of CCAA proceedings for Carillion Canada Holdings Inc. and related entities, the affected parties reached an agreement on a Directors and Officers (D&O) Claims Process Order.

The Monitor supported the order to finally resolve D&O claims and complete the administration of the proceedings.

The court found the proposed order reasonable and granted the requested relief, noting that the D&O Insurers' participation does not constitute an admission of coverage or liability.

Voyager Digital Ltd. applied under Part IV of the CCAA for an Initial Recognition Order of its Chapter 11 proceedings in the United States.

The central issue was whether the US proceeding should be recognized as a 'foreign main proceeding' or a 'foreign non-main proceeding', which depended on determining the company's Centre of Main Interests (COMI).

Despite being incorporated in British Columbia and listed on the TSX, the court found that the company's COMI was in the US, where its operations, management, and principal assets were located.

The court recognized the US proceeding as a foreign main proceeding and granted the requested stay.

The respondent sought costs of $85,885.03 on a partial indemnity basis following the applicant's unsuccessful application for leave to appeal an arbitral award.

The applicant argued costs should be capped at $40,000.

The court considered the factors under Rule 57.01, noting the issues were of moderate complexity and the parties' costs outlines were similar.

After making a slight reduction for duplication of work and excessive time spent by lead counsel, the court awarded the respondent costs of $79,000 all-inclusive.

The applicant sought leave to appeal an arbitral award concerning the interpretation of "Appraised Value" in a long-term commercial ground lease.

The dispute centered on whether the appraised value should be based on a mixed-use residential/commercial development or a mixed-use office/commercial shopping centre, considering zoning bylaws and current use.

The arbitrator had ruled in favor of the respondent.

The applicant alleged three extricable errors of law: failure to consider binding legal authority (official plan vs. zoning bylaw), failure to apply principles of contractual interpretation, and error in excluding expert reports.

The court found that the Ground Lease, which stipulated awards were "final and binding" governed the arbitration, not a separate arbitration agreement.

It further determined that the alleged errors were questions of mixed fact and law, not extricable errors of law, and that the expert reports were properly excluded as they did not assist in contractual interpretation.

Consequently, the application for leave to appeal was dismissed.

On appeal from a motion judge's decision, the Court of Appeal considered whether real estate sales commissions collected by a receiver of an insolvent brokerage firm constitute trust funds for the real estate salespersons who effected the sales, or form part of the assets available to creditors.

The motion judge found no trust existed, concluding that certainty of intention to create a trust had not been established.

The appellants (agents and their insurer) challenged this conclusion on two bases: that the motion judge erred in attaching significance to evidence weighing against a trust, and that he failed to attach sufficient significance to evidence supporting a trust.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in his weighing of evidence.

The court affirmed that formal trust agreements are not required for an implied trust to arise, but the absence of such provisions in the agent agreements, combined with financial statements showing commissions as assets rather than trust funds, supported the conclusion that no trust was intended.

The Receiver of two insolvent real estate brokerages (TRP and TRP Realty) sought the court's advice and direction on whether approximately $3.7 million in commissions owed to the brokerages' agents were held in trust for the agents or formed part of the general assets available to secured creditors.

The court applied the "three certainties" test for a valid trust, focusing on certainty of intention.

Despite some ambiguous indicators like bank account names and standard form documents, the court found that the agents' contracts and the brokerages' audited financial statements did not objectively demonstrate an intention to create a trust.

Consequently, the commissions were deemed unsecured debts, not trust funds, and thus available to the secured creditors.

The Monitor sought court advice and directions regarding a proposed extension of an Asset Purchase Agreement (APA) closing date and alleged material breaches of confidentiality obligations by the purchaser, Lagasco Inc., in a Companies' Creditors Arrangement Act (CCAA) proceeding.

The court authorized the Monitor to agree to a final three-week extension of the APA, noting the purchaser's good faith in dealing with unexpected financing issues, but expressed serious concerns about the confidentiality breaches.

The court directed the Monitor to ensure the extension was without prejudice to rights arising from these breaches and to prepare for a potential resumption of the sales process if the APA failed to close.

The applicant, Dundee Oil & Gas Limited, sought approval for the sale of substantially all its assets and the assignment of associated executory contracts under s. 11.3 of the CCAA.

The court initially adjourned the matter to require further evidence regarding the purchaser's financial stability and ability to manage environmental remediation obligations.

After reviewing supplementary evidence, including cash flow forecasts and the purchaser's operational plans, the court was satisfied that the purchaser would be able to perform the obligations.

The court approved the transaction and the assignment of the contracts.

The moving party, Arden Holdings Inc., acquired the bankrupt's commercial lease pursuant to an assignment order under s. 84.1 of the Bankruptcy and Insolvency Act.

The lease contained a co-tenancy provision granting a rent reduction that was expressly stated to apply only so long as the bankrupt was the tenant.

The landlord argued this provision was personal and non-assignable.

The court held that under s. 84.1, the assignee steps into the shoes of the bankrupt and acquires all rights and obligations.

The court found the rent reduction was not personal by its nature, and the landlord's objection was out of time as it should have been raised prior to the assignment order being granted.

This application sought the appointment of a receiver over the surface rights of the Kerr-Addison Mine, which had been inactive for 20 years.

The applicant, Gold Candle Ltd., had acquired the mining rights and aimed to recommence operations.

The respondents opposed, alleging the applicant was frustrating negotiations.

The court, exercising its discretion under s. 101 of the Courts of Justice Act, balanced the parties' rights and considered the significant public interest factors, including health and safety hazards, severe local economic impact, unpaid municipal taxes, and unaddressed creditor claims.

Finding it just and convenient, the court granted the application, appointing A. Farber & Partners Inc. as receiver to conduct a court-supervised sale of the Mine, anticipating remediation, economic revitalization, and debt repayment.

The applicants, a group of real estate development companies, sought an Initial Order under the CCAA and the continuation of their NOI proceedings under the CCAA.

Concurrently, the foreign representative of the parent company sought recognition of Israeli insolvency proceedings as a foreign main proceeding under Part IV of the CCAA.

The court approved a Co-operation Protocol between the foreign representative and the proposed Monitor, recognized the Israeli proceeding as a foreign main proceeding, and granted the Initial Order.

The court also extended the stay of proceedings to related limited partnerships and approved various administrative and interim financing charges.

The appellants, whose assets were managed by a court-appointed receiver, were reassessed by the CRA for unpaid taxes arising from shareholder loans.

They sought to sue the receiver for gross negligence in failing to engage in tax planning.

The accounting firm also sought leave to crossclaim against the receiver.

The Court of Appeal upheld the motions judge's decision dismissing the actions, finding that leave was required to sue the receiver and that the appellants failed to establish a prima facie case of gross negligence or wilful misconduct.

Schonfeld Inc., acting as a court-appointed Monitor and Receiver, sought to dismiss an action commenced against it by the monitored parties for alleged failure to engage in tax planning.

The monitored parties commenced the action without obtaining leave of the court and subsequently brought a motion for leave nunc pro tunc.

The court held that leave was required under the terms of the Monitor and Receiver Orders.

The court refused to grant leave nunc pro tunc, finding that the proposed claim lacked foundation because the Receiver's mandate did not include tax planning, and the pleadings failed to establish gross negligence or wilful misconduct as required to overcome the Receiver's discharge and release.

The action and a related crossclaim were dismissed.

In a receivership arising from CCAA proceedings, the moving party sought payment of post-filing collections on several assigned loans and the return of funds advanced for a failed loan transaction.

The court held the assigned loans had been absolutely and equitably assigned, and that the debtor acted only as collection agent.

Applying the constructive trust framework in Soulos, the court found the stay should preserve rather than reorder pre-filing proprietary rights, and that the post-CCAA collections could not be treated as estate property for general creditors.

The court also held the failed transaction advance was held for a specific purpose and remained subject to a trust obligation, with Quistclose trust principles supporting that result in the alternative.

The motion was granted, subject to a holdback for any amount owed by the moving party to a related entity.

Honeywell brought a motion in Comstock's CCAA proceedings seeking an order directing Comstock to disclaim a subcontract or, alternatively, lifting the stay of proceedings to allow Honeywell to terminate the subcontract.

Comstock had ceased performance on the construction project and stopped paying Honeywell.

The court held it could not force a disclaimer under section 32 of the CCAA without the Monitor's approval.

However, because Comstock was no longer actively involved in the project and it would not form part of the restructuring, the court lifted the stay of proceedings to allow Honeywell to pursue its options.