Bryan D. McLeese

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

This endorsement concerns three tobacco companies (JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc.) operating under the Companies’ Creditors Arrangement Act (CCAA).

Each applicant sought an extension of their stay period until September 30, 2024, to continue formulating plans of arrangement.

Imperial also requested authorization to terminate a retirement plan and post security for a vaping product license.

RBH sought a procedural amendment for employee grievances.

The court, finding no opposition and satisfied with the applicants' good faith, diligence, and sufficient resources, granted all requested relief, noting significant progress in ongoing mediation.

The moving parties brought motions for leave to appeal an order of the Superior Court of Justice.

The Divisional Court dismissed the motions for leave to appeal without costs.

This endorsement concerns the Companies' Creditors Arrangement Act (CCAA) proceedings for JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted an unopposed motion to extend the stay period until March 29, 2024.

Recognizing the complexity and the four-and-a-half-year duration of negotiations, the court directed the three court-appointed Monitors, in conjunction with the court-appointed Mediator, to collaborate and develop comprehensive Plans of Compromise or Arrangement.

The objective is to finalize plans that are fair and reasonable to all applicants and creditors, moving from observable activity to meaningful action.

The Court of Appeal heard motions to quash an appeal from a trial judge's order approving a sale process for a family business.

The court found the approval order to be interlocutory, serving as a mechanism to implement remedies from the trial judgment, and thus not determining substantive issues.

The correct appeal route for such an order is to the Divisional Court with leave.

Consequently, the motions to quash the appeal were allowed, and the appellants were granted an extension to seek leave to appeal to the Divisional Court.

The Tribunal convened a Case Management Conference regarding an appeal of a Zoning By-law Amendment passed by the Town of Bracebridge.

The amendment would permit the conversion of a hunt camp to a seasonal dwelling.

The Tribunal scheduled a two-day video hearing and directed the parties to submit a draft Procedural Order and Issues List.

The Monitor brought an unopposed motion for an order extending the Stay Period under the Companies' Creditors Arrangement Act to November 18, 2023.

The court found that the parties were working in good faith and with due diligence, and that the applicants had sufficient liquidity.

To ensure supervision over ongoing litigation regarding documentary production, the court granted the stay extension to April 3, 2023, rather than the requested date.

The defendants brought a motion for an order requiring the corporate plaintiff to post security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiff conceded the defendants met their initial onus but argued it had sufficient assets in Ontario to pay costs.

The court found the plaintiff's evidence of recent profits insufficient to prove it had exigible assets, noting its history of deficits and lack of hard assets.

The court granted the motion and ordered the plaintiff to post $50,000 in security for costs.

The defendants moved for security for costs, substitute security, set-off of interlocutory costs, and withdrawal of writs of execution pending an assessment of damages for deceit.

The plaintiffs brought cross-motions including a request to add a vesting order issue to the assessment.

The court dismissed all motions, primarily citing the defendants' significant delay in bringing their motions and the potential prejudice to the plaintiffs, who had been exploiting the intellectual property collateral for years.

The court also found that considering a vesting order was beyond the scope of the assessment ordered by the Court of Appeal.

The four Libfeld brothers, equal owners of The Conservatory Group (a multi-billion dollar real estate development business), experienced a complete and irreparable breakdown of their personal and professional relationships.

The applicants sought various remedies including a restructuring protocol or a restricted wind-up, while the respondents sought a buy-sell process or a structured buyout.

The court found no actionable oppression by any party, attributing the disputes to extreme mutual dysfunction.

Concluding that the brothers could no longer work together and that none of their proposed remedies were workable or fair, the court ordered a court-supervised wind-up and sale of the business under the OBCA and Partnerships Act, permitting all brothers to participate as bidders.

The defendants abandoned their motion for summary judgment after the plaintiff successfully moved to extensively amend the statement of claim.

Both parties sought costs of the abandoned motion.

The court found that the plaintiff's late and extensive amendments, which prompted the defendants to reconsider and abandon their motion, constituted exceptional circumstances justifying a departure from the presumptive rule that a responding party is entitled to costs of an abandoned motion.

The court awarded costs of the abandoned motion to the defendants in the amount of $33,540.66.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

The defendants, KPMG, Canaccord Genuity Corp., and Cassels Brock & Blackwell LLP, brought motions for summary judgment to dismiss actions initiated by 1511419 Ontario Inc. (formerly The Cash Store Financial Services Inc.) on the grounds that the claims were statute-barred by the two-year limitation period.

The actions related to professional services provided concerning a January 2012 loan purchase and note offering.

The court dismissed the motions, finding that there were genuine issues requiring a trial regarding the discoverability of the claims, given the complex factual pattern, allegations of professional negligence, and the limited evidentiary record presented.

The plaintiff, Amos Tayts, brought a motion for leave to amend his amended statement of claim.

The defendants opposed specific proposed amendments, categorizing them into claims for breach of 'Zavet Group Terms' and breach of trust after the limitation period, pleadings of evidence, and withdrawal of an admission.

The court granted leave for all proposed amendments, finding that they did not introduce new causes of action after the limitation period, were sufficient for pleading purposes, and constituted necessary particulars rather than mere evidence.

The court reserved the issue of costs thrown away to the trial judge or summary judgment judge, but fixed the costs of the motion at $10,000.00 payable by the defendants to the plaintiff.

The plaintiffs brought a motion for directions regarding the assessment of damages following an appeal.

The Court of Appeal had remitted the case for assessment of damages for deceit/fraudulent misrepresentation, setting a base amount and requiring deduction of profits from collateral exploitation.

The moving parties argued for a broader basis of damages (contractual) and a higher initial amount, which the court rejected, affirming the Court of Appeal's specific instructions.

The court provided directions on further examinations for discovery, restricting the examination of one defendant and limiting the plaintiffs' examination, and on the admissibility of evidence regarding profits.