Chad Kopach

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

The applicant, a commercial real estate financing company, sought a receivership order over the debtor and beneficial owners of properties due to loan default, outstanding interest, and unpaid municipal taxes.

The court considered factors for appointing a receiver, including the contractual right to appointment and the respondents' lack of transparency and uncertain sale prospects.

The application was granted, and a receiver was appointed.

The moving parties filed a supplementary motion record and revised draft order following a previous endorsement that noted deficiencies in their materials.

The court found the new materials remained deficient, citing incomplete documents, missing schedules, duplicate email authorizations, and spelling errors.

The court declined to grant the requested relief but provided the moving parties one final opportunity to file a proper and complete consent and draft order.

The applicants brought a motion for consent orders to discharge construction liens and direct the return of security paid into court.

The court refused to grant the relief due to significant deficiencies in the motion materials and the proposed draft order.

These deficiencies included incorrect legal terminology (e.g., referring to discharge of a "Claim for Construction Lien" instead of a "lien"), failure to provide updated parcel registers to address sheltering liens, an improper preamble in the draft order, and an incorrect provision for the return of security that contravened Section 46(4) of the Construction Act.

The court emphasized the need for counsel to be meticulous in drafting and noted the waste of judicial resources caused by such carelessness.

The moving party brought a motion for leave to appeal an unreported order of Myers J. The Divisional Court dismissed the motion for leave to appeal and ordered the moving party to pay costs of $5,000 to the responding party.

Money Gate Corporation (MGC) brought a motion for an extension of time to file its notice of appeal and a declaration that it had an appeal as of right under s. 193(c) of the Bankruptcy and Insolvency Act (BIA), or alternatively for leave to appeal under s. 193(e).

The underlying matter involved a receivership where a motion judge had dismissed MGC's claim for payment from the proceeds of a property sale, finding no valid assignment of a second mortgage and that MGC was not the registered owner.

The Court of Appeal granted the extension of time, finding MGC's grounds of appeal not frivolous and no real prejudice to the responding parties.

Crucially, the court declared that MGC had an appeal as of right under s. 193(c) of the BIA, concluding that the motion judge's order finally determined MGC's economic interests in the property proceeds, distinguishing it from a mere priorities dispute.

The applicants sought a declaration that a 2001 easement and restrictive covenant registered on title to a former golf course prohibited the respondent from developing the lands for residential use.

The respondent argued the covenant only protected storm water management access and did not prevent development.

The court applied contract interpretation principles and found the plain language of the restrictive covenant, read in context, constituted a complete prohibition on building structures on the golf course lands.

By operation of the Land Titles Act, the covenant was deemed to expire 40 years after registration, prohibiting residential development until 2041.

The Court of Appeal for Ontario heard two appeals concerning a priority dispute over accelerated interest in closed mortgages and a costs order in a receivership.

The primary issue was whether the first mortgagee, First National Financial GP Corporation (FN), was entitled to future, unearned, accelerated interest upon the early discharge of its closed mortgages due to the mortgagors' default and court-ordered sale.

The court found that the trial judge erred by failing to conduct a full contractual analysis of the mortgage provisions and by relying on a standalone common law entitlement to accelerated interest.

The Court of Appeal held that the mortgage terms explicitly provided for FN's entitlements upon default, which did not include accelerated interest.

The appeal regarding accelerated interest was allowed.

The appeal concerning the receiver's costs was dismissed, as the trial judge's discretion was properly exercised.

Following a successful Application for Directions regarding an arbitration, the applicant sought costs of $11,743.35 on a partial indemnity basis.

The respondents argued for divided success and sought their own costs.

The court found the applicant was entirely successful on the substantive issues and that the respondents' actions had unnecessarily complicated and delayed the arbitration.

The court awarded costs to the applicant fixed at $9,000 payable forthwith.

This case conference order addresses procedural and factual disputes in an ongoing insolvency proceeding involving Eureka 93 Inc. and three related companies under the BIA.

The noteholders (Dominion Capital LLC) had postponed creditor votes on proposals, seeking further investigations and information regarding asset valuations and the validity of their claims.

The debtors challenged the noteholders' status as creditors for one proposal.

The court provided directions to resolve the gridlock, ordering the Proposal Trustee to assess and value the noteholders' proofs of claim, setting deadlines for examinations of witnesses, and mandating the completion of votes on the proposals.

The court emphasized the Trustee's role in validating claims and cautioned against allowing peripheral issues to unduly complicate the summary insolvency process.

The Receiver, supported by the Applicant (senior secured lender and stalking horse bidder), sought court approval for a Sale Procedure featuring a stalking horse agreement for the North Barrie Crossing Shopping Centre.

The Respondents opposed, raising concerns about the credit bid valuation, expense reimbursement, deposit requirements, minimum overbid, and the timing of the sale during the COVID-19 crisis.

The court applied the Soundair and CCM Master principles, largely approving the Receiver's plan with minor amendments, including requiring environmental and building condition reports and tenant estoppel certificates, and extending the sale timeline by two weeks to enhance the bidding process.

The receiver sought declaratory relief regarding an appeal of an approval and vesting order for the sale of a two-building apartment complex with 110 units, 30 of which were designated for affordable housing.

The receiver sought declarations that the appeal was governed by the Bankruptcy and Insolvency Act, that the appellants lacked an automatic right of appeal and must seek leave, and that any automatic stay under the BIA should be cancelled.

The appellants challenged the sale price, arguing it did not represent fair market value and pointing to late offers as evidence.

The court found the late offers were not credible and that no loss exceeding $10,000 had been demonstrated, thereby requiring leave to appeal.

The court also cancelled any stay to permit the transaction to close.

The defendants brought motions to set aside default judgments totaling over $315,000, which were granted after their Statements of Defence were struck for non-compliance with court orders and rules.

The court applied the five-factor test from *Mountain View Farms Ltd. v. McQueen* to determine if the interests of justice favored setting aside the judgments.

The court found that the defendants moved promptly, had an arguable defence, and would suffer significant prejudice if the judgments stood.

While the explanation for default was neutral, the court emphasized that striking a defence is a severe remedy and that the plaintiff could have made more effort to ensure the self-represented defendants were aware of their jeopardy.

The motions to set aside the default judgments and associated writs of seizure and sale were granted, with costs reserved.

The defendants brought motions to dismiss the plaintiff's action for delay.

The action, arising from a 2005 real estate purchase, was struck from the trial list in 2010.

The court found over six years of unexplained delay by the plaintiff and his counsel.

Applying the test for dismissal for delay, the court concluded the delay was intentional and contumelious, and alternatively, inordinate and inexcusable, resulting in a substantial risk that a fair trial would not be possible.

The action was dismissed.

The defendants (Hageys) brought a motion seeking to set aside or vary a previous summary judgment, introduce new evidence, and obtain a stay of a writ of possession and costs awards.

The court dismissed the motion, finding that the Hageys failed to satisfy the two-part test from `Scott v. Cook` for admitting new evidence and that the issues regarding a stay had been previously determined.

The court also noted that a request for an accounting related to a separate action was not properly brought in the current proceeding.

The previous order granting summary judgment remained in force.

The appellants appealed a trial judgment, limiting their argument to the submission that the trial judge erred in refusing their request for an adjournment.

The Court of Appeal found that the trial judge properly balanced the interests of the parties and the administration of justice, noting the appellants' history of changing counsel and prior warnings that a last-minute change would not entitle them to an adjournment.

The appeal was dismissed.

The plaintiff bank brought a motion for summary judgment seeking rectification of two mortgages registered against the defendants' abutting properties to comply with the Planning Act, as well as possession of the properties.

The defendants had defaulted on the loan and entered bankruptcy.

The court found that the parties had a common continuing intention to mortgage both properties as security for the loan, and that the failure to cross-reference the mortgages was a mistake.

The court granted rectification, deemed the notices of sale sufficient, and granted judgment for possession.

The plaintiff's motion to dismiss the defendants' counterclaim was dismissed without prejudice as the counterclaim remained stayed under Rule 11 due to the bankruptcy.

Following two trials in a commercial dispute, the successful party sought costs on a substantial indemnity basis.

The court held that allegations by the opposing party that a shareholders’ agreement was a fraudulent forgery were unsupported and justified elevated costs to the end of the first trial.

Costs thereafter were awarded on a partial indemnity basis because the second trial concerned only the quantum payable.

The court reviewed objections to time entries and disbursements and rejected most reductions, finding the work and rates generally reasonable.

A global adjustment was made to account for limited overlap between successive counsel.

Following earlier reasons ordering a buy‑out of a shareholder’s interests in two corporations for $640,000, the court addressed the appropriate start date for pre‑judgment interest.

The court reviewed the procedural history and determined that the buy‑out claim had not been pursued at the first trial and only crystallized when the court permitted the claim to proceed on April 11, 2013.

Accordingly, the cause of action for the buy‑out arose on that date.

Pre‑judgment interest was ordered to run from April 11, 2013 at the applicable quarterly rate.

Post‑judgment interest was set at 2% per annum.