Christopher George Armstrong

The court-appointed Monitor in CCAA proceedings brought a motion to approve a CSA Plan disclaiming 314 of 329 existing condominium sale agreements for an 85-storey tower at 1 Bloor Street West, Toronto, to approve a Deposit Return Protocol for refunding approximately $105 million in insured deposits, and to approve a reconfiguration reducing total residential units to 411.

The Monitor demonstrated that disclaimers would generate incremental proceeds exceeding $200 million by enabling resale at higher market prices under a luxury hotel brand.

The court applied the established three-part test for disclaiming pre-construction sale agreements under s. 32 of the CCAA, finding that the senior secured lenders held first-ranking priority, that failure to disclaim would amount to a preference for purchasers, and that the equities did not support maintaining the existing agreements.

The motion was granted, the Deposit Return Protocol and Monitor's reports were approved, and a sealing order was granted over confidential market analysis appendices.

The decision grants an initial order under the Companies’ Creditors Arrangement Act (CCAA) to Joriki Topco Inc. and Joriki Inc., converting their ongoing NOI proceeding under the Bankruptcy and Insolvency Act to a CCAA proceeding.

The court approves the appointment of Alvarez & Marsal as Monitor, a stay of proceedings, a key employee retention plan, DIP financing, and various charges over the applicants’ assets.

The order is supported by the secured lenders and the proposed monitor, and is unopposed.

The court finds the statutory and case law requirements for CCAA relief are met, including the need for continued restructuring efforts and the appropriateness of the proposed charges and stay extension.

CS Capital Limited, a secured creditor and mortgagee, brought a motion seeking a declaration that its mortgage had priority over construction lien claims on a property.

The court dismissed the motion, finding that the mortgage was not registered prior to the time the first lien arose in respect of the overall improvement project.

Furthermore, the court determined that the mortgage was a collateral mortgage securing a guarantee of a separate debt, and therefore no "advance" was made in respect of it for the purposes of priority under the Construction Act.

The Receiver sought and obtained two orders: a Construction Continuance Order to approve the engagement of a new construction manager (SKYGRiD) and extend a stay of proceedings, and a Lien Regularization Order to establish a court-supervised process for construction lien claims.

The court found jurisdiction under the Bankruptcy and Insolvency Act and the Courts of Justice Act, concluding that the orders were necessary and appropriate to ensure the ongoing construction of "The One" project and to manage lien claims efficiently without prejudicing claimants' substantive rights.

Objections from the former developer (Mizrahi Parties) regarding their own pending motion for fees were acknowledged but did not prevent the approval of the Receiver's requested orders.

The applicants, senior secured lenders, sought the appointment of a receiver over the assets of "The One" mixed-use construction project due to financial and covenant defaults by the borrower.

The project, significantly delayed and over budget, had outstanding debt of approximately $1.235 billion.

The appointment of Alvarez & Marsal Canada Inc. as receiver was unopposed by any key stakeholder.

The court granted the application, appointed the receiver, approved a super-priority receivership funding credit agreement of up to $315 million, and issued a stay of proceedings, finding it just and convenient to stabilize the situation and maximize recovery for all stakeholders.

The court-appointed Receiver brought multiple motions seeking various forms of relief, including a declaration of vacant possession and writ of possession for a condominium unit (PH 07), approval and vesting orders (AVOs) for the sale of two specific condominium units (PH 02 and PH 03), prospective AVOs for five remaining units subject to sale conditions, approval of certain distributions from sale proceeds, approval of the Receiver's activities, and a sealing order for confidential appendices.

The applicant, KingSett Mortgage Corporation, and CIBC supported the relief.

The respondent, 30 Roe Investments Corp., represented by its president and personal guarantor, Raymond Zar, opposed some aspects, particularly the pre-approval of sales for remaining units without the debtor's consent and the immediate payment of HST.

The court granted most of the Receiver's requests, finding no lawful right for the occupant of PH 07, approving the sales under specific conditions, and approving distributions, with a temporary deferral on the HST payment issue to allow the respondent to provide supporting documentation.

Crystallex International Corporation and Tenor Special Situation I, LP sought leave to appeal a motion judge's order that partially dismissed Crystallex's request to seal certain financial information in the Monitor's Thirty-Third Report.

The motion judge had applied the Sierra Club test and found the evidence for sealing speculative.

The Court of Appeal refused leave, finding the proposed appeal was not prima facie meritorious and the case was not of significance to the practice, upholding the motion judge's discretionary order.

Crystallex International Corporation brought a motion for a sealing order to keep confidential certain financial information and strategic details contained in the Monitor's 33rd Report, including cash balance, litigation expenses, sanctions impact, and confidential mediation disputes.

The Ad Hoc Committee of senior noteholders and the Trustee opposed the sealing of financial information, arguing for the importance of disclosure in CCAA proceedings.

The court applied the Sierra Club test, which requires demonstrating a real and substantial risk to an important commercial interest, no reasonable alternative to sealing, and the salutary effects outweighing the deleterious effects on the open-court principle.

The court found Crystallex's evidence, consisting of bald and speculative statements, insufficient to meet this high evidentiary burden, and therefore dismissed the motion for a sealing order.

The Monitor of the Canadian Debtors of Nortel Networks sought court approval for two environmental property settlement agreements concerning the Belleville and Brockville properties under the Companies’ Creditors Arrangement Act (CCAA).

These settlements aimed to resolve significant environmental liabilities, crystallize claims, and facilitate further distributions to creditors.

The court granted the motion, approving both the MECP Belleville Settlement and the Brockville Settlement, finding them fair, reasonable, beneficial to stakeholders, and consistent with the CCAA's objectives, including the provision of third-party releases.

The appeal addressed whether a trustee under a labour and material payment bond must disclose the bond’s existence to potential beneficiaries.

A majority held that where non-disclosure would unreasonably disadvantage a beneficiary, fiduciary duties require reasonable notice steps.

Because the contractor did nothing to alert subcontractors in circumstances where such bonds were uncommon, it breached trust obligations, and the case was remitted for damages quantification.

One hundred and fifteen former Nortel employees brought a motion seeking to impose personal liability on the former directors of Nortel Networks Limited (NNL) and Nortel Networks Corporation (NNC) for unpaid severance payments under section 119 of the Canada Business Corporations Act (CBCA).

The employees argued that the severance payments were akin to retention payments for services performed.

The directors raised defenses including that severance payments are not covered by section 119, they exercised due diligence, and some claimants were employed by a different subsidiary (NNTC).

The court dismissed the motion, finding that severance payments are not for 'services performed' under CBCA s. 119, but rather compensation for loss of employment.

The court also found that the directors had a valid due diligence defense and that the 'true employer' test would have identified NNL as the employer for all employees, despite payroll being handled by NNTC.

The court also noted that releases signed by some employees would have covered the claim.