Christopher William Besant

This decision addresses whether Cushman & Wakefield ULC (C&W), as real estate broker, is entitled to a commission in respect of Stelco’s purchase of the Stakeholders’ limited partnership units and other equity in the Legacy Lands LP, under the Companies’ Creditors Arrangement Act proceedings.

The court finds that C&W is not entitled to a commission, as the relevant brokerage agreements had expired or were never executed for the properties in question, and the transaction at issue was not contemplated by the commission provisions.

The court also dismisses C&W’s alternative claim for unjust enrichment.

The applicant, Castle Building Centres Group Ltd., sought bankruptcy orders against Steven D. Parkes and Jeff A. Parkes based on a $2.2 million judgment debt.

The respondents opposed, arguing no debt was owing due to waiver, guarantees being inapplicable to a subsidiary's debt, and valid counterclaims for rebates.

They also claimed the application was for an improper purpose and that Jeff Parkes was medically infirm.

The court found the judgment debt valid and binding, rejecting the respondents' attempts to re-litigate issues already decided by summary judgment, upheld on appeal, and denied leave to appeal by the Supreme Court of Canada.

The court also dismissed arguments of improper purpose and medical infirmity, concluding that the requirements for a bankruptcy order were met and there was no basis to exercise discretion to dismiss the application.

The appellants, The Rehill Company Limited and its owners, appealed a summary judgment that enforced their personal guarantees for corporate debt owed to Castle Building Centres Group Ltd. and dismissed their counterclaim.

The Court of Appeal dismissed the appellants' motion to introduce fresh evidence, finding a lack of due diligence and that the evidence would not have affected the outcome.

The court upheld the motion judge's findings that the debt was owed to the respondent, the rebate claim was not a genuine issue for trial, there was no breach of a subordination agreement, and the personal guarantees were continuing and enforceable.

The appeal was dismissed, and costs were awarded to the respondent.

The plaintiff brought a motion for summary judgment to enforce personal guarantees executed by the individual defendants for the corporate defendant's debt of over $2.3 million.

The corporate defendant was in receivership.

The individual defendants raised numerous defenses, including an alleged oral agreement to waive the guarantees, breach of a subordination agreement, and a counterclaim for unpaid rebates and damages for forcing the company into receivership.

The court rejected all defenses, finding no genuine issue requiring a trial, and granted summary judgment while dismissing the counterclaim.

The appellant appealed a Committee of Adjustment decision authorizing minor variances for the applicant's property.

The applicant brought a motion to dismiss the appeal.

At the motion hearing, the parties informed the Tribunal that they had reached a settlement and the appellant would discontinue the proceeding.

The Tribunal ordered the motion and the proceeding dismissed.

The applicants sought approval under the Companies’ Creditors Arrangement Act for a sale of substantially all of their assets following a court‑approved sales and investor solicitation process.

The court considered the statutory factors in s. 36 of the CCAA, including the fairness and reasonableness of the process, the role of the monitor, consultation with creditors, and the adequacy of the consideration.

A late competing bid was rejected to preserve the integrity of the court‑approved sales process.

The court also addressed priority issues involving a DIP lender, secured creditors, and potential claims to HST refunds under the Financial Administration Act.

The proposed transaction and distribution scheme were approved as fair and reasonable in the circumstances.

The applicants moved under the Companies' Creditors Arrangement Act for an extension of the stay of proceedings until June 6, 2012.

A successful bid had been selected following a sale and investor solicitation process, and the extension was required to finalize the purchase agreement and seek court approval.

The court found that the applicants had acted in good faith and with due diligence, and granted the extension as the applicants had sufficient interim financing to proceed.

The appellant challenged the legal effectiveness of a transfer of shares in a closely held corporation by a bankrupt shareholder's trustee in bankruptcy to another corporation.

The appellant argued the transfer did not comply with share transfer restrictions.

The Court of Appeal dismissed the appeal, finding that equitable title had passed for good consideration and that any defect in the original transfer was cured by a subsequent confirming transfer by the trustee.

Following the bankruptcy of Canada 3000, airport authorities sought to seize leased aircraft for unpaid charges.

The parties negotiated protocols allowing the release of the aircraft to the lessors in exchange for a Release Fund.

The Supreme Court of Canada later held that the authorities had a statutory right to detain the aircraft, which could be exercised against the substituted security.

The lessors appealed a motion judge's order allowing the authorities to draw on the Release Fund, arguing the preconditions of the protocols were not met.

The Court of Appeal dismissed the appeal, finding that the protocols were a voluntary commercial arrangement and the authorities' right to the fund was triggered by the judicial grant of the detention remedy.

Appeals and cross-appeals arising from the collapses of two airlines operating leased aircraft and leaving substantial unpaid airport and civil air navigation charges.

The Court held that legal titleholders were not personally liable for unpaid navigation charges under s. 55 of the Civil Air Navigation Services Commercialization Act because 'owner' was limited to persons with legal custody, control, or possession in the statutory context.

However, the seizure and detention remedies under s. 56 of that Act and s. 9 of the Airport Transfer (Miscellaneous Matters) Act operated against aircraft owned or operated by the defaulting airlines and could not be defeated by leasing arrangements or by separating attached engines.

The remedies extended to security posted in substitution for the aircraft, subject to the motions judges’ supervisory discretion to craft fair terms.

Interest continued to run until payment, posting of security, or bankruptcy.

The respondents, having been largely successful on the main appeals concerning the interpretation of seizure and detention remedies under the Airport Transfer (Miscellaneous Matters) Act and the Civil Air Navigation Services Commercialization Act, sought costs totaling over $631,000.

The court declined to award costs to any party.

The court reasoned that the proceedings raised novel issues of statutory interpretation that engaged the public interest, the respondents were not completely successful as their cross-appeals were dismissed, and the appellant airport authorities acted reasonably in bringing the appeals given the lack of established jurisprudential authority.

In the context of Air Canada's CCAA restructuring, the appellant sought leave to appeal an order approving an equity investment agreement with Trinity Time Investments Limited and denying an adjournment to consider a competing proposal.

The Court of Appeal dismissed the motion for leave, finding no error in the supervising judge's decision to approve the agreement, which contained a 'fiduciary out' clause allowing the board to consider superior proposals.

The court held that the test for leave to appeal in CCAA proceedings—requiring serious and arguable grounds of real and significant interest—was not met.

The appellants, various book publishers, appealed a decision determining that they did not have priority over the Bank of Nova Scotia regarding accounts receivable collected by the distributor, General Distribution Services Inc. (GDS).

The publishers argued that because they retained title to the books, they had priority.

The Court of Appeal dismissed the appeal, finding that the arrangement between the publishers and GDS did not require the segregation of funds, allowing GDS to mingle the proceeds with its own money.

Consequently, the relationship was one of debtor and creditor, not trustee and beneficiary, and the publishers did not hold a priority interest.