Derek Joseph Harland

The Receiver brought a motion under the Bankruptcy and Insolvency Act to recover payments made by the insolvent debtor company to various parties, primarily family members and a former employee, in the year prior to bankruptcy.

The court found that the company was insolvent during the relevant period.

Payments to several family members and a non-arm's length salesperson were ordered to be repaid as they were found to be either transfers at undervalue or preferential payments.

Claims against a landlord, an independent contractor, and a long-time manager were dismissed as the transactions were either supported by consideration or were arm's length.

The foreign representative of a Chapter 11 debtor group brought a motion for recognition in Canada of a US Bankruptcy Court confirmation order approving a reorganization plan.

The motion was unopposed.

A group of co-defendants in Canadian opioid litigation sought a bar order (Pierringer-type protection) as a term of the recognition order, which was opposed by a provincial government.

The court granted the recognition order, finding no public policy grounds under s. 61(2) of the CCAA to refuse recognition and that the new plan's consensual-only third-party releases were consistent with Canadian insolvency law.

The court declined to impose the bar order, distinguishing the applicable authorities and holding that the co-defendants' position arose from the plan's releases — not from a prior government stipulation — and that the co-defendants had already received bar order protection in a separate settlement.

This decision concerns an appeal under section 45(2) of the Arbitration Act, 1991, from an arbitral award regarding four disputes arising out of a major public-private partnership infrastructure project (Highway 427 expansion).

The appellant, His Majesty the King in Right of Ontario (as represented by the Minister of Transportation and Ontario Infrastructure and Lands Corporation), challenged the arbitral tribunal’s interpretation of the Project Agreement on four issues: the Crossfall Dispute, the Zenway Boulevard Dispute, the 407 ETR Dispute, and the 2014-2016 Dispute.

The court held that the tribunal correctly identified and applied the principles of contractual interpretation, found no extricable errors of law, and dismissed the appeal.

This decision concerns motions brought by Pride Group Holdings Inc. and related applicants under the Companies' Creditors Arrangement Act (CCAA) for interim relief in their restructuring proceedings.

The court addresses requests for approval of interim distributions, payment of direct costs, application of deferred payments for working capital, and approval of certain activities of the Monitor.

The court grants the requested relief, finding it necessary to maintain liquidity and continue the wind-down process, and holds that the proposed mechanisms are equitable and consistent with the CCAA’s remedial objectives.

The People's Trust Company, as assignee of Enlightened Funding Corporation, brought a motion seeking an order to compel Deloitte Restructuring Inc., the court-appointed Receiver of Velocity Asset and Credit Corporation and 926749 Ontario Ltd., to produce documents relevant to the personal bankruptcy application against Hugh Waddell, the principal of the Respondents.

Despite Waddell's non-cooperation and previous adjournments, the court dismissed the motion.

The court found that the Receiver's appointment order, specifically section 4(m) concerning information sharing, was not broad enough to authorize production for purposes outside the receivership's primary objectives.

The court emphasized that the documents were sought to prosecute the bankruptcy application against Waddell, not to advance the receivership of the Respondents.

The court noted that other avenues exist within the Bankruptcy Application to compel such production.

The moving party, AutoLoans, sought a declaration of ownership over four vehicles, asserting a purchase agreement with Clonsilla Auto Sales and Leasing.

The court-appointed Receiver, Deloitte Restructuring Inc., opposed, arguing the transaction was a financing arrangement and, alternatively, a preferential transfer under the Bankruptcy and Insolvency Act.

The court found that the executed Fixed Rate Installment Notes (FRINs) constituted a binding financing transaction that was not legally displaced by subsequent backdated purchase documents.

Consequently, the vehicles remained property of the debtors, and AutoLoans' motion was dismissed.

In a Companies’ Creditors Arrangement Act (CCAA) proceeding, the applicants sought an Amended and Restated Initial Order (ARIO) to extend a stay of proceedings, approve debtor-in-possession (DIP) financing, and increase court-ordered priority charges.

A central issue was whether Ernst & Young Inc. (E&Y) should continue as Monitor, given that an affiliate had acted as the applicants' auditor within the two-year restricted period under CCAA s. 11.7(2).

The court granted the stay extension, approved the DIP financing, and increased the charges, finding these necessary for the restructuring.

However, the court denied E&Y's continuation as Monitor, emphasizing a stricter interpretation of CCAA s. 11.7(2).

The court found no "extenuating or unique circumstances" to override the general rule against appointing a former auditor within the restricted period, despite arguments of cost-effectiveness and existing knowledge.

FTI Consulting Canada Inc. was appointed as the new Monitor.

Laurentian University brought a motion within its CCAA proceedings for a vesting order to transfer a portion of its property to neighbouring landowners.

The transfer was part of a settlement agreement to resolve a pre-existing encroachment dispute, with the neighbours agreeing to pay $20,000.

The court found it had jurisdiction to grant the vesting order under section 100 of the Courts of Justice Act, read in conjunction with the Conveyancing and Law of Property Act and the CCAA.

The court also confirmed that a vesting order does not constitute a conveyance that engages the subdivision control provisions of the Planning Act.

As the motion was unopposed and resolved outstanding litigation, the vesting order was granted.

The Court-appointed Monitor in the CCAA proceedings of Laurentian University brought an unopposed motion for approval of its reports, activities, and professional fees.

The Court applied the factors from Confectionately Yours and found the requested fees for the Monitor, EY FAAS, and the Monitor's counsel to be fair and reasonable, given the novel and complex nature of the proceedings.

The Court approved the fees, disbursements, and the Monitor's reports.

In the context of Laurentian University's CCAA proceedings, the moving party brought a motion seeking an order to direct the Monitor to engage in mediation regarding its appeal of a Claims Officer's decision.

The Claims Officer had upheld the Monitor's disallowance of the moving party's $9.8 million claim for loss of commercial value.

The court dismissed the motion, finding that the existing claims process provided an adequate mechanism for resolving the dispute through the pending appeal.

The court also noted that the request for mediation was made too late, as it was brought only after the Claims Officer had already determined the matter on its merits.

Laurentian University of Sudbury brought an unopposed motion for an order sanctioning its Plan of Compromise and Arrangement under the Companies' Creditors Arrangement Act.

The Plan had been approved by the requisite double majority of affected creditors.

The Superior Court of Justice found that the applicant strictly complied with all statutory requirements, no unauthorized steps were taken, and the Plan was fair and reasonable.

The Court also approved the third-party releases contained in the Plan, unsealed previously sealed exhibits, and extended the stay of proceedings to allow for the Plan's implementation.

The applicant university brought a motion within its CCAA proceedings for an order extending the stay period and an order approving the refinancing of its debtor-in-possession (DIP) facility with the provincial government.

The court found that the applicant had acted in good faith and with due diligence, and that the cash flow forecast demonstrated sufficient liquidity to operate during the extended stay period.

The court granted the requested orders, noting the significant interest rate reduction under the replacement DIP facility.

In the CCAA proceedings of Laurentian University, the applicant sought an order regarding a Compensation Claims Process.

On consent, the court deferred relief related to Third Party RHBP Claims to a subsequent hearing, ordering that the deadlines and procedures in the Compensation Claims Process Order would not apply to those claims at this time.

The remaining unopposed relief was granted.

Thorneloe University sought leave to appeal a CCAA judge's decision that allowed Laurentian University to disclaim federation agreements and approved a debtor-in-possession (DIP) loan amendment.

Thorneloe argued the disclaimer would cause its insolvency, provided minimal financial benefit to Laurentian, and was motivated by anti-competition.

The Court of Appeal dismissed the leave motion, finding the proposed appeal was not prima facie meritorious, not of significance to the practice, and would unduly hinder the progress of the CCAA restructuring.

The court upheld the CCAA judge's balancing of interests under s. 32(4) of the CCAA, emphasizing the high deference owed to supervising judges in CCAA proceedings.

Laurentian University brought a motion within its CCAA proceedings seeking the appointment of a Chief Redevelopment Officer, an increase in the fee cap for the Board of Governors' independent counsel, and approval of a claims process.

The court approved the appointment of the CRO and the fee increase.

Regarding the claims process, TD Bank proposed amendments to require consultation on claims over $5 million.

Balancing the need for efficiency with creditor involvement, the court modified the claims process to establish an 'Inspector Group' to authorize the compromise of material claims, drawing on principles from the Bankruptcy and Insolvency Act.

The applicant, Laurentian University, brought a motion within its CCAA proceedings to extend the stay of proceedings, approve an amendment to its DIP facility increasing the available funds by $10 million, and approve settlement agreements with its faculty association, staff union, and Huntington University.

The court found that the applicant had acted in good faith and with due diligence, making significant progress in its restructuring.

Despite opposition from Thorneloe University and the University of Sudbury regarding the DIP amendment, the court approved the requested relief, finding the DIP conditions reasonable and the extension necessary for the applicant's continued operations and restructuring efforts.

The University of Sudbury brought a motion to set aside a Notice of Disclaimer issued by Laurentian University under section 32 of the CCAA.

Laurentian University sought to disclaim the Federation Agreements with its federated universities as part of its financial restructuring.

The moving party argued the disclaimer was issued in bad faith, would cause significant financial hardship, and would negatively impact French language rights.

The court dismissed the motion, finding no bad faith, insufficient evidence of significant financial hardship to outweigh the restructuring needs, and noting that the moving party had already resolved to become an independent francophone university.

The court concluded the disclaimer was necessary for Laurentian University to present a viable plan to its creditors and avoid bankruptcy.

Thorneloe University brought a motion under section 32(2) of the CCAA to prohibit Laurentian University from disclaiming their Federation Agreement and Financial Distribution Notice.

Laurentian argued the disclaimer was necessary to achieve financial sustainability and present a viable restructuring plan, saving approximately $7.7 million annually.

Thorneloe argued the disclaimer would cause it significant financial hardship and force it into insolvency.

The court balanced the competing interests, giving significant weight to the Monitor's recommendation, and concluded that upholding the disclaimer was the least undesirable choice to prevent the potential collapse of Laurentian University.

The motion was dismissed.

The applicant, Laurentian University of Sudbury, brought a motion within its CCAA proceedings for an order extending the stay period, approving term sheets with faculty and staff unions, approving a transition agreement with Huntington University, and approving an amendment to its DIP facility to increase the available principal amount by $10 million and the DIP Lender's Charge to $35 million.

The court granted the motion, with reasons to follow.

Thorneloe University brought a motion under section 32(2) of the CCAA seeking an order that its Federation Agreement and Financial Distribution Notice with Laurentian University not be disclaimed or resiliated, and to amend the DIP Amendment Agreement.

The court dismissed the motion, with reasons to follow.