D. J. Miller

In a landmark CCAA proceeding involving Hudson's Bay Company, the court declined to approve the assignment of 25 major retail department store leases across Canada to a new tenant, Ruby Liu Commercial Investment Corp., despite the transaction representing the highest bid and generating approximately $50 million in net proceeds for creditors.

The court found that the proposed assignee failed to meet the reasonableness standard under section 11.3(3) of the CCAA, particularly regarding its ability to perform the substantial and ongoing obligations under the leases.

The decision emphasizes that section 11.3 is an extraordinary power that must be exercised sparingly, and that the court must balance the interests of all stakeholders, including the contractual counterparties (landlords) who would be compelled into a long-term relationship with an untested and undercapitalized purchaser.

The court also rejected the applicants' arguments that certain lease provisions constituted ipso facto clauses violating the anti-deprivation rule and section 34 of the CCAA.

The decision addresses two competing motions for the appointment of representative counsel for investors in a receivership proceeding involving Sussman Mortgage Funding Inc. The court reviews the procedural background, the need for representative counsel, and the competing proposals from Aird & Berlis LLP and Paliare Roland Rosenberg Rothstein LLP.

The court ultimately appoints Aird & Berlis LLP as representative counsel, finding their approach and fee structure preferable for efficiency, transparency, and certainty.

The Children's Aid Society of Brant brought a motion for summary judgment seeking a finding that two Indigenous children were in need of protection and an order for their placement in the care and custody of their father, with discretionary access for the mother.

The mother conceded the protection finding but opposed the summary judgment, arguing for joint custody and a shared parenting regime.

The court granted the Society's motion in part, finding no genuine issue for trial regarding the children's primary placement with the father, due to the mother's lack of insight into past protection concerns and ongoing conflict.

However, the court found a genuine issue for trial regarding the mother's access, determining it should not be left to the father's discretion and required judicial determination.

In a child protection status review, the biological father (E.J.) brought a motion for summary judgment seeking primary care and custody of two children, S.J.M. and L.J. The Children's Aid Society and Six Nations Child and Family Services supported the father's request, while the biological mother (S.M.) opposed it, seeking the children's return to her care.

The court granted the father's motion for custody, finding no genuine issue for trial regarding placement, as the mother had not demonstrated sufficient insight or responsibility for past protection concerns.

However, the court determined that the issue of the mother's access with the children presented a genuine issue for trial and ordered it to be set for a trial management conference.

This motion for summary judgment concerned the placement of A.M., an Indigenous child, in extended society care.

The Children's Aid Society sought an order for extended care, while the biological mother opposed it, advocating for A.M.'s return to her care.

The court emphasized the "last resort" nature of extended care, particularly for Indigenous children, and the statutory priority for family and community placements under federal legislation.

The Society failed to demonstrate that there was no genuine issue for trial, specifically lacking evidence of exhaustive efforts to find permanent family or community placements.

The motion was dismissed, preserving the possibility of A.M.'s return to her mother's care after a full trial.

The Applicants, part of the Lydian Group which owns a development-stage gold mine in Armenia, sought an order sanctioning their Plan of Arrangement under the CCAA.

The Plan, supported by the Monitor and the requisite majority of secured creditors, provides for the privatization of the Lydian Group and the release of existing indebtedness to Senior Lenders.

The court found the Plan to be fair and reasonable, noting that while equity claimants would receive no compensation, this reflected the economic reality of the insolvency.

The court also approved third-party releases, an increase to the DIP charge, an extension of the stay period, a sealing order for commercially sensitive information, and the Monitor's activities and fees.

The Children and Family Services for York Region (Society) sought a temporary order for the respondent father, J.M., to have supervised access to the child, J., twice weekly.

The respondent mother, C.F., opposed this, requesting access be deferred until Society offices reopened and then be supervised by two CAS workers, specifically excluding family members or friends.

The father consented to the Society's motion but requested an additional term regarding future access discretion.

The court found that the COVID-19 closure of CAS facilities constituted a material change in circumstances.

Applying a contextual analysis, the court determined that the Society's proposal for supervision by approved paternal aunts, remotely monitored by a FIT worker, sufficiently mitigated the risk of harm to the child and promoted the child's best interests, protection, and well-being.

The Society's motion was granted, and the mother's motion was dismissed.

In CCAA proceedings, the court issued a supplementary costs endorsement following an earlier costs decision.

The issue concerned whether the full amount of a law firm disbursement account should be added to the cost award.

After reviewing detailed particulars, the court found the discounted account represented fair value for services rendered and that the disbursements were reasonable.

The court approved inclusion of the full amount of the account as a disbursement and revised the total costs award accordingly.

Former directors sought declarations that claims advanced in a Quebec class action concerning pension losses were barred by releases granted during Companies’ Creditors Arrangement Act proceedings.

The court held that it had jurisdiction to determine the motion because the dispute concerned the effect of orders and releases issued within the CCAA restructuring.

The contractual releases executed by the union on behalf of beneficiaries were broadly worded and applied to all claims relating to facts existing at the time of the release, whether known or unknown.

The court found that the claims process and releases extinguished any potential claims against the directors relating to the pension deficit.

Accordingly, the Quebec class action claims against the directors were fully and irrevocably released.