D.J. Miller

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.

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.

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.

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.

The Court of Appeal for Ontario refused leave to appeal a sealing order issued by a CCAA supervising judge in the Laurentian University insolvency proceedings.

The moving parties, including faculty unions, sought access to confidential documents (letters between Laurentian and the Ministry of Colleges and Universities) that were sealed to protect restructuring efforts.

The Court applied the Sierra Club test for sealing orders and the four-factor test for leave to appeal in CCAA cases, finding the proposed appeal was not prima facie meritorious, would unduly hinder the time-sensitive restructuring, and was not of sufficient significance to the action.

The court emphasized deference to the supervising judge's discretion in complex CCAA matters.

Laurentian University sought orders under the CCAA to apply a 65.8% Transfer Ratio to commuted value pension transfers for 27 individuals and to confirm a stay on pre-filing Pension Benefits Guarantee Fund (PBGF) assessments.

The court granted the application to apply the Transfer Ratio, finding it necessary to preserve pension plan assets and ensure equitable treatment among beneficiaries, despite objections from some affected individuals who argued they relied on a 100% transfer ratio.

The court also confirmed the stay on PBGF assessments, characterizing them as pre-filing obligations based on when the amount was determined.

This supplementary endorsement addresses a challenge to a sealing order granted in the Companies’ Creditors Arrangement Act (CCAA) proceedings of Laurentian University of Sudbury.

The sealing order covered confidential correspondence between the University and the Ministry of Colleges and Universities, which Laurentian University argued contained sensitive information that, if disclosed, could jeopardize its restructuring efforts.

Parties opposing the sealing order contended there was no evidentiary basis for it.

Applying the two-branch test from Sierra Club of Canada v. Canada (Minister of Finance), the court found that the disclosure posed a real and substantial risk to the University's future viability, that the "commercial" interest extended to the broader community, and that no reasonable alternatives existed given ongoing mediation.

Consequently, the court maintained the confidentiality of the exhibits and the existing sealing order.

Laurentian University (LU) sought an Amended and Restated Initial Order under the Companies' Creditors Arrangement Act (CCAA) to facilitate its restructuring.

The requested relief included an extension of the stay of proceedings until April 30, 2021, approval of a $25 million Debtor-in-Possession (DIP) facility, an increase in the Administration Charge to $1.25 million, and an increase in the Directors' Charge to $5 million.

LU also sought a stay of pre-filing and post-filing special payments to its defined benefit pension plan and a stay of requests under the Freedom of Information and Protection of Privacy Act (FIPPA).

The court granted all requested relief, finding it necessary and reasonable for the continued operation and restructuring of the university.

The sealing order for certain confidential exhibits was maintained pending a supplementary endorsement.

Laurentian University of Sudbury applied for an Initial Order under the Companies' Creditors Arrangement Act (CCAA) due to a severe liquidity crisis and insolvency.

The court found that the university, a not-for-profit corporation, qualifies as a debtor company under the CCAA.

The court granted the Initial Order, which included a stay of proceedings, authorization for pre-filing and post-filing payments to students, an Administration Charge, and a Directors' Charge.

The court also granted a sealing order for confidential correspondence with the Ministry to protect the restructuring efforts.

Commercial landlord appealed an order limiting its entitlement to draw on a $2.5 million standby letter of credit posted by a bankrupt tenant as security for a lease.

The motion judge held that, following the trustee’s disclaimer of the lease, the landlord could draw only the statutory preferred claim for three months’ accelerated rent under the Bankruptcy and Insolvency Act.

The Court of Appeal held that the autonomy principle governing letters of credit meant the issuing bank’s obligation to honour complying presentations was independent of the underlying lease and not limited by insolvency law absent fraud.

The court also found the motion judge erred in interpreting the lease to require a reduction in the letter of credit because the tenant had not “promptly” paid rent at all times as required.

The landlord was therefore entitled to draw the full amount of the letter of credit.

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.

Oxford Properties Group brought a motion seeking the appointment of a specific arbitrator to determine the current value of the Newmarket Property under an option agreement.

Sears Canada Inc. and its Monitor brought a cross-motion requesting the appointment of a different arbitrator, who was already acting as a Claims Officer in the CCAA proceedings, to determine both the property's value and Oxford's related disputed claims.

The court found the issues to be inextricably linked and that separate proceedings would lead to additional cost and delay.

The court granted the cross-motion, appointing the arbitrator proposed by Sears and the Monitor to resolve all outstanding issues related to the property in a single, consolidated proceeding, thereby dismissing Oxford's motion.