Evan Snyder

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 decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

On a mortgage enforcement motion, the moving party sought leave to amend her defence and counterclaim to add multiple proposed defendants by counterclaim, validate service, convert the action from foreclosure to sale, and obtain consolidation with a separate related action.

The court held there was no non-compensable prejudice and that the proposed joinder satisfied the Rules of Civil Procedure because the pleaded facts alleged an interconnected series of transactions, common factual issues, uncertainty about liability, and a strong interest in avoiding inconsistent findings.

The court further held that the proposed unlawful act conspiracy pleading was legally sufficient at the pleadings stage and need not prove the merits on the motion.

Leave to amend, conversion to a sale action, and validation of service were granted; consolidation was left unnecessary in light of the expected discontinuance of the separate action.

The appellants, representing a class of Ontario Shoppers Drug Mart franchisees, appealed a summary judgment decision regarding their entitlement to Professional Allowances paid by generic drug manufacturers.

The Court of Appeal upheld the motion judge's findings that Shoppers breached the 2002 franchise agreement by retaining the allowances, which constituted 'revenue', but did not breach the 2010 agreement, which explicitly allowed Shoppers to retain such concessions.

The Court also upheld the application of a rolling limitation period and the refusal to award aggregate damages due to the idiosyncratic nature of the profit-sharing model.

However, the Court allowed the appeal regarding the quantification of damages, finding that Shoppers breached its duty of good faith by arbitrarily allocating $129 million as out-of-province rebates to avoid sharing the funds with Ontario franchisees, bringing the total Professional Allowances received to $1.084 billion.

Antibe Therapeutics Inc. (Antibe) commenced CCAA proceedings seeking a stay extension, while Nuance Pharma Ltd. (Nuance), Antibe's largest creditor, sought termination of the CCAA and appointment of a receiver, along with a declaration of constructive trust over funds.

The court found Antibe's CCAA application to be a defensive tactic with no realistic restructuring plan.

Given the unique circumstances, including Antibe's core business (a drug) being far from commercialization and the arbitral finding of Antibe's deliberate misrepresentation, the court terminated the CCAA proceeding and appointed a receiver over Antibe's property.

The court declined to rule on Nuance's trust claim at this stage.

In this certified class action, the plaintiff franchisees (Associates) brought a motion for summary judgment against the franchisor, Shoppers Drug Mart, alleging breaches of contract, breaches of the duty of good faith, and unjust enrichment regarding various fees and the retention of Professional Allowances paid by generic drug manufacturers.

Shoppers brought a cross-motion for summary judgment to dismiss the claims, arguing they lacked merit and were statute-barred.

The court dismissed the claims regarding the Optimum Fee and Shoppers Charges, finding no breach of contract or bad faith.

The court also dismissed the unjust enrichment claim for Professional Allowances but found that Shoppers breached the 2002 Associates Agreement (but not the 2010 Agreement) by failing to remit Professional Allowances to the Associates.

The court held that aggregate damages were not viable and directed that the surviving breach of contract and distribution centre claims proceed to individual issues trials, subject to limitation periods.

The applicant brought a motion under s. 21(5) of the Courts of Justice Act to set aside a decision quashing her application for judicial review against the Healthcare of Ontario Pension Plan (HOOPP).

The applicant sought survivor benefits following the death of a plan member.

The Divisional Court dismissed the motion, upholding the finding that HOOPP is a private pension plan not exercising a statutory power or state authority, and therefore its decisions are not subject to judicial review.

The court also found no error in the motion judge's discretionary decision not to apply issue estoppel or in the costs award.