Geoffrey B. Morawetz

The applicant, BBB Canada Ltd., brought a motion under the Companies' Creditors Arrangement Act (CCAA) seeking two orders: first, to assign the Ottawa Trainyards Lease to Winners Merchants International L.P. pursuant to section 11.3 of the CCAA, due to the landlord's unresponsiveness; and second, to approve the Assignment and Assumption of Lease Agreement with Giant Tiger Stores Limited for the Colossus Lease, including vesting the applicant's interest free and clear of encumbrances.

The motion was unopposed, and the Monitor supported the applicant's position.

The court granted both requests, finding that the requirements of section 11.3 of the CCAA were met for the Ottawa Trainyards Lease assignment and that the factors under section 36(3) of the CCAA were satisfied for the Giant Tiger Agreement, including a reasonable process, Monitor's concurrence, fair and reasonable purchase price, and the transaction being in the best interest of stakeholders.

The applicant, BBB Canada Ltd., sought court approval under the Companies’ Creditors Arrangement Act (CCAA) for the assignment of several leases to Canadian Tire Corporation, Winners Merchants International L.P., and DKB Capital, and an extension of the stay period.

The motion was unopposed and supported by the Monitor, who deemed the transactions fair, reasonable, and in the best interests of the creditors.

The court approved the lease assignments and extended the stay period to allow for final reconciliation and settlement of liquidation sale amounts.

The applicants, a group of companies under CCAA protection, brought a motion seeking court approval for an Exclusive Sales Listing Agreement, an Auction Services Agreement, and a Key Employee Retention Plan (KERP) with a priority charge.

They also requested an extension of the stay of proceedings from June 2, 2023, to October 31, 2023, to facilitate an orderly wind-down of the business.

The motion was unopposed, and both the Monitor and the DIP Lender supported the requested relief.

The court found all requested relief appropriate and granted the motion.

The Monitor brought a motion for an extension of the stay period under the Companies’ Creditors Arrangement Act (CCAA) and authorization to make distributions from the Bremner Project Settlement Proceeds Reserve and the Niagara Project Settlement Proceeds Reserve.

The proposed distributions were to prioritize post-filing amounts, then proven priority claims (including lien claims under the Construction Lien Act), followed by repayment of certain outstanding amounts, and finally, any remaining balance for general unsecured creditors.

The motion was unopposed.

The court found the proposed distributions appropriate and the extension of the stay period reasonable, satisfying the good faith and due diligence requirements of the CCAA.

Paladin Labs Inc., as foreign representative for itself and Paladin Labs Canadian Holding Inc. (the Canadian Debtors), brought a motion under section 46 of the Companies' Creditors Arrangement Act (CCAA) for recognition and enforcement of two orders granted by the United States Bankruptcy Court in their Chapter 11 cases: a Bidding Procedures Order and a Bar Date Order.

The motion was unopposed.

The court granted the motion, finding that recognition was consistent with principles of comity and Canadian public policy, and would enable the Canadian Debtors to proceed with the sale process to maximize asset value and ascertain claims.

The court-appointed Representative Counsel for the Bridging Unitholders brought a motion for a "Unitholder Advisor Claims Tolling Order" to suspend limitation periods for claims that approximately 26,000 unitholders might have against their investment professionals or financial institutions.

The motion sought to protect unitholders who might be unaware of the need to pursue individual claims or were awaiting clarity on recoveries from the Bridging funds.

The court granted the motion, affirming its statutory and inherent jurisdiction to issue such an order in complex receivership proceedings to prevent significant prejudice to unitholders and manage potential litigation.

The applicants in a CCAA proceeding sought an amended and restated initial order to extend the stay of proceedings, increase authorized borrowings under the DIP Term Sheet, and increase the Administration and Directors' Charges.

They also sought approval for an asset sale transaction (Pinnrz Transaction).

The Monitor supported the relief, and no party opposed.

The court granted all requested relief, finding the extension reasonable, the increased borrowings justified under CCAA s. 11.2(4), the increased charges approved under CCAA ss. 11.51 and 11.52, and the sale transaction approved under CCAA s. 36(3) and the Royal Bank of Canada v. Soundair Corp. test.

The applicant, BBB Canada Ltd., sought court approval under the Companies' Creditors Arrangement Act (CCAA) for an Omnibus Assignment and Assumption of Leases, FF&E and Trade Fixtures Agreement with DKB Capital.

The motion also requested orders for the assignment of certain leases under section 11.3 of the CCAA and a temporary sealing order for the unredacted agreement.

The court found the marketing process comprehensive, the consideration fair and reasonable, and the agreement beneficial to stakeholders.

The assignments were unopposed.

The court applied the Sherman Estate test for the sealing order and found it appropriate given its limited scope and time.

The motion was granted in its entirety.

In the receivership of the Bridging Funds, the Receiver brought a motion to determine whether unitholders with Potential Statutory Rescission Claims (based on misrepresentations in offering memoranda) or Potential Redemption Claims (based on unfulfilled redemption requests) were entitled to priority over General Unitholder Claims.

The court held that Potential Redemption Claims were not entitled to priority because the redemption requests had not been completed prior to the receivership.

However, the court held that Potential Statutory Rescission Claims were entitled to priority, finding that the statutory right of rescission under s. 130.1(1) of the Securities Act creates a de facto priority and justifies the imposition of a constructive trust over the invested funds.

The Phoena Group, a cannabis producer and distributor, applied for an initial order under the Companies' Creditors Arrangement Act (CCAA) due to insolvency and a severe liquidity crisis.

The application sought a stay of proceedings, appointment of Ernst & Young Inc. as Monitor, appointment of Darren Karasiuk as Chief Restructuring Advisor, and approval of an Administration Charge, DIP financing with a related charge, and a Directors' Charge.

The court granted all requested relief, finding the applicants met the criteria as "debtor companies" under the CCAA and that the proposed measures were necessary for an orderly wind-down and liquidation of assets in the best interests of stakeholders.

The applicants, Nordstrom Canada Retail, Inc., Nordstrom Canada Holdings Inc., LLC, and Nordstrom Canada Holdings II, LLC, sought an initial order under the Companies’ Creditors Arrangement Act (CCAA) for a stay of proceedings to facilitate an orderly wind-down of their Canadian operations.

Nordstrom Canada, a subsidiary of Nordstrom US, had incurred significant losses and Nordstrom US had ceased financial support.

The court granted the requested relief, including a 10-day stay of proceedings, extension of the stay to Nordstrom Canada Leasing LP and, for limited purposes, to Nordstrom US (Parent Stay), approval of an Employee Trust funded by Nordstrom US, appointment of Employee Representative Counsel, and authorization for certain pre-filing payments to critical suppliers.

The court also approved Administration and Directors' and Officers' charges.

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.

In the context of Laurentian University's CCAA proceedings, Thorneloe University appealed a Claims Officer's decision valuing its loss of commercial value claim at zero following the disclaimer of their Federation Agreement.

Thorneloe argued the Claims Officer erred by applying a lost profits approach rather than a loss of business value approach, relying on an expert report valuing the enterprise at $9.8 million.

The Superior Court dismissed the appeal, finding no palpable and overriding error in the Claims Officer's factual determination that Thorneloe was an unprofitable entity and his subsequent rejection of the expert's revenue multiplier methodology.

The court affirmed that expectation damages (lost profits) is the customary remedy for breach of contract, and a non-breaching party is not entitled to be put in a better position than if the contract had been performed.

This endorsement addresses a motion brought by a non-party, Khashayar Khavari, seeking leave to intervene as an added party in a receivership application.

The applicant, PricewaterhouseCoopers Inc. (as court-appointed receiver of Bridging Finance Inc.), sought to appoint a receiver over the respondents, Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. Khashayar Khavari claimed an equity interest in the respondent companies, which was subject to ongoing litigation, and argued he had an interest in the subject matter or could be adversely affected by the receivership order.

The motion was opposed by both the Bridging Receiver and the Respondents.

The court dismissed the motion, finding that Khashayar Khavari was a stranger to the debtor-creditor relationship, had no direct economic interest in the receivership application, and would not be unduly prejudiced as he could participate as an interested person on the service list.

The applicant, PricewaterhouseCoopers Inc. (Bridging Receiver), sought an order to appoint Richter Inc. as receiver and manager over Northern Citadel Capital Inc., One8One Davenport Inc., and 181 Davenport Retail Inc. due to an outstanding and defaulted loan.

Northern Citadel and One8One did not oppose the appointment but challenged its scope. 181 Retail opposed the appointment entirely, arguing its obligations were limited to a repaid loan and its security should have been discharged.

The court found the loan was in default and the contractual documents clearly established 181 Retail's liability as a guarantor for the full loan amount, rejecting arguments based on subjective intent or unfulfilled discharge instructions.

The court granted the appointment of Richter as receiver over all respondents but denied the Bridging Receiver's requests for sweeping investigative powers and immediate authorization to assign respondents into bankruptcy, deeming them unnecessary at that stage.

The Receiver brought a motion seeking approval of its proposed Net Asset Value (NAV) Methodology, the calculation and publication of the 2021 NAV, and the 2022 Permitted Transfers for the Bridging Funds.

The NAV Methodology was developed to facilitate the transfer of units from RRSP to RRIF accounts for unitholders turning 71, as required by the Income Tax Act.

The court found the requested relief appropriate, noting support from Representative Counsel and no opposition from the Ontario Securities Commission or the Canada Revenue Agency.

The motion was granted and the Receiver's Fifteenth Report was approved.

The Monitor in CCAA proceedings brought an unopposed motion to extend the stay of proceedings, approve a settlement agreement with a condominium corporation and another party, and approve its activities and fees.

The court found the settlement agreement reasonable and necessary, providing immediate benefits to stakeholders and a path to reducing a bond.

The court extended the stay to March 3, 2023, and approved the Monitor's activities and fees.

The Applicants brought an unopposed motion in CCAA proceedings for an order extending the Stay Period, approving the Fifty-Fifth Report of the Monitor, and approving the fees and disbursements of the Monitor and counsel.

The court found the Applicants were acting in good faith and with due diligence.

The court granted the motion, extending the Stay Period to March 31, 2023, to encourage expedited resolution, and approved the Monitor's report and the requested fees.

The Foreign Representative brought a motion under section 49 of the Companies' Creditors Arrangement Act for an order recognizing and enforcing several additional orders entered by the United States Bankruptcy Court in Chapter 11 proceedings.

The Information Officer supported the motion, noting the integrated nature of the operations and the equal treatment of Canadian and US stakeholders.

The court granted the motion, finding that recognition was appropriate to preserve the value of the Canadian debtors, enable continued operations, and ensure judicial comity.

The Monitor in the CCAA proceedings of Nortel Networks Corporation brought an unopposed motion for approval of its fees and disbursements, as well as those of its counsel, for the period of November 1, 2021, to October 31, 2022.

The court applied the overriding principle of reasonableness and considered the significant results achieved by the Monitor, including completing a $38 million distribution and recovering an additional $21 million.

Finding the fees fair and reasonable, the court granted the motion and approved the accounts.