George Benchetrit

On a motion to lift the CCAA stay, the moving parties sought to pursue post-filing software licensing and copyright-related claims against the Canadian debtors in U.S. proceedings, relying in part on a forum selection clause and asserted overlap with claims against U.S. debtors and a purchaser.

The court held that in insolvency proceedings the single proceeding model and the public policy favouring centralized control of claims outweighed the contractual forum provision.

The court found the moving parties were not strangers to the insolvency, that fragmented proceedings created risks of inefficiency and inconsistent findings, and that the U.S. process would not adequately serve the timely and economical resolution of claims within the CCAA.

The motion to lift the stay was dismissed.

A secured creditor applied for the appointment of a receiver over a resort property following repeated defaults under loan agreements secured by mortgages and general security agreements.

A second mortgagee opposed the application, proposing to cure arrears under the first mortgage pursuant to s. 22 of the Mortgages Act and conduct a power of sale instead.

The court considered whether the appointment of a receiver under s. 101 of the Courts of Justice Act and s. 243(1) of the Bankruptcy and Insolvency Act was “just or convenient.” Given ongoing defaults, competing creditor interests, tax arrears, and disputes regarding the marketing and sale process, the court concluded that a court-supervised receivership would better protect the interests of all stakeholders.

The application was granted and a receiver appointed, subject to a reduced borrowing limit.

The appellants appealed from the Court of Appeal's reversal of the CCAA court's decision regarding the priority of pension plan wind-up deficiency claims over court-ordered DIP financing charges.

The majority held that wind-up deficiencies under s. 75(1)(b) of the Pension Benefits Act were subject to a statutory deemed trust under s. 57(4), but that the deemed trust was superseded by the DIP charge by virtue of the doctrine of federal paramountcy.

The majority further held that while the employer-administrator breached its fiduciary duty by failing to ensure the pension plan beneficiaries had adequate notice and representation in the CCAA proceedings, a constructive trust was not an appropriate remedy because the breach did not result in an identifiable asset that it would be unjust for the wrongdoer to retain.

A secured lender applied for the appointment of a receiver over companies engaged in sub‑prime vehicle financing, while the debtor companies brought a cross‑application seeking protection under the Companies’ Creditors Arrangement Act.

The court considered the statutory tests under the Bankruptcy and Insolvency Act and the Courts of Justice Act for appointing a receiver and assessed the parties’ conduct, the deterioration of the secured creditor’s collateral, and the lack of available operating financing.

The debtor companies had made material misrepresentations regarding their financial position and had repeatedly failed to meet repayment deadlines despite forbearance arrangements.

The court found that appointing a receiver was just and convenient to preserve and realize on the secured creditor’s collateral.

The court also refused CCAA relief because the debtors had no restructuring plan or “germ of a plan,” and the major secured creditors opposed any arrangement.

The appellants appealed a sealing order that redacted the amounts to be paid under two proposed settlement agreements in a CCAA proceeding.

The appellants argued the sealing order unjustifiably infringed the open court principle.

The Court of Appeal dismissed the appeal, finding that litigation settlement privilege applied to the settlement agreements until approved by the court.

The court held that the sealing order was a minimal intrusion on the open court principle, the requirement to sign a confidentiality agreement did not impose an undue burden, and the respondents did not waive privilege by complying with the court order.

Following a decision in CCAA proceedings, the parties made written submissions on costs.

The court approved an agreement to pay the Retirees' full indemnity legal fees from the Executive Plan fund.

The court declined to make a similar order for the United Steelworkers regarding the Salaried Plan.

The court made no order as to costs for the underlying motions, following conventional CCAA practice.

For the appeal, the Retirees and the USW were awarded partial indemnity costs fixed at $40,000, payable jointly and severally by Sun Indalex and the U.S. Trustee.

Indalex Limited, while under CCAA protection, obtained a super-priority charge for DIP financing and subsequently sold its assets.

The sale proceeds were insufficient to cover both the DIP lenders and the deficiencies in Indalex's underfunded pension plans.

The Court of Appeal held that a deemed trust under s. 57(4) of the Pension Benefits Act applied to the pension deficiencies and took priority over the DIP lenders' super-priority charge, as no explicit finding of federal paramountcy had been made.

Furthermore, the Court found that Indalex breached its fiduciary duties as the pension plans' administrator by failing to protect the beneficiaries' interests during the CCAA proceedings, justifying a constructive trust over the reserve fund.

The appellant, an undischarged bankrupt, appealed an order refusing to set aside a previous order that permitted the respondent to enforce several German judgments in Ontario.

The appellant argued that a mutual release signed in a separate action precluded the enforcement.

The Court of Appeal upheld the motion judge's finding that the release did not apply to the respondent, who was not a party to that action.

The Court also refused to admit a settlement agreement as fresh evidence, noting the appellant had previously refused to include it and it failed to meet the Palmer criteria.

The appeal was dismissed.

The appellant appealed a decision of the motion judge in a bankruptcy and insolvency proceeding.

The Court of Appeal dismissed the appeal, declining to consider arguments that were not placed before the motion judge.

Costs were awarded to the respondents.

The appellants appealed the dismissal of their motion for leave nunc pro tunc under s. 215 of the Bankruptcy and Insolvency Act to commence a claim against the former interim receiver and trustee in bankruptcy.

The Court of Appeal found no error in the motion judge's conclusion that the appellants failed to provide sufficient affidavit evidence to demonstrate a prima facie case.

The appeal was dismissed with costs.

The appellant, holding a perfected general security agreement over the assets of a company in receivership, appealed a motion judge's decision granting priority over three injection molding machines to the unpaid supplier.

The supplier had delivered the machines but retained title pending payment and electrical safety certification, which had not yet been obtained.

The Court of Appeal dismissed the appeal, upholding the motion judge's finding that because the conditions of sale were not met, the debtor had not acquired any rights in the machines to which the appellant's security interest could attach under the Personal Property Security Act.

The appellant trustee was successful on appeal and sought costs against the respondent employees.

The employees argued they should be shielded from costs as public interest litigants or under the principles of the Class Proceedings Act.

The Court of Appeal rejected these arguments, finding the employees had a direct financial stake and the matter was not a class action.

The court awarded the trustee costs for the proceedings before the registrar, the Superior Court, and the Court of Appeal, totaling approximately $24,000.

Prior to its bankruptcy, the bankrupt company deducted pension contributions from its employees' pay but failed to remit them, instead commingling the funds in its general bank account.

The account balance subsequently fluctuated and went into a negative balance before returning to a positive balance on the date of bankruptcy.

The employees claimed the unremitted contributions as trust property under s. 67(1)(a) of the Bankruptcy and Insolvency Act.

The Court of Appeal held that while a trust was initially created, the trust property ceased to be identifiable and could not be traced once the account went into overdraft.

Consequently, the funds in the account at the date of bankruptcy were not trust funds, and the Trustee's disallowance of the employees' claim was upheld.

The court-appointed interim receiver brought a motion to lift a stay pending appeal of an order approving the sale of the bankrupt companies' assets.

The appellants opposed the sale.

The Court of Appeal found that the appeal had questionable merit and that delaying the sale of the business as a going concern would cause manifest prejudice.

The motion was allowed, the stay was lifted, and the receiver was authorized to complete the sale.

Following the dismissal of their appeal, the appellants made written submissions regarding costs.

They argued that costs should not be awarded on a joint and several basis, and that four appellants whose judgments were satisfied while the case was under reserve should not bear any costs.

The Court of Appeal agreed, ordering costs against the remaining appellants on a several, pro rata basis rather than jointly and severally, noting that a joint and several order would be unusually onerous.

The appellants, Canadian 'Names' in the Lloyd's insurance market, appealed a decision allowing the registration and enforcement of U.K. judgments against them for unpaid reinsurance premiums.

They argued that the U.K. proceedings denied them natural justice by preventing them from litigating fraud claims before judgment, and that enforcing the judgments would be contrary to Ontario public policy because Lloyd's had breached the prospectus requirements of the Ontario Securities Act.

The Court of Appeal dismissed the appeal, finding no denial of natural justice because the U.K. courts assumed the fraud allegations were true but found they did not provide a legal defence.

The Court also held that enforcing the judgments was not contrary to public policy, emphasizing international comity and the fact that Ontario courts had previously determined England was the proper forum for the dispute.