Jeffrey Wayne Galway

The applicant, U.S. Steel Canada Inc. (USSC), sought approval for a second key employee retention plan (KERP 2), while a group of unions and representative counsel (Moving Parties) sought an order to terminate the suspension of other post-employment benefits (OPEBs).

The court granted the KERP 2 motion, finding it fair and reasonable for business stability and restructuring efforts.

The OPEB motion was denied, as the court found no fundamental improvement in USSC's profitability to warrant OPEB reinstatement, and that USSC's proposed one-time contribution of $2.7 million to a transition fund for retired employees appropriately balanced competing interests during the ongoing sales and investor solicitation process (SISP).

The appellant union appealed a decision finding that the CCAA judge had no jurisdiction to apply the American doctrine of equitable subordination to subordinate the claims of the respondent parent company.

The Court of Appeal dismissed the appeal, holding that the CCAA does not provide express or implied authority to apply equitable subordination, and that the doctrine does not fall within the scheme of the statute, which focuses on the implementation of a plan of arrangement or compromise rather than legislating a scheme of priorities.

In a Companies' Creditors Arrangement Act (CCAA) proceeding, the applicant, U.S. Steel Canada Inc., sought an extension of the stay of proceedings, authorization and approval of a second amending and extension agreement for DIP financing, and approval of a second key employee retention plan (KERP).

United States Steel Corporation (USS) sought a shorter stay period.

The court granted the applicant's motion to extend the stay of proceedings to November 30, 2016, finding the applicant acted in good faith and with due diligence, and that a shorter, court-imposed deadline was not necessary or useful at that time.

The court also authorized and approved the Second Extension Agreement for DIP financing, noting its importance as a cash buffer and for maintaining business stability.

Motions regarding post-employment benefit plans and KERP were adjourned or granted separately.

This supplemental endorsement in CCAA proceedings addressed the secured status of a claim (#11(b)) filed by United States Steel Corporation (USS) against U.S. Steel Canada Inc. (USSC).

The claim arose from USS's payments under guarantees for USSC's third-party obligations.

The court found that USS's rights of indemnification were not "Secured Obligations" under the November Security Agreement, primarily because the agreement's intent was limited to contractual obligations related to direct advances or sale of goods, not third-party guarantees.

Furthermore, the court concluded that the grant of security for these indemnification rights constituted a fraudulent preference under section 95 of the Bankruptcy and Insolvency Act due to a lack of fresh consideration.

Consequently, Claim #11(b) was deemed an unsecured claim.

The applicant, U.S. Steel Canada Inc., sought an extension of the stay of proceedings under the Companies’ Creditors Arrangement Act (CCAA) to July 28, 2016.

United States Steel Corporation (USS) opposed, seeking a shorter extension and the imposition of conditions for disclosure of Phase II bids and an updated liquidation analysis.

The court granted the extension as requested by the applicant, finding that the applicant acted in good faith and with due diligence, and that a longer stay furthered the prospect of a successful restructuring.

The court denied USS's requests for a shorter extension and conditions, deeming them premature and potentially detrimental to the restructuring process, and found insufficient evidence of value destruction.

The applicants (Representative Counsel for non-unionized employees and retirees, USW Locals 1005 and 8782, and the City of Hamilton) sought "for counsel's eyes only" disclosure of a confidential settlement agreement between United States Steel Corporation (USS), U.S. Steel Canada Inc. (USSC), and the Government of Canada.

The motion was brought in the context of CCAA proceedings, with applicants arguing procedural fairness and a minor exemption from settlement privilege.

The court dismissed the motion, finding that the applicants failed to demonstrate how they would be prejudiced without access to the specific details of the undertakings in the agreement, or how the information was material to their claims or negotiations.

The court emphasized that there is no exemption from settlement privilege for the purpose of reviewing a document to determine if a public interest exists that would displace the privilege.

In the CCAA proceedings of U.S. Steel Canada Inc., its parent company, United States Steel Corporation, sought approval of several proofs of claim totaling over $2 billion.

Various stakeholders objected, arguing that the intercompany loans should be re-characterized as 'equity claims' under the CCAA and that the security granted for certain advances was void as a fraudulent preference or unenforceable for lack of consideration.

The court rejected the objections, finding that the parent company had a reasonable expectation of repayment when the advances were made, and that the security was validly granted for fresh consideration and did not constitute a fraudulent preference.

The claims were confirmed as debt claims.

The Ad Hoc Committee of Purchasers of the Applicants' Securities moved for approval of a settlement agreement and plan of allocation in the context of CCAA proceedings involving Cash Store Financial Services and related entities.

The settlement provided for a payment of $13,779,167 by the defendants to resolve allegations of false and misleading statements regarding financial results.

The court approved the settlement and the associated third-party releases, finding them fair, reasonable, and consistent with the purpose of the CCAA.

The motion to approve the plan of allocation was adjourned on consent.

In CCAA proceedings involving a payday lending enterprise, class members in Ontario consumer class actions moved for approval of three settlement agreements forming part of a broader global resolution of litigation involving the debtor companies, their directors and officers, and related parties.

The settlements resolved certain class claims and partially resolved a third‑party lender claim, providing more than $10 million in recovery with potential participation in future litigation proceeds.

The court applied established settlement approval factors including likelihood of success, litigation risks, counsel recommendations, absence of objections, and arm’s‑length negotiations.

The court concluded that the settlements were fair, reasonable, and in the best interests of the class and the restructuring process.

Staff of the Ontario Securities Commission alleged that the respondent had inadequacies in its systems of controls and supervision, resulting in clients paying excess fees.

The respondent self-reported the issue, cooperated with Staff, and entered into a no-contest settlement agreement.

The Commission approved the settlement, which included a compensation plan, enhanced policies, a voluntary payment of $250,000, and $20,000 for costs, finding it to be in the public interest.

This was a costs decision arising from a class proceeding settlement approval process involving objectors represented at a third settlement approval hearing.

The court held that the unusual procedural history made the case unsuitable for setting broader principles about costs to objectors, and instead enforced its earlier direction that up to $100,000 had been budgeted for this expense, less $17,500 already awarded in the abandoned appeal.

The objectors' claim for $222,515 all inclusive was rejected as excessive.

The court awarded $82,500 all inclusive, holding that services connected to taking instructions, the abandoned appeal circumstances, and preparation for and attendance at the settlement approval motion fell within the intended scope of compensable work.

Following the dismissal of the appellant's class action appeal as statute-barred, the respondent trust companies sought costs.

The appellant argued that no costs should be awarded because the action was brought in the public interest and raised a new point of law under s. 31(1) of the Class Proceedings Act, 1991.

The Court of Appeal rejected this argument, finding no improper conduct by the respondents and concluding that costs should follow the event.

The respondents were awarded their requested costs totaling $61,966.55.

The appellant appealed a Rule 21 motion decision that dismissed her proposed class action claims for constructive and common law fraud against the respondent trustees.

The motion judge found the claims were released by a CCAA settlement and were statute-barred.

The Court of Appeal upheld the decision, finding that the appellant had all material facts necessary to discover her claim when the Monitor's 39th report was issued in February 2010.

Because she issued her notice of action more than two years later in August 2012, the claim was statute-barred under the Limitations Act, 2002.

The appellant appealed a decision of the Financial Services Tribunal dismissing his claim for a pension from his former employer.

The appellant argued that the pension plan's locking-in provision was clear and entitled him to a pension, or alternatively, that the ambiguous provision should be interpreted in his favour using the contra proferentem rule.

The Divisional Court dismissed the appeal, finding the Tribunal's interpretation of the ambiguous provision was reasonable and consistent with the legislative context, and that the Tribunal made no error in declining to apply the contra proferentem principle.

The plaintiff brought a proposed class action against the former and current trustees of the Nortel Health and Welfare Trust, alleging fraud and constructive fraud in the administration of the trust.

The defendants moved to strike the claim under Rule 21, arguing that the claims were barred by a release granted in Nortel's CCAA proceedings and were statute-barred under the Limitations Act, 2002.

The court held that the CCAA release barred the constructive fraud claims, and that the plaintiff failed to plead a tenable claim for common law fraud.

Furthermore, the court found that the claims were discovered outside the two-year limitation period.

The action was dismissed.

In a class proceeding concerning the ownership of surplus from partial wind-ups of a pension plan and alleged improper administrative expenses, the parties sought approval of a revised settlement agreement after earlier settlement arrangements failed due to significant changes in actuarial surplus estimates.

The motion was brought under s. 29 of the Class Proceedings Act, 1992 for court approval of the amended settlement.

Despite objections from certain class members, the court held the revised agreement was fair, reasonable, and in the best interests of the class when assessed against litigation risks, fluctuating actuarial calculations, and the possibility that the employer might ultimately have been entitled to the surplus.

The settlement substantially increased the guaranteed distribution to class members and included financial concessions from both the defendant and class counsel.

The court approved the amended settlement as falling within the acceptable range of reasonableness for class action settlements.

In proceedings under the Companies’ Creditors Arrangement Act, the court addressed scheduling issues for a complex multi‑party trial involving the allocation of assets among creditor groups.

The parties proposed deferring the trial from April 1, 2014 to April 28, 2014, but disagreement remained regarding whether the later date would be feasible.

The court concluded that maintaining the earlier date risked a chaotic trial and that a rolling start date would create further uncertainty.

To ensure certainty and orderly preparation, the court rescheduled the trial to begin May 12, 2014 for 20 days and set case management and trial management conferences.

The court also required all parties to provide comprehensive fee and disbursement summaries to monitor escalating litigation costs.

The Applicant claimed entitlement to a deferred pension based on his employment with the company from 1970 to 1982, arguing he was a continuous member of the pension plan despite a brief break in service in 1975.

The Plan administrator and the Superintendent of Financial Services took the position that the Applicant received a Cash Refund Benefit when he terminated his employment in 1982, extinguishing any further entitlement.

The Financial Services Tribunal found that the Applicant failed to meet his burden of proof, concluding on a balance of probabilities that he had received a Cash Refund Benefit in 1982 and that his benefits were not locked in under the Plan or the Pension Benefits Act because he was under 45 years of age at the time of termination.

The application was dismissed.

The self-represented applicant withdrew her request for a hearing regarding spousal pension benefits while experiencing considerable distress during the proceeding.

The following day, she requested to reopen the matter and rescind her withdrawal.

The respondent and added party did not oppose the request.

The Tribunal granted the motion to rescind the withdrawal, noting the unique circumstances and the applicant's apparent distress.

The Tribunal also rescinded the permanent sealing and anonymization orders pending the recommencement of the hearing.

The Court of Appeal for Ontario issued a costs endorsement following an appeal.

Costs were awarded to the respondent in the amount of $23,000, inclusive of relevant disbursements and taxes.