Jeremy R. Opolsky

The Opposing Landlords sought costs after successfully opposing the debtor Applicants' motion to assign 25 commercial leases to a third party in a CCAA proceeding.

The court found that the dispute was a classic adversarial proceeding, entitling the successful landlords to costs.

The court awarded partial indemnity costs to the landlords, including additional costs to Ivanhoe Cambridge for opposing ipso facto relief.

However, the court deferred payment of the costs until the end of the CCAA proceeding to avoid unfairly prejudicing the secured creditors' collateral before priorities are finally determined.

The appellants, registered owners of an Oakville property, sought to extend the time to appeal and stay a summary judgment order granting the respondent mortgage lender possession of the property.

The appellants had defaulted on their mortgage obligations and were facing eviction.

They claimed they did not understand the mortgage documents and were manipulated into signing them, and that the electronically signed documents were invalid.

The motion judge found no evidence of fraud or unconscionable conduct and granted summary judgment.

The Court of Appeal dismissed both the motion to extend time and the motion to stay, finding no serious grounds of appeal and insufficient evidence of irreparable harm.

The court noted that loss of a home due to mortgage default does not automatically constitute irreparable harm, particularly where the parties agreed to the mortgage terms.

This decision concerns three motions to approve class counsel fees in the context of insolvency proceedings under the Companies' Creditors Arrangement Act involving three major tobacco companies.

The court approved the Quebec Class Action Plaintiffs' counsel fee request of approximately $901 million (representing 22% of the $4.119 billion allocated to the Quebec class members), the Knight Class Counsel fee request of $5 million plus disbursements, and the Tobacco Producers' counsel fee request of $3.75 million.

The court found that the fees were fair and reasonable given the exceptional risks assumed, the unprecedented outcome achieved, and the unique circumstances of the case.

A $50 million reserve was established from the Quebec counsel fees to protect against any pro-rata reduction in class member compensation due to actual take-up rates or other factors.

In this CCAA proceeding, the court granted multiple orders sought by Hudson's Bay Company and related entities, including approval of lease assignment agreements with YM Inc. and Ivanhoe Cambridge, sealing of confidential bid information, extension of the stay of proceedings to October 31, 2025, and approval of the Monitor's reports and activities.

The court rejected requests for adjournment and conditional distributions, finding the lease monetization process was fair and transparent, and that the proposed transactions represent a positive development for stakeholders.

The court granted the Monitor's application to assign John Aquino into bankruptcy and continued the Mareva order against him.

The decision addresses the requirements for a bankruptcy order under the Bankruptcy and Insolvency Act, the discretion to dismiss or stay such an application, and the standards for continuing a Mareva injunction post-judgment.

The court found that John Aquino had committed an act of bankruptcy, was unable to pay his debts, and that there was no bona fide dispute with the Monitor.

The court also rejected arguments that the application was brought for a collateral purpose and found the continuation of the Mareva order appropriate.

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

This supplementary endorsement addresses a request from JTI-Macdonald Corp. regarding the adequacy of notice elements in the Claims Procedure Order within the ongoing Companies' Creditors Arrangement Act (CCAA) proceedings.

The court confirmed its satisfaction that the notice elements in the Claims Procedure Orders are reasonable in the circumstances, addressing an oversight from previous submissions.

The Superior Court of Justice addressed multiple motions within the complex Companies’ Creditors Arrangement Act (CCAA) proceedings of JTI-Macdonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted a stay extension until January 31, 2025, and approved Meeting Orders and Claims Procedure Orders.

These orders facilitate the advancement of comprehensive Plans of Arrangement, developed by the court-appointed Mediator and Monitors, aiming for a Pan-Canadian global settlement of tobacco claims totaling $32.5 billion.

The court found the plans were not "doomed to fail" despite outstanding issues regarding financial allocation among the Tobacco Companies and the creditor status of JTI-Macdonald TM Corp.

The appellants, including the directing mind of two family-owned construction companies, participated in a false invoicing scheme that drained tens of millions of dollars from the debtor companies prior to insolvency.

The trustee in bankruptcy and monitor applied under s. 96(1)(b)(ii)(B) of the Bankruptcy and Insolvency Act to recover the false invoice payments as transfers at undervalue on the basis that the debtor companies intended to defraud, defeat, or delay creditors.

The Supreme Court held that insolvency is not a prerequisite to establishing fraudulent intent under s. 96(1)(b)(ii)(B), and that the directing mind's fraudulent intent was properly attributed to the debtor corporations.

The Court confirmed that the corporate attribution doctrine must be applied purposively, contextually, and pragmatically, and that the fraud and no benefit exceptions to corporate attribution do not apply in the context of s. 96 of the BIA because applying them would undermine the creditor protection purpose of that provision.

Appeal dismissed.

KSV Restructuring Inc., as court-appointed Monitor and Receiver for the Validus Entities (a group of power generation companies), brought motions seeking approval of a Sales and Investment Solicitation Process (SISP), authorization to implement it, approval of a Stalking Horse Bid by Macquarie Equipment Finance Ltd. and Far North Power Corp., approval of bid protections (break fee and expense reimbursement), approval of an Unknown Contract Bar Process, approval of Monitor's reports, and an extension of the stay of proceedings.

Additionally, the Receiver sought to increase its borrowing limit.

The Validus Entities opposed certain terms of the SISP and the Stalking Horse Offer, arguing the quantum owed to Macquarie was overstated, unconscionable, violated the anti-deprivation rule, and raised concerns about HST treatment.

The court granted all relief sought by the Monitor/Receiver, finding the SISP fair and transparent, the quantum owed to Macquarie correctly calculated under the sale-leaseback agreements, the anti-deprivation rule not engaged as the default was contractual, and the HST issues appropriately deferred to a transaction approval motion.

The court emphasized the need for stability and timely action to maximize recovery.