Joshua Louis Foster

This decision concerns the approval of a plan of arrangement under section 192 of the Canada Business Corporations Act for Sherritt International Corporation and 16743714 Canada Inc. The plan involves the exchange and restructuring of certain debt obligations, including Senior Secured Notes and Junior Notes, to stabilize the company’s financial position.

The court reviews the statutory and fairness requirements for approval, considers objections, and ultimately finds the arrangement fair and reasonable, granting the final order.

This endorsement addresses motions related to a proposed recapitalization transaction of Xplore Inc. and 16029167 Canada Inc. via a plan of arrangement under the Canada Business Corporations Act (CBCA).

The applicants sought an Interim Order to facilitate a vote on the arrangement, while certain satellite providers (unsecured creditors) brought 'comeback motions' objecting to the preliminary interim order's stay of remedies and the proposed treatment of their contracts, including non-payment of full contractual rates and the use of a reverse vesting order.

The court granted the Interim Order, finding that the applicants met the statutory requirements and acted in good faith, and that the fairness of the arrangement, including the novel reverse vesting order, warranted a full fairness hearing.

The court upheld the stay, finding the non-disclosure by applicants not material and that the court has broad discretion to impose terms on critical suppliers, drawing analogies to CCAA provisions.

The satellite providers' requests for full contractual payments and security were denied, and their motion to lift the stay for a bankruptcy application was adjourned.

In a CCAA proceeding, the Applicants sought three orders: approval of a factoring portfolio purchase agreement, approval for distribution of proceeds from a property sale, and permission for a creditor to sell certain vehicles.

The court approved the distribution of Chehalis property proceeds to Roynat.

For the Regions vehicles, the court granted the order allowing Regions to take possession, setting a 30-day retrieval period and approving storage costs of $35/day.

The motion for approval of the JD Factors Purchase Agreement was adjourned to a later date, as Mitsubishi HC Capital Canada Inc. objected, claiming ownership of the receivables and requiring more time to prepare its position.

The applicant, CURO Group Holdings Corp., as Foreign Representative, sought a Third Recognition Order under section 49 of the Companies’ Creditors Arrangement Act (CCAA) to recognize and enforce several orders of the U.S. Bankruptcy Court.

These orders included the Combined Order approving the Debtors’ Joint Prepackaged Plan, the Estimation Order, and the Second Interim Cash Management Order.

The motion also sought termination of the Canadian Recognition Proceedings, discharge and release of the Information Officer, and approval of the Information Officer's reports and fees.

The relief sought was unopposed, and the court granted the Third Recognition Order, finding no public policy reason to deny recognition.

In a Companies' Creditors Arrangement Act (CCAA) proceeding, the applicants sought court approval for the sale of a real property, the Monitor's reports, a revised governance protocol, and a sale and investor solicitation process (SISP) for their logistics business.

The court approved the property sale, finding it met the Soundair Principles despite not being a court-supervised process.

The Monitor's reports and activities were also approved.

The proposed SISP was approved with a minor amendment requiring the Monitor to consult directly affected secured creditors.

The Revised Governance Protocol, which included default commission rates for vehicle sales and collections, was approved as an interim measure, balancing the need for cost recovery with creditor concerns, noting that financiers could negotiate alternative rates or withhold consent to sales.

This motion concerned an application by BBB Canada Ltd. for an extension of the Stay Period under the Companies’ Creditors Arrangement Act.

The court addressed a key issue regarding the transfer of approximately $6.1 million from BBB Canada to a U.S. concentration account, which contravened the Amended and Restated Initial Order requiring a minimum balance.

Despite the breach, which was attributed to miscommunication and lack of oversight, the court found no intention to contravene the order and that no creditor would be prejudiced due to a reimbursement agreement.

The court granted the extension of the Stay Period until May 22, 2024, emphasizing the applicant's good faith and due diligence, but also highlighting the importance of adherence to court orders and timely disclosure of breaches.

The Québec Plaintiff, Jean-François Bourassa, brought a motion seeking a CCAA Representation Order to represent Canadian Personal Injury Claimants in foreign recognition proceedings and related Chapter 11 proceedings, including the appointment of specific counsel and an order for their fees to be borne by the Canadian Debtors.

The motion was opposed by the Canadian Debtors and other stakeholders.

The court dismissed the motion, finding that the interests of the Canadian Personal Injury Claimants were already adequately represented by the Official Committee of Opioid Claimants (OCC) in the U.S. Chapter 11 cases, which had been recognized as the foreign main proceeding in Canada.

The court emphasized the principle of cooperation with the foreign court and noted the Québec Plaintiff's lack of timely objection to previous orders in both the U.S. and Canadian proceedings.

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 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.

The applicant, a second mortgagee, sought the appointment of a receiver and manager over the respondent's real property due to a matured and defaulted mortgage loan.

The respondent requested a further adjournment to complete refinancing, which was denied due to a non-binding commitment letter and the respondent's lack of diligence in retaining counsel and pursuing refinancing.

The court found the appointment of a receiver to be just and convenient, particularly as the security documents contractually permitted such an appointment upon default.

The court rejected the respondent's claim of bad faith by the applicant.