Andrew J. Winton

In a landmark CCAA proceeding involving Hudson's Bay Company, the court declined to approve the assignment of 25 major retail department store leases across Canada to a new tenant, Ruby Liu Commercial Investment Corp., despite the transaction representing the highest bid and generating approximately $50 million in net proceeds for creditors.

The court found that the proposed assignee failed to meet the reasonableness standard under section 11.3(3) of the CCAA, particularly regarding its ability to perform the substantial and ongoing obligations under the leases.

The decision emphasizes that section 11.3 is an extraordinary power that must be exercised sparingly, and that the court must balance the interests of all stakeholders, including the contractual counterparties (landlords) who would be compelled into a long-term relationship with an untested and undercapitalized purchaser.

The court also rejected the applicants' arguments that certain lease provisions constituted ipso facto clauses violating the anti-deprivation rule and section 34 of the CCAA.

The applicants sought the winding up of two Ontario corporations (NewCo), which were equally owned by three holding companies engaged in real estate development.

The corporations were governed by a shareholder agreement requiring unanimous consent for fundamental changes and providing for dispute resolution through a Casting Voter.

The parties became deadlocked over multiple issues including the appointment of corporate counsel, the appointment of a Casting Voter, and various property development decisions.

The court found that the parties' rights, expectations, and obligations to work cooperatively had not been fulfilled, that the dispute resolution process was inoperable, and that the relationship had broken down irreparably.

The court ordered the winding up of the corporations, appointed a Sales Officer and corporate counsel, and awarded costs to the applicants.

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.

This decision concerns the continuation of refusals motions in complex insurance litigation involving environmental claims at 26 mining sites operated by Vale Canada Limited.

The court addresses the proportionality and sufficiency of discovery efforts, the organization and resolution of thousands of discovery refusals, and sets out directions for further production and inquiry.

The ruling emphasizes the need for balance and proportionality in discovery, especially in large-scale litigation, and provides a framework for resolving outstanding discovery disputes ahead of trial.

The court considered a motion for summary judgment by Jonathan Rosenthal, in his personal capacity, seeking dismissal of the oppression claim brought against him by Paragon Protection Ltd. and Rosencrantz & Guildenstern Inc. The central issue was whether the plaintiffs were proper "complainants" under section 245 of the Ontario Business Corporations Act and thus had standing to advance an oppression remedy claim.

The court found that the plaintiffs, not being current or former security holders or creditors of Tamstu-Harjon Holdings of Canada Limited, could not qualify as proper complainants based solely on their status as potential creditors arising from the litigation itself.

The motion for summary judgment was granted, dismissing the claim against Mr. Rosenthal personally.

The decision addresses motions regarding the appointment of representative counsel for current and former employees and retirees of Hudson’s Bay Company ULC and related entities in ongoing Companies’ Creditors Arrangement Act (CCAA) proceedings.

The Court declined to appoint any of the nominated law firms as representative counsel at this stage, instead appointing the Honourable Herman Wilton-Siegel as an independent third party to evaluate proposals and make a recommendation.

The Court also approved amendments to the Sale and Investment Solicitation Process (SISP) to remove the company’s art and artifact collection from the SISP and to appoint Heffel Gallery Limited to conduct a separate auction for the collection, subject to further court approval of procedures.

The reasons review the legal framework for appointing representative counsel and the importance of balancing stakeholder interests in complex insolvency proceedings.

This endorsement grants a brief adjournment in the Companies’ Creditors Arrangement Act (CCAA) proceedings involving Hudson’s Bay Company ULC and related entities, following ongoing discussions between the applicants and stakeholders.

The court extends the stay of proceedings, increases the Directors’ Charge, amends the relative priorities of charges, and approves the engagement of Reflect Advisors, LLC as financial advisor.

The court finds the requested relief appropriate, unopposed, and supported by the Monitor, and orders the requested amendments to the Initial Order.

This costs endorsement follows the dismissal of appeals by the Attorney General of Ontario, His Majesty the King in Right of Ontario, the Town of South Bruce Peninsula, Alberta Lemon, and the Estate of Barbara Twining, and the allowance of the cross-appeal by the Attorney General of Canada and His Majesty the King in Right of Canada.

The Court orders the Town and the Families to pay costs to the Chippewas of Saugeen First Nation and the Town to pay costs to Canada, finding the amounts sought reasonable in light of the complexity and significance of the appeal.

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.

The court considered whether to dismiss the Schembri Action and strike Schembri’s defence in the Way Action due to Schembri’s repeated, prolonged, and intentional failure to comply with documentary disclosure obligations, including undertakings and multiple court orders.

The court found Schembri’s conduct deliberate and unjustified, resulting in significant delay and prejudice.

Applying the principles from Falcon Lumber and related appellate authorities, the court held that the exceptional remedy of dismissal and striking pleadings was proportionate and necessary to uphold the integrity of the justice system.

This endorsement grants, with one exception, the relief sought by the Receiver in the receivership of Antibe Therapeutics Inc., including approval of a sale transaction with Taro Pharmaceuticals Inc. via a reverse vesting order.

The court finds the transaction and process fair, maximizes value for stakeholders, and preserves key tax and intellectual property attributes.

The only relief not granted is the proposed interim distribution to unsecured creditors, as the court is not satisfied that sufficient information exists regarding unresolved claims and holdbacks.

The court provides guidance for a future motion once these issues are resolved.

The Court of Appeal for Ontario heard a motion to quash a motion for leave to appeal from a Superior Court decision.

The Superior Court had dismissed an application to review an arbitrator's jurisdiction decision, finding the responding parties had waived their right to object.

The Court of Appeal determined it lacked jurisdiction to hear an appeal from the application judge's order, citing s. 17(9) of the Arbitration Act, 1991, which explicitly states there is no appeal from a court's decision on a preliminary question of an arbitrator's jurisdiction.

The court found the arbitrator's jurisdiction ruling was indeed a preliminary question, despite its timing.

Consequently, the motion for leave to appeal was quashed, and costs were awarded to the moving parties.

Cortland Credit Lending Corporation sought a declaration that Final Bell Holdings International Ltd.'s constructive trust claim against the Applicants (BZAM Ltd. et al.) was subordinate to Cortland's super priority security interest and corresponding DIP Lender's Charge in a Companies' Creditors Arrangement Act (CCAA) proceeding.

Final Bell opposed, arguing for the need to prove its fraudulent misrepresentation claim.

The court granted Cortland's motion, finding Final Bell's constructive trust claim to be an impermissible collateral attack on the court's Amended and Restated Initial Order (ARIO) and an equity claim under the CCAA, which ranks behind all ordinary creditors.

The court emphasized the importance of respecting CCAA orders and the "building block" nature of restructuring proceedings.

The Kriesers appealed a trial judgment that dismissed their claims for construction deficiencies and breach of fiduciary duty, and granted judgment to the respondents for outstanding invoices.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's determination that the Kriesers breached the contract by withholding payments, which disentitled them to warranty claims, and that there was insufficient evidence for the remaining deficiency claims.

The court also upheld the finding that no fiduciary relationship existed between the parties, and affirmed the trial judge's cost award.

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.

In a Companies’ Creditors Arrangement Act (CCAA) proceeding, the DIP Lender, Cortland Credit Lending Corporation, sought a case management order to schedule a threshold motion.

The motion aimed to determine the legal priority of Cortland's claims over those of Final Bell Corp., which had amended its claim to seek a constructive trust that could prime the DIP charge.

The CCAA Applicants supported the motion, arguing it would avoid further delays to the Stalking Horse Purchase Agreement approval.

Final Bell Corp. opposed, viewing it as an unfair mid-trial motion for partial summary judgment.

The court, exercising its broad discretion as the supervising CCAA court, granted the motion, directing that the threshold issue of legal priority be determined first to minimize costs and maximize efficiency, finding no prejudice to Final Bell Corp.

The applicants sought a determination that the arbitrator erred in finding jurisdiction over certain relief claimed by the respondents in an ongoing arbitration.

The court found that the applicants had waived their right to object to the arbitrator's jurisdiction through their conduct, including filing a counterclaim and issuing their own notice of demand for arbitration invoking the arbitrator's jurisdiction.

The court dismissed the application, emphasizing that allowing a last-minute jurisdictional challenge after significant participation would undermine the efficiency and benefits of arbitration.

BZAM Ltd. and Cortland Credit Lending Corporation brought a motion for security for costs against Final Bell Holdings International Ltd. within an ongoing CCAA proceeding.

Final Bell had initiated a claim alleging fraudulent misrepresentation against BZAM and seeking damages and equitable relief, including a constructive trust.

The court determined that Rule 56.01 of the Rules of Civil Procedure, concerning security for costs, applies to claims within CCAA proceedings, and that Cortland, as a directly affected stakeholder, was entitled to seek such security.

Finding that Final Bell was ordinarily resident outside Ontario and had insufficient assets to satisfy a costs award, the court ordered Final Bell to post security for costs in favour of BZAM ($350,000) and Cortland ($147,000).

Additionally, Final Bell was ordered to pay the costs of the motion to BZAM ($20,000) and Cortland ($8,500).

The Chippewas of Saugeen First Nation, having been entirely successful in the liability phase of a bifurcated proceeding concerning the status of the "Disputed Beach" as reserve land, sought costs.

This endorsement addresses the costs awards and apportionment among the multiple defendants.

The court awarded Saugeen their costs on a partial indemnity scale, totaling $3,221,802.54, on a joint and several liability basis.

These costs were apportioned for indemnification purposes among Canada (10%), Ontario (40%), and the Town of South Bruce Peninsula (50%).

Additionally, the court granted Canada a Sanderson order, requiring the Town to pay Canada $470,000 in partial indemnity costs, recognizing Canada's success on the essential issue of the reserve boundary location.

The Town's claim for costs against Canada was dismissed.