Steven Graff

The moving party sought an order appointing Representative Counsel and a Non-Union Employee Representative for non-unionized employees terminated by the debtor following its Notice of Intention to Make a Proposal under the BIA.

The motion was unopposed and supported by the debtor and the Proposal Trustee.

Applying the CanWest factors, the court found the non-union employees to be a vulnerable group requiring representation to advance their claims.

The court granted the order, finding it would benefit all stakeholders by streamlining the claims process and avoiding a multiplicity of legal retainers.

In a CCAA proceeding involving a condominium project, the debtor sought to disclaim pre-sale agreements with unit purchasers.

The purchasers brought a motion for the production of an unredacted appraisal report referenced in the debtor's affidavit.

The court held that while the mandatory production requirement under Rule 30.04(2) is subject to discretion in CCAA proceedings, fairness and transparency required production of the unredacted report to the purchasers, subject to a non-disclosure agreement.

Cross-motions by a contingent creditor and real estate brokers for production of the reports were dismissed due to their lesser need and potential conflicts of interest.

The moving parties, a company and its CEO, commenced a private prosecution against a court-appointed receiver under the Environmental Protection Act, alleging the receiver stored excess organic waste.

The receiver brought a motion to stay the prosecution, arguing the moving parties failed to obtain leave of the court as required by the receivership order and that the prosecution was an abuse of process.

The Superior Court of Justice held that a private prosecution is a 'proceeding' requiring leave under the receivership order.

The court refused to grant leave and stayed the prosecution, finding it was an abuse of process because the moving parties were attempting to relitigate the exact same allegations that had previously been dismissed by the Superior Court and the Court of Appeal in a prior motion for leave to sue the receiver.

A non-party to an application sought to transfer the proceeding and a related garnishment hearing from Kitchener to Toronto under Rule 13.1.02.

The court dismissed the motion, finding that the moving party was not a party to the application, the application had already been finally disposed of, and a garnishment hearing is a motion rather than a 'proceeding' subject to transfer under Rule 13.1.02.

In a receivership arising from CCAA proceedings, the moving party sought payment of post-filing collections on several assigned loans and the return of funds advanced for a failed loan transaction.

The court held the assigned loans had been absolutely and equitably assigned, and that the debtor acted only as collection agent.

Applying the constructive trust framework in Soulos, the court found the stay should preserve rather than reorder pre-filing proprietary rights, and that the post-CCAA collections could not be treated as estate property for general creditors.

The court also held the failed transaction advance was held for a specific purpose and remained subject to a trust obligation, with Quistclose trust principles supporting that result in the alternative.

The motion was granted, subject to a holdback for any amount owed by the moving party to a related entity.