Steven J. Weisz

A receiver appointed over Wynn Realty Corporation sought approval of a proposed distribution of recovered funds to the plaintiff and intervenors who initiated the receivership.

The insurance coverholder objected, asserting subrogated and assigned claims on behalf of the insurer for amounts paid to fraud victims under a mandatory consumer deposit insurance policy.

The court rejected both the subrogation claim and the assignment-based claim, finding that the common law prohibition against insurers suing their own insureds applies and cannot be circumvented through assignments.

However, the court determined that the proposed distribution improperly excluded other similarly situated consumers and directed that all known consumers be included in an equitable distribution.

This is a costs decision following the applicant's successful recovery of a loan in the principal amount of approximately $14 million plus accrued interest.

The applicant sought full indemnity costs of $125,890 based on a provision in the loan agreement, while the respondents argued for partial indemnity costs of $50,000.

The court found that the loan agreement provision was sufficiently clear to encompass enforcement costs and awarded substantial indemnity costs of $108,000 inclusive of fees, HST and disbursements.

The court considered whether to dismiss a bankruptcy application brought by Bioventus, LLC against Trindent Consulting Management International Inc. under section 43(7) of the Bankruptcy and Insolvency Act, in light of Trindent’s prior U.S. Chapter 7 bankruptcy.

The court found that Canadian law allows for concurrent insolvency proceedings and that the statutory remedies under the BIA are not property of the debtor’s estate.

The motion to dismiss was denied, and the bankruptcy application may proceed.

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 decision concerns the transition of the receivership of the "The One" development project at Yonge and Bloor in Toronto to Companies’ Creditors Arrangement Act (CCAA) proceedings.

The court granted a discharge order for the receiver, an initial CCAA order, and approved a transaction with Tridel Builders Inc. for project completion.

The court also denied an adjournment request from a late-appearing stakeholder, approved the appointment of a monitor and chief restructuring officer, and authorized various charges and reliefs to facilitate restructuring and maximize value for stakeholders.

The court granted judgment in favour of V2 Investment Holdings Inc. for a $12.9 million loan made to Sam Mizrahi and related corporate respondents, finding the debt liquidated and undisputed.

The respondents' arguments of bad faith and equitable set-off, based on alleged promises regarding mortgage registration and intercreditor agreements, were rejected as unsupported by the evidence.

The court found no binding agreement to amend the loan or enter a standstill, and no breach of the duty of honest performance.

Judgment was granted for the outstanding amount plus interest, with directions for further submissions on costs and interest calculations.

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 decision addresses three motions in the receivership of the Bridging Funds: (1) the Receiver’s motion for an interim distribution to unitholders, (2) approval of a settlement with the BlackRock Parties, and (3) the unitholders’ motion for a constructive trust.

The court approved the interim distribution but required a sufficient reserve for the disputed Cerieco claim until its final determination.

The BlackRock settlement was approved.

The constructive trust motion was deferred pending resolution of the Cerieco claim.

The decision provides detailed guidance on the treatment of creditor and unitholder claims in a complex receivership under the Securities Act.

This endorsement addresses three motions within a receivership proceeding.

Mizrahi Inc. (MI) sought extensive production of construction documents and an increased reserve, arguing relevance to its pending payment motion and a set-off claim.

The Receiver sought a Lien Claims Resolution Order to standardize the process for resolving lien claims.

Gamma Windows and Walls International Inc. (Gamma) sought an order for payment of invoices, contract termination, and a reference to quantify its lien.

The court largely dismissed MI's document production request, finding it sought information for a collateral purpose (assessing a personal guarantee) and that sufficient information was already available through the SISP Data Room, with a minor exception for general cost information.

The Lien Claims Resolution Order was granted as unopposed.

Gamma's motion was adjourned to allow for consensual discussions, with the court emphasizing that its claims should be resolved through the newly established Lien Claims Resolution process or heard concurrently with MI's payment motion for judicial economy.

The Court-appointed Receiver sought approval for three orders concerning a large condominium project in receivership: a Sale and Investment Solicitation Process (SISP) Approval Order, a Reconfiguration and Letters of Credit (LC) Order, and a Holdback Release Order.

The Reconfiguration and LC Order and Holdback Release Order were unopposed.

The SISP Approval Order was opposed by subordinate lenders (Coco Parties) primarily due to a $1.2 billion minimum bid threshold, which they argued would intentionally cause the SISP to fail.

The court approved all three orders, deferring to the Receiver's business judgment and the Senior Secured Lenders' position, noting the Coco Parties provided no evidence to support their objections and were contractually subordinated.

This endorsement concerns three tobacco companies (JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc.) operating under the Companies’ Creditors Arrangement Act (CCAA).

Each applicant sought an extension of their stay period until September 30, 2024, to continue formulating plans of arrangement.

Imperial also requested authorization to terminate a retirement plan and post security for a vaping product license.

RBH sought a procedural amendment for employee grievances.

The court, finding no opposition and satisfied with the applicants' good faith, diligence, and sufficient resources, granted all requested relief, noting significant progress in ongoing mediation.

The Receiver sought and obtained two orders: a Construction Continuance Order to approve the engagement of a new construction manager (SKYGRiD) and extend a stay of proceedings, and a Lien Regularization Order to establish a court-supervised process for construction lien claims.

The court found jurisdiction under the Bankruptcy and Insolvency Act and the Courts of Justice Act, concluding that the orders were necessary and appropriate to ensure the ongoing construction of "The One" project and to manage lien claims efficiently without prejudicing claimants' substantive rights.

Objections from the former developer (Mizrahi Parties) regarding their own pending motion for fees were acknowledged but did not prevent the approval of the Receiver's requested orders.

This endorsement concerns the Companies' Creditors Arrangement Act (CCAA) proceedings for JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted an unopposed motion to extend the stay period until March 29, 2024.

Recognizing the complexity and the four-and-a-half-year duration of negotiations, the court directed the three court-appointed Monitors, in conjunction with the court-appointed Mediator, to collaborate and develop comprehensive Plans of Compromise or Arrangement.

The objective is to finalize plans that are fair and reasonable to all applicants and creditors, moving from observable activity to meaningful action.

The SMA 2 Unitholders sought a declaration that substantive consolidation does not apply to Bridging SMA 2 LP and approval for a second interim distribution.

The Receiver and Unitholder Representative Counsel opposed, arguing the motion was premature as various distribution issues, including the full economic impact of consolidation, remained unresolved.

The court dismissed the motion, deferring to the Receiver's position that a determination on substantive consolidation and further distributions was premature given the incomplete factual record and outstanding distribution issues.

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.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

The moving party sought the production of files held by a non-party law firm.

The responding party objected to producing a subset of the files relating to his corporation, claiming they were irrelevant and subject to lawyer-client privilege.

The Master found that the responding party's review of the files was insufficiently thorough and that the files likely contained relevant, non-privileged documents.

The Master ordered the responding party to disclose all documents in the remaining files in a supplementary affidavit of documents, properly categorizing them into privileged and non-privileged schedules.

The Estate of Frank Calderone brought a motion seeking leave to amend its crossclaim against Joseph Calderone to introduce new allegations of fraud and fraudulent concealment related to a family business syndicate (CBS).

The court dismissed the motion, finding that the new claims were statute-barred under the Limitations Act, 2002, as the Estate failed to exercise reasonable diligence to discover the claims by December 2011.

The court also addressed ancillary requests, granting partial production of documents from PricewaterhouseCoopers LLP, adjourning the request for documents from McMillan LLP, granting leave to examine non-party David Young (a lawyer), and ruling on various refusals from Joseph Calderone's examination for discovery.

The action was assigned to case management.

The Ministry of the Environment appealed a CCAA judge's decision that environmental remediation orders issued against an insolvent company were subject to a stay of proceedings.

The insolvent company had abandoned a contaminated site after selling its other assets.

Applying the Supreme Court's decision in AbitibiBowater, the Court of Appeal found it was sufficiently certain that the Ministry would perform the remediation work itself, making the regulatory orders in substance a provable monetary claim in the insolvency.

The appeal was dismissed.