Susan M. Ursel

In CCAA proceedings involving a major Canadian retailer in insolvency, Employee Representative Counsel brought a motion to approve a Hardship Programs Term Sheet providing three programs to alleviate hardships for vulnerable non-unionized former employees: a Trust Program extending and settling long-term disability benefits for approximately 157 former employees funded through a pre-existing trust, a Woodwards Replacement Policy funded through a company reserve fund, and an Employee Hardship Program funded by $250,000 in foregone secured lender payments.

The court approved the Term Sheet as fair, reasonable, beneficial to stakeholders, and consistent with the purpose and spirit of the CCAA.

Ancillary relief including releases, declaratory relief characterizing Employee Hardship Fund payments as non-earnings for EI purposes, and a sealing order protecting personal information of LTD recipients and trustees were also granted.

An unsupported objection by one individual was dismissed as lacking credible basis.

The Monitor in a liquidating CCAA proceeding sought approval of its fees, a distribution to unsecured creditors, an extension of the stay of proceedings, and an order exempting it from tax and withholding obligations under various federal and provincial statutes.

The court approved the fees, distribution, and stay extension.

However, the court declined to grant the tax exemptions, finding no basis in law or evidence to declare that the Monitor is not a 'representative' or is not 'distributing' funds under the tax statutes, especially without notice to the relevant taxation authorities.

In a Companies' Creditors Arrangement Act proceeding, the applicant Hudson's Bay Company ULC and related entities sought approval of an Art Collection Auction Process Order to authorize the auction of artwork and artifacts held by the company.

The court approved the proposed auction procedures, which included both live and online auction components.

The court noted that certain items were excluded from the auction, including the Royal Charter, artifacts previously donated to the Manitoba Museum, the company's reference collection donated to the Archives of Manitoba, and war memorials.

Additionally, 24 artifacts believed to be of Indigenous origin or representative of Indigenous culture were excluded from the auction and would be donated to appropriate custodians in consultation with Indigenous communities.

The court found that the proposed procedures satisfied the applicable legal tests and represented the most appropriate process for disposing of the art collection while balancing the interests of creditors with cultural and historical considerations.

The Court-appointed Monitor sought approval of a Surplus Sharing Agreement between DCL Corporation and Representative Counsel regarding the allocation of surplus funds in the Applicant's Salaried and Hourly Defined Benefit Pension Plans.

The Monitor also sought a declaration that the Applicant is entitled to the surplus under section 79(3)(b) of the Pension Benefits Act and an extension of the stay of proceedings to January 31, 2026.

The relief was unopposed and strongly supported by Representative Counsel.

The court approved the settlement, finding it fair and reasonable, and granted the requested stay extension.

This endorsement grants an unopposed application by RioCan Real Estate Investment Trust and related entities for the appointment of FTI Consulting Canada Inc. as receiver over the assets of the RioCan-HBC joint venture entities.

The court reviews the legal test for appointing a receiver under the Bankruptcy and Insolvency Act and the Courts of Justice Act, referencing relevant case law and statutory factors.

The receivership is found to be just and convenient in light of the joint venture’s financial distress, the failure of restructuring efforts, and the need to preserve and maximize value for stakeholders.

The order authorizes the receiver to borrow up to $20 million and provides for allocation of costs and a mechanism for secured lenders to terminate the receivership as to their collateral.

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.

The appellant sought to uphold a provincial spending limit restricting third party political advertising to $600,000 in the year before a fixed-date election, while political parties faced no limits in the first six months of that period.

The majority held that the spending limit infringes s. 3 of the Charter by creating an absolute disproportionality in the political discourse, allowing political parties to drown out third party voices during a critical democratic period.

The majority further held the limit could not be saved under s. 1 as it failed the minimal impairment stage.

Two sets of dissenting judges would have allowed the appeal, finding the limit did not infringe s. 3 of the Charter on the evidentiary record, with the dissenters disagreeing on whether an expressive component exists within s. 3.

The applicant union challenged a Review Officer's order establishing pay equity plans for two bargaining units.

The union argued that the Review Officer's use of a banding structure to determine male comparators was unreasonable, that the retroactivity date of December 18, 2018 was arbitrary, and that the Review Officer exceeded her jurisdiction by declaring the parties' Terms of Reference spent.

The Pay Equity Hearings Tribunal found that the banding structure was a reasonable method for determining comparability and confirmed the male comparators.

The Tribunal also agreed that the Terms of Reference were spent.

However, the Tribunal found the retroactivity date of December 18, 2018 to be unreasonable, as the wage gap existed prior to that date.

The Tribunal varied the order to set the retroactivity date to September 1, 2007, when the job analysis questionnaires for the male comparators were finalized.

The Ontario government appealed a decision finding that the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which imposed a 1% cap on compensation increases for broader public sector employees, violated the right to freedom of association under s. 2(d) of the Charter.

The Court of Appeal upheld the application judge's finding that the Act substantially interfered with the respondents' collective bargaining rights and was not saved by s. 1 of the Charter, as it was not minimally impairing and its deleterious effects outweighed its salutary effects.

However, the Court allowed the appeal in part to limit the declaration of invalidity to represented employees, as non-represented employees do not benefit from the same collective bargaining protections.

PricewaterhouseCoopers (PwC), as the court-appointed Liquidator for the winding-up of Silicon Valley Bank's Canadian business, brought a motion seeking approval for a Claims Procedure, the appointment of Employee Representative Counsel, and authorization for interim distributions to the United States Federal Deposit Insurance Corporation (FDIC).

The motion was unopposed and supported by the FDIC and proposed Employee Representative Counsel.

The court approved all requested relief, finding the proposed procedures fair, efficient, and appropriate for the Winding-up and Restructuring Act (WURA) proceedings.

The Member, a teacher, attended school on Halloween wearing blackface as part of a zombie costume.

The Member admitted to professional misconduct, acknowledging that his actions were offensive, racist, and caused significant upset to the school community, despite his lack of intent to cause harm.

The Discipline Committee accepted an agreed statement of facts and a joint submission on penalty.

The Member was reprimanded, his teaching certificate was suspended for one month, and he was ordered to complete a course on cultural sensitivity.

The applicant union sought review of a Review Officer's Order preparing a pay equity plan, arguing as a preliminary issue that the Review Officer's discretion was fettered by previous Tribunal decisions and that the doctrine of issue estoppel applied.

The Tribunal held that its previous decisions directing the Review Officer to prepare the plan did not fetter her discretion or bind her to agreements previously reached by the parties.

The preliminary objection was dismissed, and the matter was directed to proceed to a hearing on the merits of whether the plan complied with the Pay Equity Act.

The Ontario College of Teachers brought a discipline proceeding against the member for professional misconduct.

The parties submitted an Agreed Statement of Facts and Guilty Plea, along with a Joint Submission on Penalty.

The Discipline Committee found the member guilty of professional misconduct and ordered a reprimand, a one-month suspension of the member's Certificate of Qualification and Registration, and the successful completion of a cultural sensitivity training course.

The Court of Appeal for Ontario issued supplementary reasons regarding the remedy and costs following its prior decision (2023 ONCA 139) which declared s. 37.10.1(2) of the Election Finances Act unconstitutional.

The appellants sought to invalidate additional provisions, including the definition of "political advertising" s. 37.0.1, s. 37.10.1(3)-(3.1), and s. 37.10.2.

The court declined this request, finding these provisions were not inextricably linked to the previously invalidated section and were not independently shown to infringe section 3 of the Canadian Charter of Rights and Freedoms.

The court also noted that the election period spending limits (s. 37.10.1(1)) were not challenged and remain in force.

No disposition was made as to costs, as the parties had reached an agreement.

The Applicants, Nordstrom Canada Retail, Inc. and related entities, sought an Amended and Restated Initial Order (AIRO) under the Companies’ Creditors Arrangement Act (CCAA).

The motion, unopposed and supported by the Monitor, requested an extension of the stay period, approval of a Key Employee Retention Plan (KERP) and its associated charge, and increases to the Administration and Directors' Charges.

The court granted the AIRO, finding the stay extension appropriate given the applicants' good faith and diligence in pursuing an orderly wind-down, the KERP reasonable and necessary for restructuring, and the charge increases modest and well-supported.

This appeal concerned the constitutional validity of Ontario's third-party election spending limits, specifically the extension of the pre-writ restricted period from 6 to 12 months without increasing the spending cap.

The appellants argued this infringed the informational component of the right to vote under s. 3 of the Charter, which is not subject to the notwithstanding clause (s. 33).

The Court of Appeal found that while s. 33 was properly invoked, the extended spending restrictions were not "carefully tailored" and did not permit a "modest informational campaign" thereby infringing the s. 3 right to meaningful participation in the electoral process.

The infringement was not justified under s. 1 of the Charter.

The court declared the impugned provision invalid and suspended the declaration for 12 months.

The applicants, Nordstrom Canada Retail, Inc., Nordstrom Canada Holdings Inc., LLC, and Nordstrom Canada Holdings II, LLC, sought an initial order under the Companies’ Creditors Arrangement Act (CCAA) for a stay of proceedings to facilitate an orderly wind-down of their Canadian operations.

Nordstrom Canada, a subsidiary of Nordstrom US, had incurred significant losses and Nordstrom US had ceased financial support.

The court granted the requested relief, including a 10-day stay of proceedings, extension of the stay to Nordstrom Canada Leasing LP and, for limited purposes, to Nordstrom US (Parent Stay), approval of an Employee Trust funded by Nordstrom US, appointment of Employee Representative Counsel, and authorization for certain pre-filing payments to critical suppliers.

The court also approved Administration and Directors' and Officers' charges.