Lee Nicholson

This endorsement concerns a motion by Acerus Pharmaceuticals Corporation and its subsidiaries (the Applicants) under the Companies’ Creditors Arrangement Act (CCAA) for approval of a Subscription Agreement, a reverse vesting order (ARVO), releases for various parties, a sealing order, and an extension of the stay of proceedings.

The proposed transaction involves First Generation Capital (FGC), the majority shareholder and secured creditor, acquiring the Applicants' business via a credit bid and share transaction, with excluded assets and liabilities vested out to Residual Cos.

The court analyzed the necessity and fairness of the ARVO structure, the sales process, the benefit to creditors compared to bankruptcy, and the appropriateness of the releases, ultimately granting all requested relief.

The plaintiffs brought a motion for leave to appeal the order of Morgan J. dated February 24, 2023.

The Divisional Court dismissed the motion and ordered the plaintiffs to pay costs of $10,000 all-inclusive to the responding defendants.

This endorsement concerns the costs of an injunction motion where the plaintiffs' request to prohibit the defendant Dongab Co. Inc. from exercising its power of sale on two mortgages was denied.

Dongab and Network Sewer and Watermain Ltd., the successful defendants, sought costs on a full indemnity basis, or alternatively substantial or partial indemnity.

Despite mortgage documentation calling for full indemnity, the court exercised its discretion under section 131 of the Courts of Justice Act to award costs on a partial indemnity scale, finding the requested amounts extraordinarily high and exceeding the plaintiffs' reasonable expectations.

The plaintiffs were ordered to pay $163,000.00 in all-inclusive costs.

The Plaintiffs sought an interlocutory injunction to prevent the Defendant Dongab Co. Inc. from exercising its power of sale on two mortgages secured on the Plaintiffs' property.

The Plaintiffs argued that preconditions to repayment were not met and that the Notice of Sale had deficiencies, including improper service and incorrect interest calculation.

The court found no serious issue to be tried regarding the mortgages being due and payable, the amounts owing, or the validity of the Notice of Sale.

The court determined that the Plaintiffs' arguments were tactical attempts to delay payment.

The motion for injunctive relief was dismissed.

Harte Gold Corp. sought approval of a sale of its mining enterprise to a strategic purchaser via a reverse vesting order (RVO) under the CCAA.

The transaction involved the cancellation of existing shares, the issuance of new shares to the purchaser, and the vesting out of excluded assets and liabilities to newly formed entities.

The court found that it had jurisdiction under section 11 of the CCAA to grant an RVO and applied the section 36(3) factors to assess its appropriateness.

The court approved the transaction, finding it was the best outcome reasonably available, preserved necessary mining licenses and permits, and was overwhelmingly positive for creditors and stakeholders.

The court also granted an extension of the stay of proceedings and expanded the Monitor's powers.

The applicant sought an Amended and Restated Initial Order, approval for a sale and investment solicitation process, and an increase in DIP financing in its CCAA proceedings.

Due to the chronic problem of late filings on the Commercial List, the court adjourned the motion because the materials were filed late the evening before the hearing.

The court extended the stay and authorized a small increase in DIP borrowing to maintain the business until the adjourned date, warning counsel that late filings for scheduled matters will result in adjournments.

The appellant, an undischarged bankrupt, sought an extension of time to file a notice of appeal from a lower court order that declared his debts would survive bankruptcy and lifted a stay of proceedings.

The respondent opposed the extension, arguing there was no right to appeal without leave and that the appeal lacked merit.

The respondent also brought a cross-motion for security for costs.

The Court of Appeal granted the extension of time, finding that the appellant had a right to appeal under sections 193(c) and 193(a) of the Bankruptcy and Insolvency Act, and that the proposed appeal had arguable merit.

The court dismissed the respondent's cross-motion for security for costs, concluding that the "other good reason" test under Rule 61.06(1)(c) of the Rules of Civil Procedure was not met, given the appellant's impecuniosity and the arguable merit of the appeal.

The moving parties, a syndicate of six banks, sought to partially lift an automatic stay of a bankruptcy order pending appeal under s. 195 of the Bankruptcy and Insolvency Act.

The banks argued that the appellant was frustrating the bankruptcy process and might dissipate her assets.

The court found that the appellant's grounds of appeal were extremely weak and that maintaining the stay would prejudice the banks by preventing the trustee from identifying and preserving assets.

The court granted the motion, partially lifting the stay to allow the trustee to exercise specific powers under the BIA.

The Foreign Representative of Purdue Pharma L.P. and 23 other Chapter 11 Debtors sought recognition and enforcement of a U.S. Preliminary Injunction Order in Canada, and a stay of proceedings against certain related parties in Canada.

The motion aimed to pause extensive opioid-related litigation to facilitate a global settlement.

The Quebec Class Action Plaintiff, Riccardo Camarda, opposed the stay for a proposed class action against Canadian Purdue entities, arguing it was outside the U.S. proceedings' parameters.

The court granted the stay, emphasizing principles of comity and cooperation with foreign courts under the CCAA, finding the stay necessary for a global resolution and to prevent an uneven playing field among stakeholders.

The applicants, a group of Essar Steel Algoma entities, brought a motion under the Companies' Creditors Arrangement Act (CCAA) for approval of an Asset Purchase Agreement (APA) and related relief.

GIP and PortCo objected to certain aspects of the APA and the orders sought.

The court approved the APA and the Sale Transaction, finding it to be in the best interests of Algoma and its stakeholders.

The approval was granted without prejudice to the rights of GIP and PortCo to raise further objections regarding the Approval and Vesting Order at a later date.

Several other motions, including those by GIP, PortCo, and Garden River First Nations, were adjourned.

The court also ordered certain cross-examination transcripts and exhibits to be sealed based on the principles from the Sierra Club of Canada case.

The Applicants, under CCAA protection, brought a motion seeking an order to authorize and approve the Revised Fourth DIP Amendment.

The motion was opposed by the USW and GIP.

The court granted the motion, finding that the DIP solicitation process was competitive, robust, and fair, and that the Revised Fourth DIP Amendment was the best available proposal.

The amendment addressed previous concerns by providing a maturity date past the winter build period, a sufficient commitment amount, and minimal conditions on covenants.

The applicants in a CCAA proceeding sought an order extending the stay period to September 30, 2017, which was unopposed by the Monitor and other stakeholders.

The court granted the extension, finding that the circumstances made it appropriate and that the applicants acted in good faith and with due diligence.

Additionally, the court addressed the disclosure of DIP Loan and Term Loan participant information, approving the Monitor's proposed confidentiality arrangements as a first step, and directing the documentation to be filed under seal.

The Applicants, a group of Essar Steel Algoma entities, brought two motions in their CCAA proceedings: (i) for approval of a DIP extension agreement with existing DIP lenders, and (ii) for the appointment of a restructuring committee.

The DIP extension was opposed by various stakeholders including the USW, retirees, and GIP Primus, LP, who argued against the short term and potential leverage of the existing DIP lenders who were also Term Lenders.

The court dismissed the DIP extension motion, finding it would not enhance the prospects of a viable restructuring outcome, citing concerns about the alignment of interests between DIP and Term Lenders and the short-term nature of the proposed extension.

The motion for a restructuring committee was also dismissed, as the court found it would create unnecessary overlap with the existing Chief Restructuring Advisor and would not effectively address the core issues preventing restructuring, primarily labour negotiations.

Payless Holdings LLC, as foreign representative for itself and other Chapter 11 Debtors, applied for recognition of its U.S. Chapter 11 proceedings as foreign main proceedings under the CCAA in Canada.

The application also sought recognition of certain First Day Orders and a stay of proceedings.

The court granted the Initial Recognition Order, finding the U.S. proceedings to be foreign main proceedings based on the integrated operations and U.S. center of main interest for the Canadian entities.

Certain stay provisions were also granted, with remaining issues adjourned.

The applicants, a group of Essar Steel Algoma entities under CCAA protection, moved for court approval of a Term Sheet with Cliffs Mining Company for the supply of iron ore pellets.

The motion was opposed by USW Locals and Algoma retirees, who sought disclosure of commercial terms and objected to provisions preventing disclaimer of the agreement and allowing Cliffs to terminate if an Essar Global entity acquired Algoma.

The court approved the Term Sheet, finding it beneficial for Algoma's restructuring by ensuring a stable and technically suitable iron ore supply.

The court dismissed the objections, emphasizing the urgency of approval, the confidentiality of pricing, and that the Term Sheet's provisions did not unlawfully fetter judicial discretion under CCAA section 32 or unduly prejudice stakeholders.

Portco sought orders for immediate and future payments under a Cargo Handling Agreement, and a US$5 million charge on Algoma's assets, arguing the payments were required post-filing in a CCAA proceeding.

The CCAA Applicants (Algoma) and DIP lenders opposed, citing the DIP Agreement's budget approval requirement and an arguable right to equitable set-off against a promissory note owed by Portco's parent company (EGFL) to Algoma.

The court found that the DIP Agreement and Initial Order did not mandate payments without DIP lender approval and that an arguable case for equitable set-off existed.

The motion was dismissed as premature, pending determination of the set-off issue and other concerns raised by the Monitor regarding the Portco transaction and recapitalization.

The moving party, United Steelworkers Union Local 2251, sought a stay of a CCAA judge's order establishing a summary process with condensed timelines for the resolution of grievance-related claims, pending its motion for leave to appeal.

The union argued the process altered the collective agreement contrary to s. 33 of the CCAA and that it would suffer irreparable harm due to the workload and deadlines.

The Court of Appeal dismissed the motion, finding no serious question to be determined as leave to appeal was unlikely to be granted, no irreparable harm as avenues for assistance existed, and the balance of convenience favoured the applicants' restructuring efforts.

Following dismissal of a motion seeking production of documents in insolvency proceedings under the Companies’ Creditors Arrangement Act, the court determined the quantum of costs payable to the successful parties.

Applying the reasonableness principle and the factors in Rule 57.01 of the Rules of Civil Procedure, the court assessed costs claimed by the monitor, the creditors’ committee, and the applicants.

The court rejected arguments that certain participants should receive reduced or no costs and instead fixed reasonable amounts reflecting their participation in the motion.

Costs were awarded to each successful party and ordered payable within 30 days.

In the context of CCAA proceedings, the moving party sought an order requiring the Monitor to disclose all information and documents it considered when reviewing proofs of claim submitted by another creditor group.

The moving party intended to use this information at a claims hearing to argue that the claims officer should apply the same standard of proof used by the Monitor.

The court dismissed the motion, finding that the roles of the Monitor and the claims officer under the claims procedure order were fundamentally different, and the request constituted an impermissible collateral attack on that order.

Furthermore, the court noted that comparing claims would result in an unnecessary trial within a trial and risk disclosing confidential lending practices.

The applicant sought court sanction of a plan of compromise and arrangement under the Companies’ Creditors Arrangement Act to resolve extensive litigation arising from the audit of Castor Holdings Ltd. The plan involved contributions from partners, insurers, and related entities totaling approximately $220 million and included third‑party releases.

A creditor group opposed the sanction, arguing that the releases violated Quebec civil law and that the claims process was unfair.

The court rejected these objections, finding the expert evidence unreliable, confirming that federal insolvency law permits third‑party releases notwithstanding provincial law, and concluding the plan was fair and reasonable given overwhelming creditor approval.

The plan was sanctioned.