Marc Steven Wasserman

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.

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 Liquidator of Silicon Valley Bank Canada sought court approval of an asset purchase agreement with National Bank of Canada, as well as a sealing order over the unredacted agreement and a confidential comparative analysis.

The court applied the Soundair principles and found that the Liquidator made substantial efforts to canvass the market, the transaction was in the best interests of stakeholders, and the process was fair and efficacious.

The court also granted the sealing order, applying the Sherman Estate test, to protect the maximization of recovery in the event the transaction did not close.

PricewaterhouseCoopers Inc. (PwC), as the court-appointed Liquidator of Silicon Valley Bank (SVB) Canada, sought court approval for the sale of the Clearco Credit Facilities, a sealing order for confidential transaction documents, and approval of its activities, fees, and disbursements.

The court applied the Soundair Principles to evaluate the sale, finding that the Liquidator made sufficient efforts to obtain the best price and that the process was fair and efficacious.

The Clearco Transaction, which provided the highest value for the assets, was approved.

A sealing order was granted for the confidential appendices due to their commercial sensitivity and potential negative impact on the ongoing sales process and future recoveries, with an unusual extended duration.

The Liquidator's activities, fees, and disbursements were also approved as appropriate given the complexity of the matter.

Chalice Brands Ltd., a vertically integrated cannabis company, sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) due to an urgent liquidity crisis.

The court granted the Initial Order, extending the CCAA stay of proceedings to its non-filing US-based affiliates, which are integral to its operations, and approved a first-ranking Administration Charge.

This cross-border restructuring is coordinated with a planned Oregon receivership, as US federal law precludes bankruptcy protection for cannabis companies.

The decision emphasizes the integrated nature of the business and the necessity of the stay to preserve value and pursue a going-concern sale.

The Attorney General of Canada applied for a winding-up order for the Canadian business of Silicon Valley Bank (SVB) and the appointment of PricewaterhouseCoopers Inc. as liquidator, pursuant to the Bank Act and the Winding-Up and Restructuring Act.

SVB, a U.S. bank with a Canadian branch, became insolvent in the U.S., leading to its assets being transferred to a bridge bank.

The Superintendent of Financial Institutions had taken control of SVB's Canadian assets.

The court found it just and equitable to grant the winding-up order, noting SVB's insolvency and the need to protect Canadian creditors and stakeholders, as the U.S. bridge bank was not authorized to operate in Canada.

The order provides broad powers to the liquidator while ensuring court supervision and protection for stakeholders.

The Applicants, a group of retail energy providers under CCAA protection, brought a motion seeking approval of a going-concern sale transaction to be implemented through a reverse vesting order (RVO).

The business is highly regulated and depends on numerous non-transferable licenses across multiple jurisdictions.

The court found that the RVO was the only viable structure to preserve the going-concern value of the business and maintain necessary regulatory approvals.

Applying the Soundair principles and section 36(3) of the CCAA, the court approved the transaction and granted the RVO, along with an order granting the Monitor enhanced powers to implement the transaction.

The moving parties, representing U.S. class action claimants, sought leave to appeal a supervising judge's order in a CCAA proceeding.

The supervising judge had dismissed their motion seeking to be treated as unaffected creditors or to have an expedited adjudication of their claims prior to a creditor vote.

The Court of Appeal denied leave, finding that the proposed appeal was not prima facie meritorious and did not raise issues of significance to the insolvency practice.

The Court emphasized the high level of deference owed to a CCAA supervising judge's discretionary decisions balancing stakeholder interests.

In a CCAA proceeding, the court considered supplementary written submissions regarding the appropriateness of differential consideration offered to unsecured creditors in the proposed Plan.

The court accepted the applicants' submission that the fairness of the differential consideration, which involves providing shares to Term Loan Lenders and cash to General Unsecured Creditors, should be determined at the Sanction Hearing rather than at the Meetings Order stage, given the low threshold for a Meetings Order and the presence of conflicting expert reports.

The Applicants sought an Authorization Order and Meetings Order under the CCAA.

The primary issues in dispute concerned the voting rights and classification of Litigation Claimants, which included uncertified U.S. class actions, a certified Ontario class action, and Texas mass tort claims.

The court held that the Litigation Claimants are creditors entitled to vote, but restricted them to one vote per action to prevent them from overriding other stakeholders on numerosity grounds.

The court also ordered summary proceedings to value their claims rather than accepting the Applicants' proposal to value them at $1.

Finally, the court declined to place the Term Loan Lenders in a separate class from other unsecured creditors, finding sufficient commonality of legal interests.

In the context of CCAA proceedings, the applicants brought a motion to approve a Support Agreement, a Backstop Commitment Letter, and a Meetings Order.

The court approved the uncontested portions of the agreements and the Meetings Order.

The court also determined that there would be two classes of creditors for voting on the Plan: a Secured Creditor Class and an Unsecured Creditor Class, with the latter including Term Loan Lenders and various class action plaintiffs.

The court ordered expedited summary proceedings to value the class action claims and requested supplementary submissions on the differential consideration offered to unsecured creditors.

The Applicants, a group of Just Energy entities under CCAA protection, sought an order authorizing them, as foreign representative, to pursue claims under s. 36.1 of the CCAA (fraudulent preferences and transfers undervalue) in a U.S. Bankruptcy Court adversary proceeding against the Electricity Reliability Council of Texas (ERCOT) and the Texas Public Utilities Commission (PUCT).

ERCOT challenged the foreign representative's standing, arguing that only the Monitor had such standing under a strict reading of s. 36.1(2)(b) of the CCAA.

The court, emphasizing a broad and liberal interpretation of the CCAA and its interplay with the BIA, found that s. 36.1(1) allows for "modifications that the circumstances require." It ruled that allowing the foreign representative to pursue the claims, with the Monitor's support and supervision, was consistent with the CCAA's objectives of facilitating debtor restructuring and benefiting stakeholders.

The court granted the order, allowing the foreign representative to pursue the claims nunc pro tunc, with the Monitor assisting and supervising.

In the context of a complex CCAA restructuring, the applicants sought approval for several motions, including a second Key Employee Retention Plan (KERP), an extension of the stay of proceedings, an extension of the DIP financing facility, and two corporate transactions involving the wind-up of subsidiaries.

US class action plaintiffs opposed the KERP and DIP extension, arguing they would deplete the estate.

The court approved all requests, finding the KERP and DIP extension necessary to maximize creditor recovery and advance a restructuring plan.

The court also used its broad jurisdiction under s. 11 of the CCAA to approve a corporate dissolution that technically violated the solvency requirements of the CBCA, as the transaction benefited the estate and did not prejudice stakeholders.

The Receiver brought a motion for an order approving a proposed sale and investment solicitation process (SISP) and authorizing the disclosure of Borrower Information to Qualified Bidders.

The court found that the proposed SISP satisfied the test for approval, as it was fair, transparent, and optimized the chances of securing the best price.

The court also authorized the disclosure of Borrower Information, finding that the best interests of investors could be jeopardized without such disclosure, and noting that all borrower concerns had been resolved and confidentiality obligations would apply to bidders.

The motion was granted.

Just Energy Group Inc. and its affiliates sought an initial order for protection under the Companies' Creditors Arrangement Act (CCAA) due to a severe liquidity crisis.

This crisis stemmed from unprecedented and controversial price increases imposed by Texas regulators (ERCOT and PUCT) following an extreme winter storm.

The court granted a 10-day stay of proceedings, approved a $125 million debtor-in-possession (DIP) financing, stayed regulatory actions in Canada and the U.S., authorized charges for essential suppliers, and stayed set-off rights.

The court also approved administrative and directors and officers charges.

However, the request for third-quarter bonus payments was denied for the initial order, to be reconsidered at a later hearing.

This application, brought by Hollander Sleep Products, LLC as foreign representative for itself and other Chapter 11 Debtors (including Hollander Sleep Products Canada Limited), sought recognition of US Chapter 11 proceedings as foreign main proceedings under Part IV of the Companies’ Creditors Arrangement Act (CCAA).

The court granted the application, recognizing the Chapter 11 Cases as foreign main proceedings, imposing a stay of proceedings, recognizing certain First Day Orders, granting a DIP ABL Charge, appointing an Information Officer, and approving an Administration Charge.

A key aspect was the determination of Hollander Canada's Centre of Main Interests (COMI) as being in the United States, despite its Canadian registered office, due to its deep integration with the US parent's operations.

The court also approved a DIP ABL Charge with joint and several liability for Hollander Canada and a "creeping roll-up" provision, distinguishing the case from Payless Holdings Inc. LLC, (Re) by noting Hollander Canada's insolvency, the absence of material prejudice to Canadian creditors, and the inclusion of a quasi-marshalling construct.