Hollinger Inc. (Re), 2011 ONCA 765
CITATION: Hollinger Inc. (Re), 2011 ONCA 765
DATE: 20111205
DOCKET: M40692 (C53706)
COURT OF APPEAL FOR ONTARIO
Sharpe J.A. (In Chambers)
BETWEEN
In the Matter of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, As Amended
And in the Matter of a Proposed Plan of Compromise or Arrangement with Respect to Hollinger Inc., 4322525 Canada Inc. and Sugra Limited
Applicants (Respondents on Motion)
Counsel:
Earl A. Cherniak Q.C., and Jason Squire, for Conrad Black and Conrad Black Capital Corporation
Michael E. Barrack and Megan Keenberg, for Hollinger Inc.
Ronald Foerster, for Torys LLP
Matthew Fleming, for KPMG LLP
Matthew B. Lerner, for Ernst & Young Inc. (Monitor)
Sarah L.M. Weingarten, for Independent Directors
Heard: November 28, 2011
On appeal from the order of Justice Colin L. Campbell of the Superior Court of Justice dated February 5, 2011.
Reasons for Decision
Sharpe J.A.:
[1] Conrad Black and the Conrad Black Capital Corporation (collectively “Black”) move for a stay of proceedings relating to a sealing order granted in a Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”) proceeding pending determination of Black’s application to the Supreme Court of Canada for leave to appeal the order of this court upholding the validity of the sealing order.
[2] The underlying facts relating to the sealing order are fully set out in the reasons of this court in Re Hollinger Inc. 2011 ONCA 579, 107 O.R. (3d) 1, and need not be repeated here.
[3] Black’s stay motion is brought pursuant to the Supreme Court of Canada Act, R.S.C., 1985, c. S-26, s. 65.1 (1):
The Court, the court appealed from or a judge of either of those courts may, on the request of the party who has served and filed a notice of application for leave to appeal, order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought, on the terms deemed appropriate.
[4] I dismiss Black’s request for a stay for the following reasons.
[5] This is not a typical request for a stay to suspend the operation of a judgment of this court or to suspend the operation of the order we upheld. Rather, Black is asking for an order pending the approval of the settlements which gave rise to the sealing order being made in the CCAA proceedings.
[6] There is some question as to whether s. 65.1(1) gives me jurisdiction to grant that relief, as I am not being asked to stay proceedings “with respect to the judgment from which leave to appeal is being sought”. If a judge of this court lacks jurisdiction to grant a stay, it still would, of course, be open to the CCAA judge to suspend process, as that would not interfere in any way with the effect of this court’s judgment.
[7] Even if I were to accept Black’s submission and interpret s. 65.1(1) generously so as to clothe me with necessary authority, out of deference to the CCAA judge, I would exercise my discretion to refuse the a stay. The CCAA judge is, in my view, much better placed to assess whether the interests of the parties and the interests would be served by granting Black’s request.
[8] As the matter was fully argued before me, I add that in any event, it is my view that Black has failed to satisfy the test for a stay.
[9] I think it unlikely that the Supreme Court of Canada will grant Black leave to appeal this court’s judgment. However, given the wide range of factors that are weighed by the Supreme Court in dealing with leave applications, I am not prepared to say that the leave application is frivolous and vexatious.
[10] I am not persuaded, however, that Black has demonstrated that refusing the stay and allowing the settlement approval process to proceed would cause him irreparable harm. As noted at para. 14 of our sealing order decision, Black concedes that his attack on the sealing order rests solely on his desire to uphold the open court principle. He does not assert that the terms of the sealing order give rise to any procedural disadvantage to him in the settlement approval process, nor does he allege any other harm resulting from the sealing order. The only interest Black asserts is what Mr. Cherniak describes a substantive right to challenge the sealing order as a violation of the open court principle.
[11] I am not persuaded that a stay of the approval process is required to protect that right. If no stay is granted and the settlement is approved, the redacted portions of the settlement agreements will be made public. Although that would render the proposed appeal moot, the substance of the right claimed by Black would not be defeated as the redacted details of the settlement would still be made public. On the other hand, if the settlement is not approved, it would still be open to Black to argue before the Supreme Court of Canada that the sealing order never should have been made and that the redacted portions of the agreements should therefore be disclosed.
[12] Finally, it is my view that the balance of convenience does not favour a stay. Black’s professed concern for the open court principle must be weighed against the interest of all other parties in bringing the CCAA process to a timely conclusion. I have no hesitation in saying that I would give more weight to the latter.
[13] Accordingly, the motion for a stay is dismissed with costs to the respondent, Hollinger Inc., fixed in the agreed amount of $3,250 plus HST.
“Robert J. Sharpe J.A.”
RELEASED: December 5, 2011