Peter J. Osborne

The applicant, Prospector PTE.

Ltd., sought recognition and enforcement of two foreign arbitral awards rendered by an International Chamber of Commerce tribunal in the United Kingdom against the respondent, CGX Energy Inc. CGX Energy Inc. opposed enforcement, arguing procedural unfairness because it was allegedly denied the opportunity to fully present its case regarding its counterclaim.

The court found that CGX Energy Inc. failed to meet the narrow test for procedural unfairness required to refuse enforcement under the International Commercial Arbitration Act, 2017, and the UNCITRAL Model Law.

The court also applied issue estoppel, noting that the same procedural unfairness argument had already been dismissed by the UK High Court.

The application for recognition and enforcement was granted.

IBM Canada sought rectification of its retirement plan due to drafting errors affecting 210 current and former employees.

IBM brought a motion for a representation order to appoint Dario Ceci and Jacinthe Ratelle as representative respondents for the affected members, based on a settlement agreement.

The Financial Services Regulatory Authority of Ontario (FSRA) did not oppose the motion or the underlying rectification.

The court granted the representation order, finding it necessary and desirable under Rule 10.01(1)(f), and confirmed the commonality of interest among pension plan members for class representation.

This case involves a Companies' Creditors Arrangement Act (CCAA) proceeding where the Applicants sought approval of a Sales and Investment Solicitation Process (SISP) including a stalking horse bid.

Green Acre Capital LP, a minority shareholder and creditor, opposed the SISP and brought a cross-motion to replace the previously approved Debtor-in-Possession (DIP) financing facility with an alternative one.

The court approved the SISP, finding it broad enough to explore various restructuring options beyond just a sale, and dismissed Green Acre's cross-motion, emphasizing the need to minimize instability by not replacing a recently approved DIP facility for minor financial benefits.

The Foreign Representative of Instant Brands Inc. and other Chapter 11 Debtors sought recognition and enforcement of an Interim DIP Order from the US Bankruptcy Court, along with approval of a corresponding priority charge in Canada under section 49 of the CCAA.

The motion was unopposed.

The court, applying principles of comity and cooperation in cross-border insolvency, recognized the Interim DIP Order and granted the priority charge, including the rollup of prepetition debt into post-petition super priority financing, finding it necessary for the debtors' ongoing operations and restructuring costs and that Canadian debtors were not materially prejudiced.

Nanopay Corporation, a startup providing embedded payment solutions, filed a Notice of Intention to Make a Proposal under the Bankruptcy and Insolvency Act (BIA).

The company moved for an extension of time to file a proposal, authority to borrow under a DIP (Debtor-in-Possession) credit facility, and approval to engage a Chief Restructuring Officer (CRO).

The court granted the motion, approving the DIP Term Sheet, appointing the CRO, and extending the proposal filing deadline to August 2, 2023, finding that the company acted in good faith and with due diligence, and no creditor would be materially prejudiced.

An interim limit was placed on initial DIP advances.

This application concerned Thomson Reuters Corporation's proposed plan of arrangement under section 182 of the Business Corporations Act (Ontario).

The arrangement involved a return of capital of approximately USD $2.2 billion to shareholders and a proportional share consolidation, with an opt-out right for certain non-Canadian resident shareholders for tax purposes.

The Board of Directors approved the transaction, deeming it in the Company's best interests for efficient capital distribution.

Shareholders overwhelmingly approved the arrangement resolution at a meeting with high participation.

The court applied the three-part test for approving arrangements, confirming that statutory procedures were met, the application was in good faith, and the arrangement was fair and reasonable, largely evidenced by the strong shareholder approval and unanimous director support.

The final approval order was granted.

The applicant, Instant Brands Inc., acting as foreign representative for itself and 14 other Chapter 11 debtors, sought recognition of US insolvency proceedings under the Companies’ Creditors Arrangement Act (CCAA).

The Ontario Superior Court granted the application, declaring the US proceedings as foreign main proceedings, recognizing Instant Brands Inc. as the foreign representative, imposing a stay of proceedings against the debtors, appointing Ernst & Young Inc. as Information Officer, and approving an Administration Charge and a Directors & Officers’ Charge.

The relief sought was unopposed.

Canopy Growth Corporation brought an unopposed motion under section 69.4 of the Bankruptcy and Insolvency Act to lift the stay of proceedings against 3 Sixty Secure Corp. and 3 Sixty Risk Solutions Ltd. The purpose was to pursue a claim related to a fire at Canopy's property, seeking recovery on a potential insurance contract.

The court granted the order, finding no prejudice to the company or other creditors, as any insurance proceeds would only be available to third parties like Canopy, not general creditors.

This endorsement addresses several requests to vary existing Mareva, Norwich, Anton Piller, and Certificate of Pending Litigation (CPL) orders.

The Gendelman Defendants sought funds for living and legal expenses, continued funding for real estate projects, the lifting of a CPL on a property for sale, directions on seized evidence, and the return of their passports.

The court granted limited interim funds for living and legal expenses, adjourned the CPL issue for further discussion, directed the establishment of a protocol for seized evidence, and ordered the return of the Gendelmans' passports, emphasizing the high threshold for infringing liberty by retaining passports.

The applicant, 1261271 B.C. Ltd., sought a declaration that its security interest in the assets of the respondents was valid and enforceable.

This security interest arose from a secured loan provided to satisfy existing unsecured loans.

The respondents argued the security was a collateral attack on a prior court order (the 'Gilmore Order') which had unwound a corporate reorganization, and that it constituted a fraudulent preference and fraudulent conveyance.

The court dismissed the application, finding the 2021 Security invalid as it amounted to a collateral attack on the Gilmore Order and was a fraudulent conveyance.

The court also noted that the security was invalid to the extent it purported to secure indebtedness of a non-FIT 2 entity (Enviro Park) to the 1784 Parties.

The court-appointed Receiver moved for approval of its Third Report, activities, and the fees and disbursements of the Receiver and its counsel.

The debtor opposed the approval of the fees, arguing they were unreasonable because the receivership was straightforward and the debtor had ultimately refinanced the property.

The court applied the Diemer factors and found the fees to be fair and reasonable, noting that the receiver's activities were necessary at the time they were undertaken pursuant to court orders.

The court approved the fees in the amount of $247,953.15 and awarded costs of the motion to the Receiver.

The plaintiff, acting as Trustee in Bankruptcy, brought a motion for leave to serve an originating process on a defendant located in the United States pursuant to Rule 17.03 of the Rules of Civil Procedure, and for an extension of time for service.

The action sought to recover funds transferred by the bankrupt to his wife as transfers at undervalue or preferences under the Bankruptcy and Insolvency Act.

The court found that the plaintiff established a good arguable case for a real and substantial connection between Ontario and the claim, as the bankrupt was an Ontario resident and the bankruptcy proceeding was in Ontario.

The court granted leave for service ex juris and extended the time for service, finding no prejudice to the defendant.

The court-appointed Receiver brought multiple motions seeking various forms of relief, including a declaration of vacant possession and writ of possession for a condominium unit (PH 07), approval and vesting orders (AVOs) for the sale of two specific condominium units (PH 02 and PH 03), prospective AVOs for five remaining units subject to sale conditions, approval of certain distributions from sale proceeds, approval of the Receiver's activities, and a sealing order for confidential appendices.

The applicant, KingSett Mortgage Corporation, and CIBC supported the relief.

The respondent, 30 Roe Investments Corp., represented by its president and personal guarantor, Raymond Zar, opposed some aspects, particularly the pre-approval of sales for remaining units without the debtor's consent and the immediate payment of HST.

The court granted most of the Receiver's requests, finding no lawful right for the occupant of PH 07, approving the sales under specific conditions, and approving distributions, with a temporary deferral on the HST payment issue to allow the respondent to provide supporting documentation.

The Receiver, KPMG Inc., sought court approval for an asset purchase agreement for a medical office building, authorization for distributions to secured creditors, approval of its activities, and its discharge.

The motion also included requests to seal and unseal confidential documents.

All relief sought was unopposed.

The court applied the Soundair Principles to approve the sale, authorized payment of real estate commissions, and approved the proposed distribution to the applicants, noting that the net sale proceeds were insufficient to satisfy secured obligations.

The court also addressed the issue of HST arrears and deemed trust claims, concluding no further action was needed due to the proposed bankruptcy and the "prescribed security interest" exception.

The Receiver's activities were approved, and a limited release was granted upon filing of a discharge certificate.

The applicant, Business Development Bank of Canada (BDC), sought the appointment of a receiver for the respondent, 170 Willowdale Investments Corp., due to the respondent's default on a loan.

The respondent's principal, Mr. Zar, repeatedly requested adjournments and made unsubstantiated allegations of bias against the court and counsel.

The court denied the adjournment requests and the recusal motions, finding that the respondent had ample opportunity to respond and that the allegations were unfounded.

The court determined that it was just and convenient to appoint a receiver, given the clear and continuing default, the lack of engagement from the debtor, and the contractual right to appoint a receiver.

The application for the appointment of The Fuller Landau Group Inc. as receiver was granted.

The Royal Bank of Canada (RBC) brought a motion for the appointment of a receiver over the assets of 1731861 Ontario Inc., operating as Plasticap, due to the company's default on credit facilities and failure to comply with reporting obligations.

The company had previously consented to a receivership order and judgment on personal guarantees, held in escrow, contingent on full repayment by a specified date.

Despite partial payments, the final balance of over $1.7 million remained unpaid.

The defendants sought an extension, citing a potential investment, but failed to provide any sworn affidavit evidence to support their claims or demonstrate a reasonable certainty of repayment.

The court found it just and convenient to appoint a receiver, emphasizing the defendants' lack of evidence, their prior consents to the receivership and judgment, and the breach of the agreed-upon terms for adjournment.

DCL Corporation, an insolvent company under CCAA protection, sought court approval for a stalking horse agreement, bidding procedures for the sale of substantially all its assets, and a sealing order for confidential information.

The motion was unopposed and supported by the Monitor and key creditors.

The court granted the relief, finding the proposed sales process fair, transparent, commercially efficacious, and designed to optimize asset recovery, consistent with established insolvency principles.

The sealing order was also granted, applying the Sherman Estate test, on the basis that it protected important public interests in confidentiality and contractual sanctity.

The Monitor in the Companies' Creditors Arrangement Act (CCAA) proceedings of DCL Corporation brought a motion seeking expanded powers for an orderly wind-down of the Applicant, declarations regarding the Canadian Designated Amount Portion and CCAA Cash Pool, and a declaration that former employees are eligible for Wage Earner Protection Program (WEPP) payments.

The court granted all requested relief, finding the expanded powers necessary due to the absence of company management and consistent with similar cases.

The court also declared former employees eligible for WEPP payments, satisfying the criteria under the WEPP Act and Regulations.

LTL Management LLC, an indirect subsidiary of Johnson & Johnson, sought recognition of its second US Chapter 11 bankruptcy proceeding as a foreign main proceeding under the Companies’ Creditors Arrangement Act (CCAA) in Canada.

This application followed the dismissal of its initial Chapter 11 filing due to insufficient immediate financial distress.

The new Chapter 11 was based on a negotiated Plan Support Agreement establishing an $8.9 billion trust for talc-related claims.

The Ontario Superior Court of Justice granted the recognition order, along with ancillary relief including a stay of proceedings against LTL and related Canadian co-defendants, and the appointment of Ernst & Young Inc. as Information Officer.

The court found the US proceeding to be a foreign main proceeding, with LTL's Centre of Main Interests (COMI) in the United States, and that the relief was appropriate to coordinate proceedings and ensure equal treatment of talc-related claims.

The application was unopposed.

The defendant (plaintiff by counterclaim) brought a motion under Rule 30.06 of the Rules of Civil Procedure to compel the plaintiffs to produce documents related to the top five contracts by bid price for each year between 2006 and 2016.

These documents were sought to compare the bidding, accounting, and results of the "Porsche Agreement" with the "ordinary course of business" and "past practice" of the acquired company, which was central to the plaintiffs' fraud allegations concerning a share purchase agreement.

The court granted the motion for the production of the remaining categories of documents, finding them relevant and proportionate to the issues of "ordinary course" and "past practice."