SUPERIOR COURT OF JUSTICE – ONTARIO
COMMERCIAL LIST
RE: IN THE MATTER OF a Plan of Compromise or Arrangement of First Leaside Wealth Management Inc., First Leaside Finance Inc., First Leaside Securities Inc., FL Securities Inc., First Leaside Management Inc., First Leaside Accounting and Tax Services Inc., First Leaside Holdings Inc., 2086056 Ontario Inc., First Leaside Realty Inc., First Leaside Capital Inc., First Leaside Realty II Inc., First Leaside Investments Inc., 965010 Ontario Inc., 1045517 Ontario Inc., 1024919 Ontario Inc., 1031628 Ontario Inc., 1056971 Ontario Inc., 1376095 Ontario Inc., 1437290 Ontario Ltd., 1244428 Ontario Ltd., PrestonOne Development (Canada) Inc., PrestonTwo Development (Canada) Inc., PrestonThree Development (Canada) Inc., PrestonFour Development (Canada) Inc., 2088543 Ontario Inc., 2088544 Ontario Inc., 2088545 Ontario Inc., 1331607 Ontario Inc., Queenston Manor General Partner Inc., 1408927 Ontario Ltd., 2107738 Ontario Inc., 1418361 Ontario Ltd., 2128054 Ontario Inc., 2069212 Ontario Inc., 1132413 Ontario Inc., 2067171 Ontario Inc., 2085306 Ontario Inc., 2059035 Ontario Inc., 2086218 Ontario Inc., 2085438 Ontario Inc., First Leaside Visions Management Inc., 1049015 Ontario Inc., 1049016 Ontario Inc., 2007804 Ontario Inc., 2019418 Ontario Inc., FL Research Management Inc., 970877 Ontario Inc., 1031628 Ontario Inc., 1045516 Ontario Inc., 2004516 Ontario Inc., 2192341 Ontario Inc., and First Leaside Fund Management Inc., Applicants
BEFORE: D. M. Brown J.
COUNSEL: J. Birch and D. Ward, for the Applicants
P. Huff and C. Burr, for the proposed Monitor, Grant Thornton Limited
D. Bish, for the Independent Directors
B. Empey, for Investment Industry Regulatory Organization of Canada
J. Grout, for the Ontario Securities Commission
R. Oliver, for Kenaidan Contracting Limited
J. Dietrich, the proposed Representative Counsel for the investors
E. Garbe, for Structform International Limited
N. Richter, for Gilbert Steel Limited
M. Sanford, for Janick Electrick Limited
M. Konyukhova, for Midland Loan Services Inc.
C. Prophet, for the Canadian Imperial Bank of Commerce
HEARD: February 23, 2012
REASONS FOR DECISION
I. Overview: CCAA Initial Order
[1] On Thursday, February 23, 2012, I granted an Initial Order under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, in respect of the Applicants. These are my Reasons for that decision.
II. The applicant corporations
[2] The Applicants are members of the First Leaside group of companies. They are described in detail in the affidavit of Gregory MacLeod, the Chief Restructuring Officer of First Leaside Wealth Management (“FLWM”), so I intend only refer in these Reasons to the key entities in the group. The parent corporation, FLWM, owns several subsidiaries, including the applicant, First Leaside Securities Inc. (“FLSI”). According to Mr. MacLeod, the Group’s operations centre on FLWM and FLSI.
[3] FLSI is an Ontario investment dealer that manages clients’ investment portfolios which, broadly speaking, consist of non-proprietary Marketable Securities as well as proprietary equity and debt securities issued by First Leaside (the so-called “FL Products”). All segregated Marketable Securities are held in segregated client accounts with Penson Financial Services Canada Inc.
[4] First Leaside designed its FL Products to provide investors with consistent monthly distributions. First Leaside acts as a real estate syndicate, purchasing real estate through limited partnerships with a view to rehabilitating the properties for lease at higher rates or eventual resale. First Leaside incorporated special-purpose corporations to act as general partners in the various LPs it set up. The general partners of First Leaside’s Canadian LPs – i.e. those which own property in Canada – are applicants in this proceeding. First Leaside also seeks to extend the benefits of the Initial Order to the corresponding LPs.
[5] First Leaside has two types of LPs: individual LPs that acquire and operate a single property or development, and aggregator LPs that hold units of multiple LPs. Investors have invested in both kinds of LPs. In paragraph 49 of his affidavit Mr. MacLeod detailed the LPs within First Leaside. While most First Leaside LPs hold interests in identifiable properties, for a few, called “Blind Pool LPs”, clients invest funds without knowing where the funds likely were to be invested. Those LPs are described in paragraph 51 of Mr. MacLeod’s affidavit.
[6] The applicant, First Leaside Finance Inc. (“FL Finance”), acted as a “central bank” for the First Leaside group of entities.
III. The material events leading to this application
[7] In the fall of 2009 the Ontario Securities Commission began investigating First Leaside. In March, 2011, First Leaside retained the proposed Monitor, Grant Thornton Limited, to review and make recommendations about First Leaside’s businesses. Around the same time First Leaside arranged for appraisals to be performed of various properties.
[8] Grant Thornton released its report on August 19, 2011. For purposes of this application Grant Thornton made several material findings:
(i) There exist significant interrelationships between the entities in the FL Group which result in a complex corporate structure;
(ii) Certain LPs have been a drain on the resources of the Group as a result of recurring operating losses and property rehabilitation costs; and,
(iii) The future viability of the FL Group was contingent on its ability to raise new capital:
“If the FL Group was restricted from raising new capital, it would likely be unable to continue its operations in the ordinary course, as it would have insufficient revenue to support its infrastructure, staffing costs, distributions, and to meet their funding requirements for existing projects.”
[9] As a result of the report First Leaside hired additional staff to improve accounting resources and financial planning. Last November the Board appointed an Independent Committee to assume all decision-making authority in respect of First Leaside; the Group’s founder, David Phillips, was no longer in charge of its management.
[10] FLSI is regulated by both the OSC and the Investment Industry Regulatory Organization of Canada (“IIROC”). In October, 2011, IIROC issued FLSI a discretionary early warning level 2 letter prohibiting the company from reducing capital and placing other restrictions on its activities. At the same time the OSC told First Leaside that unless satisfactory arrangements were made to deal with its situation, the OSC almost certainly would take regulatory action, including seeking a cease trade order.
[11] First Leaside agreed to a voluntary cease trade, retained Grant Thornton to act as an independent monitor, informed investors about those developments, and made available the August Grant Thornton report.
[12] Because the cease trade restricted First Leaside’s ability to raise capital, the Independent Committee decided in late November to cease distributions to clients, including distributions to LP unit holders, interest payments on client notes/debts, and dividends on common or preferred shares.
[13] In December the Independent Committee decided to retain Mr. MacLeod as CRO for First Leaside and asked him to develop a workout plan, which he finalized in late January, 2012. Mr. MacLeod deposed that the downturn in the economy has resulted in First Leaside realizing lower operating income while incurring higher operational costs. In his affidavit Mr. MacLeod set out his conclusion about a workout plan:
After carefully analyzing the situation, my ultimate conclusion was that it was too risky and uncertain for First Leaside to pursue a resumption of previous operations, including the raising of capital. My recommendation to the Independent Committee was that First Leaside instead undertake an orderly wind-down of operations, involving:
(a) Completing any ongoing property development activity which would create value for investors;
(b) Realizing upon assets when it is feasible to do so (even where optimal realization might occur over the next 12 to 36 months);
(c) Dealing with the significant inter-company debts; and,
(d) Distributing proceeds to investors.
Mr. MacLeod further deposed:
[T]he best way to promote this wind-down is through a filing under the CCAA so that all issues – especially the numerous investor and creditor claims and inter-company claims – can be dealt with in one forum under the supervision of the court.
The Independent Committee approved Mr. MacLeod’s recommendations. This application resulted.
IV. Availability of CCAA
A. The financial condition of the applicants
[14] According to Mr. MacLeod, First Leaside has over $370 million in assets under management. Some of those, however, are Marketable Securities. First Leaside is proposing that clients holding Marketable Securities (which are held in segregated accounts) be free to transfer them to another investment dealer during the CCAA process. As to the value of FL Products, Mr. MacLeod deposed that “it remains to be determined specifically how much value will be realized for investors on the LP units, debt instruments, and shares issued by the various First Leaside entities.”
[15] First Leaside’s debt totals approximately $308 million: $176 million to secured creditors (mostly mortgagees) and $132 million to unsecured creditors, including investors holding notes or other debt instruments.
[16] Mr. MacLeod summarized his assessment of the financial status of the First Leaside Group as follows:
[S]ince GTL reported that the aggregate value of properties in the First Leaside exceeded the value of the properties, there will be net proceeds remaining to provide at least some return to subordinate creditors or equity holders (i.e., LP unit holders and corporation shareholders) in many of the First Leaside entities. The recovery will, of course, vary depending on the entity. At this stage, however, it is fair to conclude that there is a material equity deficit both in individual First Leaside entities and in the overall First Leaside group.
[17] In his affidavit Mr. MacLeod also deposed, with respect to the financial situation of First Leaside, that:
(i) The cease trade placed severe financial constraints on First Leaside as almost every business unit depended on the ability of FLWM and its subsidiaries to raise capital from investors;
(ii) There are immediate cash flow crises at FLWM and most LPs;
(iii) FLWM’s cash reserves had fallen from $2.8 million in November, 2011 to $1.6 million at the end of this January;
(iv) Absent new cash from asset disposals, current cash reserves would be exhausted in April;
(v) At the end of December, 2011 Ventures defaulted by failing to make a principal mortgage payment of $4.25 million owing to KingSett;
(vi) Absent cash flow from FLWM a default is imminent for Investor’s Harmony property;
(vii) First Leaside lacks the liquidity or refinancing options to rehabilitate a number of the properties and execute on its business plan; and,
(viii) First Leaside generally has been able to make mortgage payments to its creditors, but in the future it will be difficult to do so given the need to expend monies on property development and upgrading activities
[18] In his description of the status of the employees of the Applicants, Mr. MacLeod did not identify any issue concerning a pension funding deficiency.[^1] The internally-prepared 2010 FLWM financial statements did not record any such liability. Grant Thornton did not identify any such issue in its Pre-filing Report.
[19] First Leaside is not proposing to place all of its operations under court-supervised insolvency proceedings. It does not plan to seek Chapter 11 protection for its Texas properties since it believes they may be able to continue operations over the anticipated wind-up period using cash flows they generate and pay their liabilities as they become due. Nor does First Leaside seek to include in this CCAA proceeding the First Leaside Venture LP (“Ventures”) which owns and operates several properties in Ontario and British Columbia. On February 15, 2012 Ventures and Bridge Gap Konsult Inc. signed a non-binding term sheet to provide some bridge financing for Ventures. First Leaside decided not to include certain Ventures-related limited partnerships in the CCAA application at this stage,[^2] while reserving the right to later bring a motion to extend the Initial Order and stay to these Excluded LPs. The Initial Order which I signed reflected that reservation.
[20] As noted above, over the better part of the past year the proposed Monitor, Grant Thornton, has become familiar with the affairs of the First Leaside Group as a result of the review it conducted for its August, 2011 report. Last November First Leaside retained Grant Thornton as an independent monitor of its business.
[21] In its Pre-filing Report Grant Thornton noted that the last available financial statements for FLWM were internally prepared ones for the year ended December 31, 2010. They showed a net loss of about $2.863 million. The Pre-filing Report contained a 10-week cash flow projection (ending April 27, 2012) prepared by the First Leaside Group. The Cash Flow Projection does not contemplate servicing interest and principal payments during the projection period. On that basis the Cash Flow Projection showed the Group’s combined closing bank balance declining from $6.97 million to $4.144 million by the end of the projection period. Grant Thornton reviewed the Cash Flow Projection and stated that it reflected the probable and hypothetical assumptions on which it was prepared and that the assumptions were suitably supported and consistent with the plans of the First Leaside Group and provided a reasonable basis for the Cash Flow Projection.
[22] Grant Thornton reported that certain creditors, specifically construction lien claimants, had commenced enforcement proceedings and it concluded:
Given creditors’ actions to date and due to the complicated nature of the FL Group’s business, the complex corporate structure and the number of competing stakeholders, it is unlikely that the FL Group will be able to conduct an orderly wind-up or continue to rehabilitate properties without the stability provided by a formal Court supervised restructuring process.
As the various stakeholder interests are in many cases intertwined, including intercompany claims, the granting of the relief requested would provide a single forum for the numerous stakeholders of the FL Group to be heard and to deal with such parties’ claims in an orderly manner, under the supervision of the Court, a CRO and a Court-appointed Monitor. In particular, a simple or forced divestiture of the properties of the FL Group would not only erode potential investor value, but would not provide the structure necessary to reconcile investor interests on an equitable and ratable basis.
A stay of proceedings for both the Applicants and the LPs is necessary if it is deemed appropriate by this Honourable Court to allow the FL Group to maintain its business and to allow the FL Group the opportunity to develop, refine and implement their restructuring/wind-up plan(s) in a stabilized environment.
B. Findings
[23] I am satisfied that the Applicants are “companies” within the meaning of the CCAA and that the total claims against the Applicants, as an affiliated group of companies, is greater than $5 million.
[24] Are the Applicant companies “debtor companies” in the sense that they are insolvent? For the purposes of the CCAA a company may be insolvent if it falls within the definition of an insolvent person in section 2 of the Bankruptcy and Insolvency Act or if its financial circumstances fall within the meaning of insolvent as described in Re Stelco Inc. which include a financially troubled corporation that is "reasonably expected to run out of liquidity within reasonable proximity of time as compared with the time reasonably required to implement a restructuring".[^3]
[25] When looked at as a group the Applicants fall within the extended meaning of “insolvent”: as a result of the cease trade their ability to raise capital has been severely restricted; cash reserves fell significantly from November until the time of filing, and the Cash Flow Projection indicates that cash reserves will continue to decline even with the cessation of payments on mortgages and other debt; Mr. MacLeod estimated that cash reserves would run out in April; distributions to unit holders were suspended last November; and, some formal mortgage defaults have occurred.
[26] However, a secured creditor mortgagee, Midland Loan Services Inc., submitted that to qualify for CCAA protection each individual applicant must be a “debtor company” and that in the case of one applicant, Queenston Manor General Partner Inc., that company was not insolvent. In his affidavit Mr. MacLeod deposed that the Queenston Manor LP is owned by the First Leaside Expansion Limited Partnership (“FLEX”). Queenston owns and operates a 77-unit retirement complex in St. Catherines, has been profitable since 2008 and is expected to remain profitable through 2013. Queenston has been listed for sale, and management currently is considering an offer to purchase the property. Midland Loan submitted that in light of that financial situation, no finding could be made that the applicant, Queenston Manor General Partner Inc., was a “debtor company”.
[27] Following that submission I asked Applicants’ counsel where in the record one could find evidence about the insolvency of each individual Applicant. That prompted a break in the hearing, at the end of which the Applicants filed a supplementary affidavit from Mr. MacLeod. Indicating that one of the biggest problems facing the Applicants was the lack of complete and up-to-date records, in consultation with the Applicants’ CFO Mr. MacLeod submitted a chart providing, to the extent possible, further information about the financial status of each Applicant. That chart broke down the financial status of each of the 52 Applicants as follows:
Insolvent 28
Dormant 15
Little or no realizable assets 5
More information to be made available to the court 3
Other: management revenue stopped in 2010; $70,000 cash; $270,000 in related-company receivables 1
Queenston Manor General Partner Inc. was one of the applicants for which “more information would be made available to the court”.
[28] As I have found, when looked at as a group, the Applicants fall within the extended meaning of “insolvent”. When one descends a few levels and looks at the financial situation of some of the aggregator LPs, such as FLEX, Mr. MacLeod deposed that FLEX is one of the largest net debtors – i.e. it is unable to repay inter-company balances from operating cash flows and lacks sufficient net asset value to settle the intercompany balances through the immediate liquidation of assets. The evidence therefore supports a finding that the corporate general partner of FLEX is insolvent. Queenston Manor is one of several assets owned by FLEX, albeit an asset which uses the form of a limited partnership.
[29] If an insolvent company owns a healthy asset in the form of a limited partnership does the health of that asset preclude it from being joined as an applicant in a CCAA proceeding? In the circumstances of this case it does not. The jurisprudence under the CCAA provides that the protection of the Act may be extended not only to a “debtor company”, but also to entities who, in a very practical sense, are “necessary parties” to ensure that that stay order works. Morawetz J. put the matter the following way in Priszm Income Fund (Re):
The CCAA definition of an eligible company does not expressly include partnerships. However, CCAA courts have exercised jurisdiction to stay proceedings with respect to partnerships and limited partnerships where it is just and convenient to do so. See Lehndorff, supra, and Re Canwest Global Communications Corp., 2009 55114 (ON SC), 2009 CarswellOnt 6184 (S.C.J.).
The courts have held that this relief is appropriate where the operations of the debtor companies are so intertwined with those of the partnerships or limited partnerships in question, that not extending the stay would significantly impair the effectiveness of a stay in respect of the debtor companies.[^4]
[30] Although section 3(1) of the CCAA requires a court on an initial application to inquire into the solvency of any applicant, the jurisprudence also requires a court to take into account the relationship between any particular company and the larger group of which it is a member, as well as the need to place that company within the protection of the Initial Order so that the order will work effectively. On the evidence filed I had no hesitation in concluding that given the insolvency of the overall First Leaside Group and the high degree of inter-connectedness amongst the members of that group, the protection of the CCAA needed to extend both to the Applicants and the limited partnerships listed in Schedule “A” to the Initial Order. The presence of all those entities within the ambit of the Initial Order is necessary to effect an orderly winding-up of the insolvent group as a whole. Consequently, whether Queenston Manor General Partner Inc. falls under the Initial Order by virtue of being a “debtor company”, or by virtue of being a necessary party as part of an intertwined whole, is, in the circumstances of this case, a distinction without a practical difference.
[31] In sum, I am satisfied that those Applicants identified as “insolvent” on the chart attached to Mr. MacLeod’s supplementary affidavit are “debtor companies” within the meaning of the CCAA and that the other Applicants, as well as the limited partnerships listed on Schedule “A” of the Initial Order, are entities to which it is necessary and appropriate to extend CCAA protection.
C. “Liquidation” CCAA
[32] While in most circumstances resort is made to the CCAA to “permit the debtor to continue to carry on business and, where possible, avoid the social and economic costs of liquidating its assets” and to create “conditions for preserving the status quo while attempts are made to find common ground amongst stakeholders for a reorganization that is fair to all”, the reality is that “reorganizations of differing complexity require different legal mechanisms.” [^5] That reality has led courts to recognize that the CCAA may be used to sell substantially all of the assets of a debtor company to preserve it as a going concern under new ownership,[^6] or to wind-up or liquidate it. In Lehndorff General Partner Ltd. (Re)[^7] Farley J. observed:
It appears to me that the purpose of the CCAA is also to protect the interests of creditors and to enable an orderly distribution of the debtor company's affairs. This may involve a winding-up or liquidation of a company or simply a substantial downsizing of its business operations, provided the same is proposed in the best interests of the creditors generally. See Assoc. Investors, supra, at p. 318; Re Amirault Co. (1951), 32 C.B.R. 1986, (1951) 5 D.L.R. 203 (N.S.S.C.) at pp. 187-8 (C.B.R.).
[33] In the decision of Associated Investors of Canada Ltd. (Re) referred to by Farley J., the Alberta Court of Queen’s Bench stated:
The realities of the modern marketplace dictate that courts of law respond to commercial problems in innovative ways without sacrificing legal principle. In my opinion, the Companies' Creditors Arrangement Act is not restricted in its application to companies which are to be kept in business. Moreover, the Court is not without the ability to address within its jurisdiction the concerns expressed in the Ontario cases. The Act may be invoked as a means of liquidating a company and winding-up its affairs but only if certain conditions precedent are met:
It must be demonstrated that benefits would likely flow to Creditors that would not otherwise be available if liquidation were effected pursuant to the Bankruptcy Act or the Winding-Up Act.
The Court must concurrently provide directions pursuant to compatible legislation that ensures judicial control over the liquidation process and an effective means whereby the affairs of the company may be investigated and the results of that investigation made available to the Court.
A Plan of Arrangement should not receive judicial sanction until the Court has in its possession, all of the evidence necessary to allow the Court to properly exercise its discretion according to standards of fairness and reasonableness, absent any findings of illegality.[^8]
The editors of The 2012 Annotated Bankruptcy and Insolvency Act take some issue with the extent of those conditions:
With respect, these conditions may be too rigorous. If the court finds that the plan is fair and reasonable and in the best interests of creditors, and there are cogent reasons for using the statute rather than the BIA or WURA, there seems no reason why an orderly liquidation could not be carried out under the CCAA.[^9]
[34] Mr. MacLeod, the CRO, deposed that no viable plan exists to continue First Leaside as a going concern and that the most appropriate course of action is to effect an orderly wind-down of First Leaside’s operations over a period of time and in a manner which will create the opportunity to realize improved net asset value. In his professional judgment the CCAA offered the most appropriate mechanism by which to conduct such an orderly liquidation:
[T]he best way to promote this wind-down is through a filing under the CCAA so that all issues – especially the numerous investor and creditor claims and the inter-company claims – can be dealt with in one forum under the supervision of the court.
In its Pre-filing Report the Monitor also supported using the CCAA to implement the “restructuring/wind-up plan(s) in a stabilized environment”.
[35] Both the CRO and the proposed Monitor possess extensive knowledge about the workings of the Applicants. Both support a process conducted under the CCAA as the most practical and effective way in which to deal with the affairs of this insolvent group of companies. No party contested the availability of the CCAA to conduct an orderly winding-up of the affairs of the Applicants (although, as noted, some parties questioned whether certain entities should be included within the scope of the Initial Order). Given that state of affairs, I saw no reason not to accept the professional judgment of the CRO and the proposed Monitor that a liquidation under the CCAA was the most appropriate route to take.
[36] Moreover, I saw no prejudice to claimant creditors by permitting the winding-up of the First Leaside Group to proceed under the CCAA instead of under the BIA in view of the convergence which exists between the CCAA and BIA on the issue of priorities. As the Supreme Court of Canada pointed out in Century Services:
Because the CCAA is silent about what happens if reorganization fails, the BIA scheme of liquidation and distribution necessarily supplies the backdrop for what will happen if a CCAA reorganization is ultimately unsuccessful.[^10]
As the British Columbia Court of Appeal observed in Caterpillar Financial Services Ltd. v. 360networks corp. interested parties also use that priorities backdrop to negotiate successful CCAA reorganizations:
While it might be suggested that CCAA proceedings may require those with a financial stake in the company, including shareholders and creditors, to compromise some of their rights in order to sustain the business, it cannot be said that the priorities between those with a financial stake are meaningless. The right of creditors to realize on any security may be suspended pending the final approval of the court, but this does not render their potential priority nugatory. Priorities are always in the background and influence the decisions of those who vote on the plan.[^11]
[37] I therefore concluded that the CCAA was available to the Applicants in the circumstances, and I so ordered.
V. Representative Counsel, CRO and Monitor
[38] The Applicants sought the appointment of Fraser Milner Casgrain (“FMC”) as Representative Counsel to represent the interests of the some 1,200 clients of FLSI in this proceeding, subject to the right of any client to opt-out of such representation. The proposed Monitor expressed the view that it would be in the best interests of the FL Group and its investors to appoint Representative Counsel. No party objected to such an appointment. I reviewed the qualifications and experience of proposed Representative Counsel and its proposed fees, and I was satisfied that it would be appropriate to appoint FMC as Representative Counsel on the terms set out in the Initial Order.
[39] The Applicants sought the appointment of G.S. MacLeod & Associates Inc. as CRO of First Leaside. No party objected to that appointment. The Applicants included a copy of the CRO’s December 21, 2011 Retention Agreement in their materials. The proposed Monitor stated that the appointment of a CRO was important to ensure an adequate level of senior corporate governance leadership. I agree, especially in light of the withdrawal of Mr. Phillips last November from the management of the Group. The proposed Monitor reported that the terms and conditions of the Retention Agreement were consistent with similar arrangements approved by other courts in CCAA proceedings and the remuneration payable was reasonable in the circumstances. As a result, I confirmed the appointment of G.S. MacLeod & Associates Inc. as CRO of First Leaside.
[40] Finally, I appointed Grant Thornton as Monitor. No party objected, and Grant Thornton has extensive knowledge of the affairs of the First Leaside Group.
VI. Administration and D&O Charges and their priorities
A. Charges sought
[41] The Applicants sought approval, pursuant to section 11.52 of the CCAA, of an Administration Charge in the amount of $1 million to secure amounts owed to the Estate Professionals – First Leaside’s legal advisors, the CRO, the Monitor, and the Monitor’s counsel.
[42] They also sought an order indemnifying the Applicants’ directors and officers against any post-filing liabilities, together with approval, pursuant to section 11.51 of the CCAA, of a Director and Officer’s Charge in the amount of $250,000 as security for such an indemnity. Historically the First Leaside Group did not maintain D&O insurance, and the Independent Committee was not able to secure such insurance at reasonable rates and terms when it tried to do so in 2011.
[43] The Monitor stated that the amount of the Administration Charge was established based on the Estate Professionals’ previous history and experience with restructurings of similar magnitude and complexity. The Monitor regarded the amount of the D&O Charge as reasonable under the circumstances. The Monitor commented that the combined amount of both charges ($1.25 million) was reasonable in comparison with the amount owing to mortgagees ($176 million).
[44] In its Pre-filing Report the Monitor did note that shortly before commencing this application the Applicants paid $250,000 to counsel for the Independent Committee of the Board. The Monitor stated that the payment might “be subject to review by the Monitor, if/when it is appointed, in accordance with s. 36.1(1) of the CCAA”. No party requested an adjudication of this issue, so I refer to the matter simply to record the Monitor’s expression of concern.
[45] Based on the evidence filed, I concluded that it was necessary to grant the charges sought in order to secure the services of the Estate Professionals and to ensure the continuation of the directors in their offices and that the amounts of the charges were reasonable in the circumstances.
B. Priority of charges
[46] The Applicants sought super-priority for the Administration and D&O Charges, with the Administration Charge enjoying first priority and the D&O Charge second, with some modification with respect to the property of FLSI which the Applicants had negotiated with IIROC.
[47] In its Pre-filing Report the proposed Monitor stated that the mortgages appeared to be well collateralized, and the mortgagees would not be materially prejudiced by the granting of the proposed priority charges. The proposed Monitor reported that it planned to work with the Applicants to develop a methodology which would allocate the priority charges fairly amongst the Applicants and the included LPs, and the allocation methodology developed would be submitted to the Court for review and approval.
[48] In Indalex Limited (Re)[^12] the Court of Appeal reversed the super-priority initially given to a DIP Charge by the motions judge in an initial order and, instead, following the sale of the debtor company’s assets, granted priority to deemed trusts for pension deficiencies. In reaching that decision Court of Appeal observed that affected persons – the pensioners – had not been provided at the beginning of the CCAA proceeding with an appropriate opportunity to participate in the issue of the priority of the DIP Charge.[^13] Specifically, the Court of Appeal held:
In this case, there is nothing in the record to suggest that the issue of paramountcy was invoked on April 8, 2009, when Morawetz J. amended the Initial Order to include the super-priority charge. The documents before the court at that time did not alert the court to the issue or suggest that the PBA deemed trust would have to be overridden in order for Indalex to proceed with its DIP financing efforts while under CCAA protection. To the contrary, the affidavit of Timothy Stubbs, the then CEO of Indalex, sworn April 3, 2009, was the primary source of information before the court. In para. 74 of his affidavit, Mr. Stubbs deposes that Indalex intended to comply with all applicable laws including “regulatory deemed trust requirements”.
While the super-priority charge provides that it ranks in priority over trusts, “statutory or otherwise”, I do not read it as taking priority over the deemed trust in this case because the deemed trust was not identified by the court at the time the charge was granted and the affidavit evidence suggested such a priority was unnecessary. As no finding of paramountcy was made, valid provincial laws continue to operate: the super-priority charge does not override the PBA deemed trust. The two operate sequentially, with the deemed trust being satisfied first from the Reserve Fund.[^14]
[49] In his recent decision in Timminco Limited (Re)[^15] (“Timminco I”) Morawetz J. described the commercial reality underpinning requests for Administration and D&O Charges in CCAA proceedings:
In my view, in the absence of the court granting the requested super priority and protection, the objectives of the CCAA would be frustrated. It is not reasonable to expect that professionals will take the risk of not being paid for their services, and that directors and officers will remain if placed in a compromised position should the Timminco Entities continue CCAA proceedings without the requested protection. The outcome of the failure to provide these respective groups with the requested protection would, in my view, result in the overwhelming likelihood that the CCAA proceedings would come to an abrupt halt, followed, in all likelihood, by bankruptcy proceedings.[^16]
[50] In its Pre-filing Report the proposed Monitor expressed the view that if the priority charges were not granted, the First Leaside Group likely would not be able to proceed under the CCAA.
[51] In my view, absent an express order to the contrary by the initial order applications judge, the issue of the priorities enjoyed by administration, D&O and DIP lending charges should be finalized at the commencement of a CCAA proceeding. Professional services are provided, and DIP funding is advanced, in reliance on super-priorities contained in initial orders. To ensure the integrity, predictability and fairness of the CCAA process, certainty must accompany the granting of such super-priority charges. When those important objectives of the CCAA process are coupled with the Court of Appeal’s holding that parties affected by such priority orders be given an opportunity to raise any paramountcy issue, it strikes me that a judge hearing an initial order application should directly raise with the parties the issue of the priority of the charges sought, including any possible issue of paramountcy in respect of competing claims on the debtor’s property based on provincial legislation.
[52] Accordingly I raised that issue at the commencement of the hearing last Thursday and requested submissions on the issues of priority and paramountcy from any interested party. Several parties made submissions on those points: (i) the Applicants, proposed Monitor and proposed Representative Counsel submitted that the Court should address any priority or paramountcy issues raised; (ii) IIROC advised that it did not see any paramountcy issue in respect of its interests; (iii) counsel for Midland Loan submitted that a paramountcy issue existed with respect to its client, a secured mortgagee, because it enjoyed certain property rights under provincial mortgage law; she also argued that the less than full day’s notice of the hearing given by the Applicants was inadequate to permit the mortgagee to consider its position, and her client should be given seven days to do so; and, (iv) counsel for a construction lien claimant, Structform International, who spoke on behalf of a number of such lien claimants, made a similar submission, contending that the construction lien claimants required 10 days to determine whether they should make submissions on the relationship between their lien claims and any super-priority charge granted under the CCAA.
[53] I did not grant the adjournment requested by the mortgagee and construction lien claimants for the following reasons. First, the facts in Indalex were quite different from those in the present case, involving as they did considerations of what fiduciary duty a debtor company owed to pensioners in respect of underfunded pension liabilities. I think caution must be exercised before extending the holding of Indalex concerning CCAA-authorized priority charges to other situations, such as the one before me, which do not involve claims involving pension deficiencies, but claims by more “ordinary” secured creditors, such as mortgagees and construction lien claimants.
[54] Second, I have some difficulty seeing how constitutional issues of paramountcy arise in in a CCAA proceeding as between claims to the debtor’s property by secured creditors, such as mortgagees and construction lien claimants, and persons granted a super-priority charge by court order under sections 11.51 and 11.52 of the CCAA. At the risk of gross over-simplification, Canadian constitutional law places the issue of priorities of secured creditors in different legislative balliwicks depending on the health of the debtor company. When a company is healthy, secured creditor priorities usually are determined under provincial laws, such as personal property security legislation and related statutes, which result from provincial legislatures exercising their powers with respect to “property and civil rights in the province”.[^17] However, when a company gets sick - becomes insolvent - our Constitution vests in Parliament the power to craft the legislative regimes which will govern in those circumstances. Exercising its power in respect of “bankruptcy and insolvency”,[^18] Parliament has established legal frameworks under the BIA and CCAA to administer sick companies. Priority determinations under the CCAA draw on those set out in the BIA, as well as the provisions of the CCAA dealing with specific claims such as Crown trusts and other claims.
[55] As it has evolved over the years the constitutional doctrine of paramountcy polices the overlapping effects of valid federal and provincial legislation: “The doctrine applies not only to cases in which the provincial legislature has legislated pursuant to its ancillary power to trench on an area of federal jurisdiction, but also to situations in which the provincial legislature acts within its primary powers, and Parliament pursuant to its ancillary powers.”[^19] Since 1960 the Supreme Court of Canada has travelled a “path of judicial restraint in questions of paramountcy”.[^20] That Court has not been prepared to presume that, by legislating in respect of a matter, Parliament intended to rule out any possible provincial action in respect of that subject,[^21] unless (and it is a big “unless”), Parliament used very clear statutory language to that effect.[^22]
[56] I have found that the Applicants have entered the world of the sick, or the insolvent, and are eligible for the protection of the federal CCAA. The federal legislation expressly brings mortgagees and construction lien claimants within its regime – the definition of “secured creditor” contained in section 2 of the CCAA specifically includes “a holder of a mortgage” and “a holder of a …lien…on or against…all or any of the property of a debtor company as security for indebtedness of the debtor company”. The federal legislation also expressly authorizes a court to grant priority to administration and D&O charges over the claims of such secured creditors of the debtor.[^23] In light of those express provisions in sections 2, 11.51 and 11.52 of the CCAA, and my finding that the Applicants are eligible for the protection offered by the CCAA, I had great difficulty understanding what argument could be advanced by the mortgagees and construction lien claimants about the concurrent operation of provincial and federal law which would relieve them from the priority charge provisions of the CCAA. I therefore did not see any practical need for an adjournment.
[57] Finally, sections 11.51(1) and 11.52(1) of the CCAA both require that notice be given to secured creditors who are likely to be affected by an administration or D&O charge before a court grants such charges. In the present case I was satisfied that such notice had been given. Was the notice adequate in the circumstances? I concluded that it was. To repeat, making due allowance for the unlimited creativity of lawyers, I have difficulty seeing what concurrent operation argument could be advanced by mortgagee and construction lien claims against court-ordered super-priority charges under sections 11.51 and 11.52 of the CCAA. Second, as reported by the proposed Monitor, the quantum of the priority charges ($1.25 million) is reasonable in comparison with the amount owing to mortgagees ($176 million) and the mortgages appeared to be well collateralized based on available information. Third, the Applicant and Monitor will develop an allocation methodology for the priority charges for later consideration by this Court. The proposed Monitor reported:
It is the Proposed Monitor’s view that the allocation of the proposed Priority Charges should be carried out on an equitable and proportionate basis which recognizes the separate interests of the stakeholders of each of the entities.
The secured creditors will be able to make submissions on any proposed allocation of the priority charges. Finally, while I understand why the secured creditors are focusing on their specific interests, it must be recalled that the work secured by the priority charges will be performed for the benefit of all creditors of the Applicants, including the mortgagees and construction lien claimants. All creditors will benefit from an orderly winding-up of the affairs of the Applicants.
[58] In the event that I am incorrect that no paramountcy issue arises in this case in respect of the priority charges, I echo the statements made by Morawetz J. in Timminco I which I reproduced in paragraph 49 above. In Indalex the Court of Appeal accepted that “the CCAA judge can make an order granting a super-priority charge that has the effect of overriding provincial legislation”.[^24] I find that it is both necessary and appropriate to grant super priority to both the Administration and D&O Charges in order to ensure that the objectives of the CCAA are not frustrated.
[59] For those reasons I did not grant the adjournment requested by Midland Loan and the construction lien claimants, concluding that they had been given adequate notice in the circumstances, and I granted the requested Administration and D&O Charges.
VII. Other matters
[60] At the hearing counsel for one of the construction lien claimants sought confirmation that by granting the Initial Order a construction lien claimant who had issued, but not served, a statement of claim prior to the granting of the order would not be prevented from serving the statement of claim on the Applicants. Counsel for the Applicants confirmed that such statements of claim could be served on it.
[61] At the hearing the Applicants submitted a modified form of the model Initial Order. Certain amendments were proposed during the hearing; the parties had an opportunity to make submissions on the proposed amendments.
VIII. Summary
[62] For the foregoing reasons I was satisfied that it was appropriate to grant the CCAA Initial Order in the form requested. I signed the Initial Order at 4:08 p.m. EST on Thursday, February 23, 2012.
D. M. Brown J.
Date: February 26, 2012
[^1]: MacLeod Affidavit, paras. 104 to 106.
[^2]: The Excluded LPs were identified in paragraph 134 of Mr. MacLeod’s affidavit.
[^3]: (2004), 2004 24933 (ON SC), 48 C.B.R. (4th) 299 (Ont. S.C.J.).
[^4]: 2011 ONSC 2061, paras. 26-27.
[^5]: Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, paras. 15, 77 and 78.
[^6]: Nortel Networks Corp. (Re), 2009 ONCA 833, para. 46; see Kevin P. McElcheran, Commercial Insolvency in Canada, Second Edition (Toronto: LexisNexis, 2011), pp. 284 et seq.
[^7]: [1993] O.J. No. 14 (Gen. Div.). In Brake Pro, Ltd. (Re), [2008] O.J. No. 2180 (S.C.J.), Wilton-Siegel J. stated, at paragraph 10: “While reservations are expressed from time to time regarding the appropriateness of a “liquidating” CCAA proceeding, such proceedings are permissible under the CCAA.”
[^8]: First Investors Corp. (Re) (1987), 1987 3217 (AB KB), 46 D.L.R. (4th) 669 (Alta. Q.B.), para. 36.
[^9]: Houlden, Morawetz & Sarra, The 2012 Annotated Bankruptcy and Insolvency Act, N§1, p. 1099.
[^10]: Century Services, supra., para. 23.
[^11]: (2007), 2007 BCCA 14, 279 D.L.R. (4th) 701 (B.C.C.A.), para. 42.
[^12]: 2011 ONCA 265.
[^13]: Ibid., para. 155.
[^14]: Ibid., paras. 178 and 179.
[^15]: 2012 ONSC 506.
[^16]: Ibid., para. 66.
[^17]: Constitution Act, 1867, s. 92 ¶13.
[^18]: Ibid., s. 91 ¶21.
[^19]: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, para. 69.
[^20]: Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188, para. 21
[^21]: Canadian Western Bank, supra., para. 74.
[^22]: Rothmans, supra., para. 21.
[^23]: CCAA ss. 11.51(2) and 11.52(2).
[^24]: Indalex, supra., para. 176.