COURT FILE AND PARTIES

COURT FILE NO.: CV-09-8241-00CL
DATE: 20120918

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: 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 FRASER PAPERS INC./PAPIERS FRASER INC. AND FPS CANADA INC., Applicants

BEFORE: MORAWETZ J.

COUNSEL:
D. J. Miller and J. T. Porter, for the Applicants in the CCAA Proceedings and for the Former Directors in the Quebec Class Action

D. Wray, J. Kugler and K. Duranleau, for the Quebec Class Action Plaintiffs

A. Merskey and V. Sinha, for AON Conseil Inc. c.o.b. as AON Hewitt

HEARD: JUNE 29, 2012

ENDORSEMENT

INTRODUCTION

[ 1 ] This motion was brought by Mr. Paul E. Gagné and Mr. Samuel J. B. Pollock (the “Defendant Directors”), former directors of Fraser Papers Inc. (“Fraser Papers”), for certain relief relating to a class action commenced in the Superior Court of Quebec – Class Action Division, Court File No. 500-06-000598274 (the “Class Action Claim”) by Rene Emond, Jean-Guy Provost and Geinette Bonneau-Parent (collectively, the “Class Action Plaintiffs”) against, inter alia , the Defendant Directors.

[ 2 ] The Defendant Directors seek declarations that:

(i) the Class Action Plaintiffs in the Class Action Claim constitute Current and Former CEP Members as such term is defined in the order issued in these proceedings dated September 17, 2009 (the “CEP Representation Order”) and, as such, and in that capacity, are subject to the jurisdiction of this court;

(ii) the Class Action Plaintiffs and all other Current and Former CEP Members who are or were at any time beneficiaries, participants, surviving spouses or dependants under the Quebec Hourly Plan (defined below) were represented by the Communications, Energy and Paperworkers Union of Canada (“CEP”) with respect to any claims in any way related to Fraser Papers, including but not limited to, in connection with the Quebec Hourly Plan;

(iii) pursuant to the CEP Representation Order and the order in these proceedings dated April 6, 2010 (the “April Sale Order”), CEP was authorized to and did:

(a) negotiate and compromise any claims that existed or that arose at law or equity in connection with any issue or matter relating to any recovery, compromise of rights or entitlements of the Current and Former CEP Members, including but not limited to any claims in connection with the Quebec Hourly Plan;

(b) execute an agreement dated February 24, 2010 (the “Global Agreement”) releasing the Defendant Directors from all claims relating to all facts and circumstances existing as at that date, whether known or unknown; and

(c) execute a further release in favour of the Defendant Directors dated April 7, 2010 (the “Contractual Release”) releasing them from all claims relating to all facts and circumstances existing as at February 24, 2010, whether known or unknown;

(iv) section 5.1(2) of the Companies’ Creditors Arrangement Act (“CCAA”) does not affect the contractual releases of the Defendant Directors contained in the Global Agreement or the Contractual Release executed by the CEP on behalf of the Current and Former CEP Members;

(v) any claims that could have been asserted by the Current and Former CEP Members, whether in respect of the Quebec Hourly Plan or otherwise, have been fully and irrevocably released pursuant to the Global Agreement and the Contractual Release;

(vi) the contractual releases of the Defendant Directors contained in the Global Agreement and the Contractual Releases are unlimited, and do not exclude claims of any type, whether based on contract, allegations of misrepresentation, wrongful or oppressive conduct, or otherwise.

FACTS AND ISSUES

[ 3 ] Fraser Papers and certain of its Canadian and U.S. affiliates filed for protection pursuant to the CCAA (the “CCAA Proceeding”) on June 18, 2009.

[ 4 ] Fraser Papers was the plan sponsor for four defined benefit pension plans registered in Canada; two of which were registered in Quebec and two of which were registered in New Brunswick.

[ 5 ] One of the Quebec plans provides benefits to hourly (unionized) employees and former employees at the company’s mill in Thurso, Quebec (the “Quebec Hourly Plan”), while the other Quebec plan was for salaried (non-unionized) employees and retirees.

[ 6 ] On September 17, 2009, CEP brought a motion seeking to represent its current members and to represent former members of bargaining units represented by CEP including pensioners, retirees, deferred vested participants and surviving spouses and dependants employed or formerly employed by Fraser Papers (the “Current and Former CEP Members”).

[ 7 ] On September 17, 2009, the court issued an order confirming CEP’s representation of all Current and Former CEP Members (the “CEP Representation Order”). CEP was expressly authorized under the CEP Representation Order to compromise any and all claims that existed or might arise at law or equity in connection with any issue or matter relating to any recovery, compromise of rights or entitlements of the Current and Former CEP Members.

[ 8 ] With the exception of 24 retirees of the International Brotherhood of Electrical Workers’ Union, who were represented by Davies Ward Phillips & Vineberg pursuant to a separate representation order also dated September 17, 2009, all beneficiaries of the Quebec Hourly Plan were Current and Former CEP Members represented by CEP pursuant to the CEP Representation Order.

[ 9 ] No party made an election to opt out of representation by CEP under the CEP Representation Order.

[ 10 ] The three representative plaintiffs in the Quebec Class Action were Current and Former CEP Members as defined by the CEP Representation Order and were represented by CEP in that capacity.

[ 11 ] Pursuant to the CEP Representation Order, CEP:

(i) executed the Global Agreement containing a release in favour of Fraser Papers’ directors and officers;

(ii) consented to court orders approving the Global Agreement and the releases contained therein by orders dated February 24, 2010 and March 22, 2010;

(iii) executed a further contractual release in favour of Fraser Papers’ directors and officers dated April 7, 2010 (the “Contractual Release”);

(iv) consented to other releases in favour of Fraser Papers’ directors and officers contained in the April Sale Order. Such releases are referred to collectively as the “CEP Releases”.

[ 12 ] The release contained in the Global Agreement, which was annexed to the court orders of Pepall J. (as she then was) dated February 24, 2010 and March 22, 2010, provides as follows:

[20] Each of: (i) the applicant’s directors and officers; and (ii) Brookfield Asset Management and its directors and officers shall be released from all claims relating to all facts and circumstances in respect of the applicant’s existing as at this time (whether known or unknown) and the completion of the APA.

[ 13 ] The language of the Contractual Release reads:

5. The union hereby irrevocably, fully and finally releases each of FP’s directors and officers from all claims relating to all facts and circumstances in respect of FP existing as at February 24, 2010 (whether known or unknown) and the completion of the APA.

[ 14 ] Mr. Glen McMillan, former Chief Financial Officer of Fraser Papers, deposed that, in reliance upon the releases granted by CEP, transactions were undertaken by the Applicants and other parties which provided significant value to all unsecured creditors, including all beneficiaries under the Quebec Hourly Plan, that would not have otherwise been possible. Further, Mr. McMillan states that the unqualified release in favour of Fraser Papers’ directors was a fundamental term of an agreement that permitted the Applicants’ largest business operations to be sold and value to be available for distribution to unsecured creditors including the Quebec Hourly Plan.

[ 15 ] The Applicants take the position that the cause of action asserted in the Class Action Claim flows from the deficit under the Quebec Hourly Plan and the corresponding reduction of benefits to beneficiaries under the Quebec Hourly Plan.

[ 16 ] The Applicants also take the position that the CCAA Proceeding included a claims process, pursuant to which all claims against the Applicants and their directors and officers were to be filed and that the process provided for the exclusive forum in which any and all claims that could be asserted by any person (defined in the Claims Order to include legal representatives) against the Applicants and their directors or officers must be filed. The Applicants further contend that this claims process allowed the Applicants, their directors and officers, the Monitor, the court and all other stakeholders to identify the universe of potential claims.

[ 17 ] A claim was filed against Fraser Papers and accepted in the CCAA Proceeding for the entire amount of the deficit under the Quebec Hourly Plan, and distributions have been made to the Quebec Hourly Plan based on the claim for the entire deficit.

[ 18 ] CEP did not file a proof of claim against the Defendant Directors at any time during the CCAA Proceeding.

[ 19 ] The issue in the Class Action Claim with respect to the Defendant Directors is described as: Did the persons who are directly responsible for establishing, applying and monitoring the investment policy of the pension plan of the unionized workers of Fraser Papers Inc., Thurso Pulp Mill, commit an offence making them liable for the losses of benefits and reductions in the rights of the participants and beneficiaries.

[ 20 ] From the standpoint of the Class Action Plaintiffs, this motion raises the following issues:

(i) whether this court has the jurisdiction to deal with an determine the present motion; and

(ii) if so, whether the claims pleaded in the Class Action have been released.

[ 21 ] For the following reasons, I am of the opinion that this court has the jurisdiction to deal with and determine this motion. I am also of the opinion that the claims pleaded in the Class Action Claim have been released.

JURISDICTION

[ 22 ] The Class Action Plaintiffs take the position that the Class Action Claim has been properly filed with the court in Quebec and that the position advanced by the Applicants on this motion ought to have been brought before the court in Quebec.

[ 23 ] Counsel submits that, while the amended CCAA plan was sanctioned by this court, this does not grant “exclusive jurisdiction” upon this court to issue orders relating to litigation commenced in another jurisdiction. Further, even if the amended CCAA plan does grant “exclusive jurisdiction” to this court, the exclusivity of that jurisdiction is limited to the amended CCAA plan itself and does not extend to all of the issues raised by the Defendant Directors on this motion.

[ 24 ] In my view, a complete answer to this argument is provided by the Applicants at paragraphs 24-26 of their factum.

[ 25 ] Simply put, the amended CCAA plan, which has been sanctioned by this court, stipulates that any issue relating to the effect of the amended CCAA plan is subject to the exclusive jurisdiction of this court.

[ 26 ] Further, sections 11 and 17 of the CCAA provide this court with the authorization to grant the relief requested by the Defendant Directors and to make any order that it considers appropriate in the circumstances.

[ 27 ] Each of the orders made by this court, including the CEP Representation Order, the Claims Order, the orders approving the Global Agreement, the April Sales Order and the Sanction Order have legal force and effect in Quebec, by operation of law. It is the scope of these orders which has been called into question in the Class Action Claim. In my view, it is beyond question, that this motion directly involves issues relating to the effect of the amended CCAA plan.

[ 28 ] The CCAA provides for and these orders requested the aid and assistance of the courts of other jurisdictions in recognizing and enforcing the terms of such orders. (See CCAA section 16.) I am satisfied that this court has the jurisdiction to deal with this motion.

RELEASES

[ 29 ] With respect to the second issue, namely, whether the claims pleaded in the Class Action Claim have been released, the Class Action Plaintiffs take the position that section 2(f)(iii) of the Claims Procedure Orders called for claims to be filed against the Applicants and/or directors and, as such, the Claims Procedure did not call for creditors to file claims against directors acting in a capacity other than that of director or officer of the Applicants. Further, the Claims Procedure Order, they submit, cannot bar claims that cannot be compromised pursuant section 5.1(2) of the CCAA or claims that were unknown at the claims bar date.

[ 30 ] The Class Action Plaintiffs point out that the Defendant Directors are former directors of the Applicants. They are, however, named as defendants in the Quebec Class Action both in their capacity as directors of the Applicants and in their capacity as members of the Applicants’ management pension committee with delegated authority to oversee the funding, investment management and administration of the Quebec Hourly Plan pursuant to section 152 of the Quebec Supplemental Pension Plan’s Act (the “SPPA”) and the applicable instrument of delegation.

[ 31 ] The Class Action Plaintiffs allege that, pursuant to their delegated authority, the Defendant Directors, as administrators of the Quebec Hourly Plan, were required to exercise the prudence, diligence and skill that a reasonable person would exercise in similar circumstances and, pursuant to their delegated authority, the Defendant Directors were required to report to the Quebec Hourly Plan Pension Committee in writing any situation in the normal course that might adversely affect the financial interests of the pension fund and that requires correction.

[ 32 ] It is also contended that the claims in the Class Action Claim were not known or discovered until in or around the termination of the CCAA Proceeding.

[ 33 ] The Class Action Claim seeks damages against the Defendant Directors personally in the amount of $11.7 million.

[ 34 ] Counsel to the Class Action Plaintiffs submits that the Contractual Release contains a number of limitations. First, they contend that the Contractual Release does not extend to extinguish claims against the Defendant Directors acting in the capacity of delegates of the Quebec Hourly Plan Pension Committee. Counsel submits that directors may wear “two hats” – one in the role of employer and the other as administrator of a pension plan and there is a clear legal distinction between the conduct of the Defendant Directors’ qua corporation, where they have an obligation to act in the best interests of the Applicants, and the Defendant Directors qua delegate of the Quebec Hourly Pension Plan Committee, where they have an obligation to act with prudence, care and in the best interests of the Quebec Hourly Plan.

[ 35 ] Counsel submits that the releases, both contractual and statutory, should be interpreted in light of the dual roles carried out by the Defendant Directors and that releases in favour of directors qua corporation will not release the conduct of directors qua delegates of the Quebec Hourly Plan Pension Committee. The Class Action Claim consists of, inter alia , claims against the Defendant Directors qua delegates of the pension committee – claims, counsel submits, are not released pursuant to the Contractual Release. Counsel references Morneau Sobecco Limited v. AON Consulting Inc. , 2008 ONSC 196 , paras. 31-37 and Indalex Limited (Re) , 2011 ONCA 265 at para. 129 .

[ 36 ] Counsel also submits that, with the exception of fraud or gross negligence, the Contractual Release expressly releases the releasees, which include, the Defendant Directors, from claims arising out of any decrease in the New Brunswick Hourly Plan (“NB Hourly Plan”) but no similar release exists with respect to any decrease in the value of the Quebec Hourly Plan. Counsel submits that the absence of a release in respect of any decrease in the value of the Quebec Hourly Plan reflects the parties’ intention not to release such conduct.

[ 37 ] Counsel to the Class Action Plaintiffs also submits that the context in which the Contractual Release was negotiated confirms the limitations to the release described above. The Contractual Release was negotiated in the context of satisfying the conditions precedent to the specialty papers transaction and was not negotiated in the context of the sale of the Thurso facility. As such, the releases granted should therefore be considered and interpreted in this context.

[ 38 ] Counsel to the Class Action Plaintiffs also submits that the CCAA court orders do not release the claims against the Defendant Directors in the Class Action Claim.

[ 39 ] Counsel submits that the release contained in the April Sale Order has a number of limitations and that claims against the Applicants’ directors and officers for fraud and gross negligence are expressly carved out of the release. The claims against the Defendant Directors set out in the Quebec Class Action include claims of a fraudulent misrepresentation and gross negligence and, thus, counsel contends these claims are not extinguished by the release contained in the April Sale Order.

[ 40 ] Further, counsel submits that the release in respect of claims against the Defendant Directors relating to their actions as or on behalf of the administrator or sponsors of the pension plans does not include a release of claims in respect of the Quebec Hourly Plan. Counsel submits that the definition of “pension plans” contained in the April Sale Order is limited to the Applicants’ pension plans registered in New Brunswick and therefore does not include a release in respect of conduct as or on behalf of the administrator or sponsors of the Quebec Hourly Plan.

[ 41 ] Counsel also raises the issue of the sanction order granted on February 11, 2011 which approves and sanctions the amended CCAA plan dated January 27, 2011. The sanction order includes a broad release in favour of the Defendant Directors which release was opposed by the CEP during the sanction hearing.

[ 42 ] Counsel to the Class Action Plaintiffs contends that the broad release in favour of the Defendant Directors was expressly limited by application of s. 5.1 (2) of the CCAA.

[ 43 ] Section 5.1 of the CCAA provides as follows:

5.1 (1) Claims against directors – compromise – a compromise or arrangement made in respect of a debtor company may include in its terms provision for the compromise of claims against directors of the company that arose before the commencement of proceedings under this Act and that relate to the obligations of the company where the directors are by law liable in their capacity as directors for the payment of such obligations.

(2) Exception – a provision for the compromise of claims against directors may not include claims that

(a) relate to contractual rights of one or more creditors; or

(b) are based on allegations of misrepresentations made by directors to creditors or of wrongful or oppressive conduct by directors.

[ 44 ] Counsel submits that the Class Action Claim includes claims that relate to contractual rights of creditors, including claims related to the Defendant Directors’ breach of the delegation instrument that delegated to them authority and responsibility to administer and manage the Quebec Hourly Plan. The Class Action Claim also includes claims of misrepresentation and claims of wrongful conduct against the Defendant Directors in respect of their administration and management of the pension fund. It also alleges that the Defendant Directors acted with gross negligence, as well as made fraudulent and negligent misrepresentations to the pension committee. Oppressive conduct is also alleged and counsel submits that the claims fall within the statutory carve out in section 5.1(2) of the CCAA and therefore are not released by the sanction order.

[ 45 ] In my view, the position put forth by the Class Action Plaintiffs has no merit.

[ 46 ] The CCAA Proceeding included a comprehensive claims process, pursuant to which all claims against the Applicants and their directors and officers were to be filed.

[ 47 ] The definition of “claim” is set out at paragraph 2(f)(iii) of the Claims Procedure Order. It reads as follows:

“Claim” means:

(i) a restructuring claim;

(ii) a secured claim; and/or

(iii) the rights of any person whatsoever, including any secured creditor, against one or more the applicants and/or directors, whether or not asserted and however acquired, in connection with any indebtedness, liability or obligation of any kind of one or more of the applicants and/or directors in existence on the claim date, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, unsecured, present, future, known or unknown, direct or indirect, by guarantee, surety, insurance deductible or otherwise, and whether or not such claim or right arises out of a contract that is executor or anticipatory in nature or any other claims that would have the claims provable in bankruptcy had the applicable applicant become bankrupt on a claim date; provided however, that in all cases “claim” shall not include an excluded claim.

[ 48 ] It seems to me that the definition of claim was drafted in very broad terms. The claims process in place in this proceeding was such that it would allow the Applicants, their directors and officers, the Monitor, the court and all other stakeholders to identify the universe of potential claims.

[ 49 ] As pointed out by Mr. McMillan in his affidavit at paragraphs 33, 52 and 58, a claim was filed against Fraser Papers and accepted in the CCAA Proceeding for the entire amount of the deficit under the Quebec Hourly Plan, and distributions have been made to the Quebec Hourly Plan based on the claim for the entire deficit.

[ 50 ] Further, as noted by Mr. McMillan, CEP chose not to file a proof of claim against the Defendant Directors at any time during the CCAA Proceeding on behalf of the Current and Former CEP Members.

[ 51 ] I am in agreement with the submission put forth by counsel to the Applicants to the effect that nothing in the CCAA:

(i) limits the ability of the party to grant contractual releases to another party;

(ii) limits the ability of the court to authorize the execution of releases by a representative party on behalf of others;

(iii) limits the ability of the court to grant releases to any party on a motion brought within the CCAA proceedings (other than an order sanctioning a plan in the case of directors), particularly where such order is made on consent of the releasors; or

(iv) limits the ability of the court to approve releases granted by one party to another.

[ 52 ] Simply put, a contractual settlement and a release that is binding on the signatories to the contract can be negotiated at any time in a CCAA proceeding.

[ 53 ] Further, I accept the submission of counsel to the Applicants that unlike releases in favour of directors contained in a plan of arrangement that are subject to section 5.1 of the CCAA, no such restrictions exist with respect to contractual releases granted by a party at any stage of the proceeding.

[ 54 ] The CCAA court has the jurisdiction to approve transactions, including settlements, in the course of overseeing proceedings during a CCAA proceeding and prior to any plan of arrangement being presented. See Nortel Networks Corporation (Re) , 2010 ONSC 1708 , 2010 63 C.B.R. (5 th ) 44, Nortel Networks Corporation (Re) , 2010 66 C.B.R. (5 th ) 77 (leave to appeal denied at 2010 CarswellOnt 3752 , leave to appeal to the Supreme Court of Canada dismissed (33491) and Grace Canada Inc. (Re) (2008), 50 C.B.R. (5 th ) 25 .

[ 55 ] I accept the submission of counsel to the Applicants that the Contractual Release extends to all claims relating to all facts and circumstances in respect of Fraser Papers existing at the date of the release, whether known or unknown. The deficit under the Quebec Hourly Plan existed at the time the CCAA Proceeding was commenced which was clearly prior to the execution of the Contractual Release. Further, it was the subject of a proof of claim that had been filed against Fraser Paper. Even if all of the facts giving rise to the deficit under the Quebec Hourly Plan were not known at the time the Contractual Release was executed, it seems to me that the terms of the Release specifically and clearly provide it would be effective to release such claims.

[ 56 ] In my view, a plain reading of the Contractual Release leads to the inescapable conclusion that the Contractual Release covers all activities for which the Class Action Plaintiffs have asserted that the Defendant Directors are liable. Even assuming that the allegations in the Class Action Claim amount to claims for gross negligence or breach of fiduciary duty, it seems to me that the language of the Contractual Release is sufficiently broad to include such claims. The Contractual Release is in favour of Fraser Papers’ directors and officers. It is not restricted in the manner suggested by the Class Action Plaintiffs.

[ 57 ] The purpose of a full and final release is to provide finality to a party, once and for all, from any liability or obligation to another party arising out of particular circumstances.

[ 58 ] In my view, it is clear that the Defendant Directors have been fully and irrevocably released in respect of the claims asserted in the Class Action Claim pursuant to the Contractual Release.

[ 59 ] Furthermore, I am also of the view that the Class Action Claim is barred on the grounds that the subject matter of the Class Action Claim has been released and extinguished in the Applicants’ CCAA Proceeding.

[ 60 ] As counsel to the Applicants points out, since claims in respect of pension, termination, severance, retirement payments and other benefit claims can be central issues in a CCAA Proceeding, where the interests of former employees are at stake, the court may make an order appointing representative counsel that is empowered to negotiate on behalf of its constituents. See Nortel Networks Corporation (Re) , 2009 26603 (ON SC) , 2009 CarswellOnt 3028 (S.C.J.). As noted in Nortel, supra , representation orders provide a social benefit by assisting former employees and providing them with a reliable resource for information about the process. The appointment of representative counsel also benefits the streamlining and introducing efficiency to the process for all parties involved in a CCAA proceeding.

[ 61 ] The CEP Representation Order made in these proceedings is binding on the Class Action Plaintiffs. CEP was clearly authorized to negotiate a compromise of beneficiaries claims or rights on behalf of the Current and Former CEP members. At no time did any individual opt out of the CEP Representation Order.

[ 62 ] The time to assert any claim against the Defendant Directors was during the Claims Process established by court order. As noted above, no claims were filed against the Defendant Directors at any time during the CCAA proceedings in respect of the Quebec Hourly Plan.

[ 63 ] The amended CCAA Plan that received creditor approval was sanctioned by the court. The Class Action Plaintiffs are bound by the terms of the amended CCAA Plan in the sanction order, in addition to the CEP releases.

[ 64 ] As noted by counsel to the Applicants, in the reasons supporting the granting of the sanction order over CEP’s objections, Pepall J. (as she then was) referred to the prior releases that had been granted by or consented to by CEP, which were broader than the releases under the amended CCAA Plan. It seems to me, that the issues giving rise to the Class Action Claim were identified early in the proceedings and were the subject of considerable negotiation. These negotiations led to agreements pursuant to which consideration was paid to certain creditor groups. In exchange, comprehensive releases were executed. It culminated in a court-sanctioned plan, which again, contains release language which, in my view, was clearly intended to finalize the matters at issue on this motion.

[ 65 ] The Quebec Hourly Plan and, therefore, its beneficiaries including all Current and Former CEP members, have received their pro rata share of the distributions under the amended CCAA Plan. In my view, any and all claims of any nature and kind that could be asserted against the Defendant Directors have been released pursuant to the CEP releases.

[ 66 ] Clearly in the negotiation process that culminated in the execution of the Global Agreement and the Contractual Release, it was open to CEP to limit or restrict the scope of the release provisions, so as to preserve the claim that they now wish to prosecute. CEP did not do so. In fact, language that would limit or restrict the release in the manner suggested by the Class Action Plaintiffs at [35] above is conspicuously absent. Likewise, there is no court order that would lead to a conclusion that the court-approved releases were limited in the manner suggested by the Class Action Plaintiffs.

[ 67 ] I am of the view that any claim that could be asserted be asserted by the Current and Former CEP Members, whether in respect of the Quebec Hourly Plan or otherwise, has been released.

DISPOSITION

[ 68 ] The motion of the Defendant Directors is granted and an order shall issue to this effect. In addition, costs are awarded in favour of the Defendant Directors. If the parties are unable to agree on quantum, written submissions, to a maximum of four pages, may be submitted within 21 days.

[ 69 ] It is noted that AON Conseil Inc. c.o.b. as AON Hewitt (“AON”) filed a factum and was present at the hearing. Issues relating to AON have not been determined on this motion and the parties have reserved their rights as to whether AON is entitled to similar relief.

Morawetz J.

Date: September 18, 2012