Urbancorp Cumberland 2 GP Inc., (Re)., 2017 ONSC 7156

Court File No.: CV-16-11541-00CL

Date: 2017-11-30

Ontario Superior Court of Justice (Commercial List)

In the Matter of the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended

And in the Matter of a Plan of Compromise or Arrangement of Urbancorp Cumberland 2 GP Inc., Urbancorp Cumberland 2 L.P., Bosvest Inc., Edge on Triangle Park Inc., and Edge Residential Inc.

(Applicants)

Before: F.L. Myers J.

Counsel: Robert J. Drake and Lori Goldberg, counsel for The Fuller Landau Group Inc., Monitor Fozia Chaudary, Edward Harrison, Kaitlin Coward, Attorney General of Canada, counsel for the Canada Revenue Agency

Heard: November 24, 2017

Endorsement

The Issue

[1] The Monitor asks the court, under s. 36.1 of the Companies' Creditors Arrangement Act, RSC 1985, c.C-36, to declare void as an unjust preference, under s. 95 of the Bankruptcy and Insolvency Act, RSC 1985, c.B-3, two payments of HST made to the Canada Revenue Agency by an insolvent debtor less than three months before it commenced a proposal proceeding.

[2] The question as presented could raise a number of difficult issues:

a. Do the Crown’s deemed trusts under s. 222 of the Excise Tax Act, RSC 1985, c.E-15, cease to apply in proposal proceedings under the BIA before the debtor is formally bankrupt? Put another way, does Century Services Inc. v. Canada Attorney General, 2010 SCC 60 apply to proposals?

b. If so, then when the court looks back to the three month period prior to the commencement of the proposal process to review payments under s. 95, are the Crown’s deemed trusts disregarded retrospectively pursuant to s. 67 (2) of the BIA as it applies in proposals pursuant to ss. 66 (1) and 101.1 of the BIA?

c. If the CRA is required to refund taxes paid because they are found to have been unjust preferences, will the CRA be able to recover those taxes from secured creditors of the debtor despite the commencement of proceedings under the BIA? If so, is it appropriate to interpret the BIA so that secured creditors would then effectively be funding unsecured creditors’ recovery in face of s. 136 of the BIA that provides that unsecured creditors’ rights are subject to the rights of secured creditors? This brings into issue the correctness of the recent decision of the Federal Court of Appeal in Canada v. Callidus Capital Corporation, 2017 FCA 162

[3] As it turns out however, for the reasons explained below, on the particular facts of this case, none of these issues need to be resolved. Based on the manner by which the insolvent debtor funded its HST payments, the unsecured creditors’ recovery cannot have been affected or prejudiced. There cannot have been a preferential payment in fact no matter what the outcome might be on the issues of law argued. Moreover, as tempting as it may be to embark upon a review of the very interesting legal issues presented, in my view, it is best to decline to do so in obiter dicta.

[4] Therefore the motion is dismissed.

Facts

[5] Edge on Triangle Park Inc. is a debtor in these CCAA proceedings. Edge’s Monitor seeks the return of $12 million that Edge paid to the CRA on account of arrears of HST. The Monitor seeks the payment under s. 95 of the BIA as incorporated into s. 36.1 of the CCAA.

[6] Prior to its failure, Edge was part of the Urbancorp group of companies. The Urbancorp companies are ultimately owned by Mr. Alan Saskin,

[7] Edge developed and built a condominium building in Toronto.

[8] In May, 2015, Edge closed the sales of 590 of the units in the condominium.

[9] On June 30, 2015, Edge reported and became liable to pay HST of at least $12,994,146.02 in respect of those unit sales.

[10] Edge did not pay the HST to the CRA with its June return. It paid approximately $240,000 in early July.

[11] The CRA made efforts to contact Edge and Urbancorp over the summer. Neither Urbancorp nor Edge returned the CRA’s calls.

[12] In September, 2015, the CRA issued a Requirement to Pay to Urbancorp’s operating lender Bank of Montreal. The bank forwarded approximately $900,000 to the CRA on Urbancorp’s behalf.

[13] In the fall, Urbancorp’s representatives told the CRA that Urbancorp was in the final stages of a significant financing transaction that would enable Edge to pay its outstanding tax. At that time Edge made a payment to the CRA of $75,000 to show its good faith.

[14] Urbancorp closed its major financing transaction in Israel in early 2016. Yet Edge still did not pay its outstanding HST liability.

[15] In March, 2016, Urbancorp borrowed $10 million from Terra Firma Capital Corporation specifically to pay a portion of Edge’s HST. The loan documents required Mr. Saskin to contribute additional equity of $2.25 million into Urbancorp and to use the aggregate $12.25 million to pay the CRA in respect of Edge’s HST obligation.

[16] On March 9 and 10, 2016, Edge’s counsel made two payments to the CRA on account of Edge’s HST liability in the total amount of $12 million. Urbancorp had loaned the funds to Edge or directed the use of them on Edge’s behalf supported by appropriate inter-company entries on the books and records of the various Urbancorp affiliates involved.

[17] The Monitor has opined that Edge was insolvent when it made these payments. The CRA did not deliver any evidence or analysis to contest the factual basis for the Monitor’s view. I accept the Monitor’s review of Edge’s books and records and find that Edge was insolvent on a balance sheet basis as at March 9 and 10, 2016.

[18] Edge paid the CRA after Urbancorp had learned that Tarion Warranty Corporation had refused to renew its registrations on other projects. This was a listed cause of Urbancorp’s failure. Therefore, insolvency proceedings may have already been in view at the time that Urbancorp funded Edge’s payment to the CRA.

[19] In light of its insolvency, on April 29, 2016, less than two months after paying the $12 million to the CRA, Edge filed a Notice of Intention to Make a Proposal under s. 50.4 of the BIA. This commenced a proposal proceeding under the BIA that has since been overtaken by this CCAA proceeding.

[20] The inter-company borrowing and payment to the CRA had no real economic effect on Edge. It replaced a tax liability on its balance sheet with a liability owing to its affiliate that had advanced it the money used to pay the CRA. The one key effect of the payment of HST by Edge however, was to reduce Mr. Saskin’s statutory personal liability for the HST as the sole director and officer of Edge under s. 323 of the Excise Tax Act. Generally speaking, that section makes the directors of a corporation jointly and severally liable with the tax debtor corporation for HST arrears.

[21] Mr. Saskin and other entities guaranteed Urbancorp’s new debt to Terra Firma. So, while Mr. Saskin reduced his personal exposure to the CRA by $12 million, he also reduced his risk from being a principal obligor to being a guarantor and he spread the replacement risk among a number of entities some of which provided mortgage security to the new lender.

[22] The Monitor calculates that the CRA has received payment of over 60% of its total tax claims. That is far in excess of the likely recovery of all other unsecured creditors of Edge. The Monitor includes in that calculation the $12 million received by the CRA prior to the commencement of the proposal on the basis that it should be considered as recovery by an unsecured creditor in the proposal.

[23] That is the nub of this case. The Monitor seeks to have the pre-proposal payment treated as a payment to an unsecured creditor for preference review purposes under the BIA.

The Law

[24] The BIA is premised on two fundamental goals or statutory purposes. The first is to provide an honest but unfortunate debtor with a fresh start if possible. The second is to ensure that there is fair sharing among the unsecured creditors of the bankrupt. See: CANADA, SENATE, Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act, Report of the Standing Senate Committee on Banking, Trade and Commerce, 2nd sess., 37th legis.,November 2003.

[25] Control of unjust preferences relates to the second goal. It is important to provide an assurance to unsecured creditors that they are all sharing their losses fairly in order to have them accept the legitimacy of the bankruptcy system and to avoid self-help races to judgment that undermine the fairness and efficacy of the system.

[26] Section 141 of the BIA enshrines the fair sharing goal as follows:

Subject to this Act, all claims proved in a bankruptcy shall be paid rateably.

[27] If one unsecured creditor is paid significantly more than the others, the fairness of the pari passu sharing system can be undermined. As discussed below, unjust preferences are payments made to a creditor with a view to providing that creditor with a level of debt recovery that other creditors do not receive equally. For example, failing debtors often make preferential payments to family members or other parties who are not at arm’s length so as to prefer friendly creditors and disadvantage other, less friendly, creditors. The availability of unequal payments to those who move quickly undermines the willingness of others to participate and wait - perhaps while the debtor is trying to get its affairs in order or to restructure. If creditors can get paid before bankruptcy and obtain a higher recovery than they would by sharing in bankruptcy, they will not support the system. Rather, the creditors will race to implement self-help remedies or just to seek judgments in order to do better for themselves. Creditors who successfully race to judgment also reduce the amount of asset value remaining available for sharing in bankruptcy. It is a lose-lose scenario. Anthony Duggan, and Thomas Telfer “Voidable preferences” in Duggan and Ben-Ishai ed. Canadian Bankruptcy and Insolvency law: Bill C-55, Statue c. 47 and Beyond (Markham Ontario: Lexis Nexus Canada Inc.) 2007

[28] The BIA and other statutes therefore provide for the review of pre-bankruptcy payments made to creditors by insolvent debtors to determine whether the payments were unjust preferences that should be clawed back or otherwise remedied.

[29] There are exceptions of course. For example, s. 136 of the BIA provides that the statutory sharing scheme of the BIA applies only among unsecured creditors. Unsecured creditors’ entitlement to receive distributions from the proceeds realized on the property of a bankrupt is expressly made “[s]ubject to the rights of secured creditors.” That is, secured creditors are entitled to receive the proceeds realized on their secured collateral before any payments are made from those proceeds to unsecured creditors. Generally speaking therefore, payments made by a debtor to a ranking secured creditor are not seen as preferential, regardless of the payer’s intention, because the ranking secured creditor would be entitled to receive the payment in priority to the unsecured creditors even in a bankruptcy proceeding in any event. Payments to ranking priority creditors do not prejudice unsecured creditors’ comparative recovery in bankruptcy. They never can obtain funds that are pledged to a secured creditor. Payments to secured creditors who rank first in priority therefore do not create an economic incentive to unsecured creditors to lose faith in the statutory scheme or to race to judgment.

[30] It is on this basis that the CRA says that it is entitled to succeed in this case. It says that it had priority under its deemed trusts at the time it was paid and that ends the matter. It says that the subsequent reversal of its priority in bankruptcy is not retrospective to catch the payments in a later look-back under s. 95. In Andrews (Trustee of) v Minister of National Revenue, 2011 MBCA 93, the Manitoba Court of Appeal disagreed with a very similar argument.

[31] The argument on the merits is outlined in the three issues posed at the outset of these reasons. It requires a fairly detailed and complex analysis of the 1992 and 1997 amendments to the BIA and the Excise Tax Act and consideration of how Parliament intended them to operate together along the lines discussed in Century Services Inc. v. Canada Attorney General, 2010 SCC 60. At the end of the day however, the outcome of that analysis makes no difference. Even if the Attorney General’s argument is incorrect and there is a look-back on the basis that the payments by Edge to the CRA ought to be considered without regard to the Crown’s deemed trust, they still could not have been a preference factually.

[32] As noted above, Edge’s payment to the CRA was economically neutral to Edge. It replaced one liability owing to one creditor with the exact same liability owing to another. The recovery of unsecured creditors was not prejudiced by $1 by the inter-company loan of funds into Edge and the subsequent payment to the CRA.

[33] At its most basic conceptualization, “[a] preference occurs when an insolvent debtor pays one or more creditors at the expense of other creditors.” Houlden, Morawetz, and Sarra, Bankruptcy and Insolvency Analysis The Bankruptcy and Insolvency Act, Bankruptcy and Insolvency Law of Canada, 4th ed., WestlawNext Canada, at F§201. [Emphasis added]

[34] The loan from Terra Firma to Urbancorp was expressly conditioned on the funds being used to pay HST. Neither Edge nor its unsecured creditors had any basis to expect to receive those funds or for the funds to fall into Edge’s assets generally. As noted above, the loan and payment transactions had no economic effect at all on Edge or its unsecured creditors. No one argued whether there might have been a Quistclose trust or a similar analogy to keep beneficial title to the funds away from Edge. Were the funds to fall into Edge’s general estate, they would not be remedying prejudice caused by a preferential payment. Rather they would be a windfall enhancing the unsecured creditors’ recovery at the expense of the CRA and Terra Firma.

[35] If in March, 2016, the unsecured creditors understood that the loan and HST payment were about to be made, they had no added incentive to bankrupt Edge. They would suffer no prejudice that might lead them to race to judgment or otherwise to lose faith in the fairness of the bankruptcy system. Nor would the overall pot of assets or their respective shares of Edge’s assets be diminished. Put simply, while the payment might have preferred the CRA in the vernacular and one might question the corporate appropriateness of the overall transaction whose purpose seems to have been to protect the shareholder rather than the companies, the transactions caused no prejudice to creditors and caused none of the mischief that preference regulation is designed to prevent.

[36] Even accepting for the purposes of argument then, that the Monitor is correct that the assessment under s. 95 is made without regard to the Crown’s deemed trusts, the payments to the CRA in March, 2016 still did not prefer the CRA at the expense of the unsecured creditors at all.

[37] The motion is dismissed. The CRA sought costs of $6,000 which is more than reasonable in the circumstance. The Monitor therefore is to pay costs to the CRA of $6,000 all-in.

F.L. Myers J.

November 30, 2017