COURT FILE NO.: CV-21-00673304-00CL
DATE: 20211216
SUPERIOR COURT OF JUSTICE – ONTARIO
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 HARTE GOLD CORP.
(Applicant)
BEFORE: L. A. Pattillo J.
COUNSEL: See attached Appendix “A”
HEARD by Videoconference: December 16, 2021
ENDORSEMENT
[1] On December 7, 2021, I issued an Initial Order in this application granting the applicant, Harte Gold Corp., protection under the Companies Creditors Arrangement Act (CCAA). The Order provided, among other things, a stay of proceedings for an initial period of 10 days against or in respect of the applicant, its property or business or its directors and officers; appointed FTI Consulting Canada Inc. (FTI) as the Monitor of the applicant; approved a DIP Financing Agreement and borrowing an initial amount thereunder during the initial stay period; and security for the borrowing in the form of a DIP Lenders Charge as well as an Administration Charge and a Directors Charge.
[2] The comeback hearing was set before me for today’s date. There were in excess of 40 counsel and observers in attendance. In addition to seeking an Amended and Restated Initial Order, the applicant sought approval for a sale and investment solicitation process (SISP) facilitated by a Stalking Horse Bid from the DIP Lender as well as increasing the amount which may be borrowed by it under the DIP Loan Agreement.
[3] Notwithstanding that the motion has been scheduled for nine days, I did not receive the applicant’s material in support of the motion until 4:454 pm and the Monitor’s First Report until 10:45 pm yesterday evening. Given the hearings I had yesterday and today, in addition to the application, there was simply not enough time to properly prepare for today’s hearing.
[4] Late filings are a chronic problem on the Commercial List. Not only are they unfair to the court in providing little or no time to prepare, they are unfair to all of the stakeholders for the same reason. The result is potentially a hearing that may not properly consider all of the relevant issues arising from the granting of the order requested.
[5] The court has repeatedly raised its concerns with late filing with the commercial list bar but the problem continues to persist. While counsel apologize and offer excuses as to why the material is late, that does not correct the problem. In my view, it is only when there are consequences with late filing that the direction will be observed and obeyed.
[6] Accordingly, I adjourned the applicant’s come-back motion to December 21, 2021. In addition, I extended the stay to that date and, based on the cash flow projections, provided by the Monitor, increased the applicant’s authorization to borrow under the DIP Financing Agreement for an additional $2.1 million resulting in an aggregate amount of $2.5 million in order the maintain the business.
[7] I wish to make it clear that late filings will be continued to be accepted in respect of emergency matters. What is not permitted is late filings in respect of applications or motions previously scheduled. In such situation, counsel are forewarned their matter could be adjourned to the next available date which may not coincide with their client’s requirements.
L.A. Pattillo J.
Date: December 16, 2021
Appendix “A”
Court File No. CV-21-00673304-00CL
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 HARTE GOLD CORP.
(Applicant)
COUNSEL SLIP (DECEMBER 16, 2021)
STIKEMAN ELLIOTT LLP
Guy P. Martel
5300 Commerce Court West
Tel: (514) 397-3163
199 Bay Street
Email: GMartel@stikeman.com
Toronto, ON
Canada M5L 1B9
Danny Duy Vu
Tel: (514) 397-6495
Email: DDVu@stikeman.com
Counsel to the Applicant
William Rodier-Dumais
Tel: (514) 397-3298
Email: wrodierdumais@stikeman.com
Lee Nicholson
Tel: (416) 869-5604
Email: leenicholson@stikeman.com
Ben Muller
Tel: +1 416 869 5543
Email: BMuller@stikeman.com
GOODMANS LLP
Joseph Pasquariello
Bay Adelaide Centre – West Tower
Tel: (416) 597-4216
333 Bay Street, Suite 3400
Email: jpasquariello@goodmans.ca
Toronto, ON
Canada M5H 2S7
Chris Armstrong
Tel: (416) 849-6013
Email: carmstrong@goodmans.ca
Counsel to the Court-appointed Monitor
Andrew Harmes
Tel: (416) 849-6923
Email: aharmes@goodmans.ca
THORNTON GROUT FINNIGAN LLP
100 Wellington Street West, Suite 3200
P. O. Box 329, Toronto-Dominion Centre Toronto, ON
Canada, M5K 1K7
Independent Counsel to the Board of Directors of the Applicant
Leanne M. Williams
Tel: (416) 304-0060
Email: lwilliams@tgf.ca
OSLER, HOSKIN & HARCOURT LLP
Marc Wasserman
1 First Canadian Place
Tel: (416) 862-4908
100 King St West
Email: mwasserman@osler.com
Suite 6200, P.O. Box 50
Toronto, ON
Kathryn Esaw
Canada M5X 1B8
Tel: (416) 862-4905
Email: kesaw@osler.com
Counsel to 1000025833 Ontario Inc.
Dave Rosenblat
Tel: (416) 862-5673
Email: drosenblat@osler.com
Bay Adelaide Centre
333 Bay Street, Suite 2400
P.O. Box 20 Toronto, ON Canada M5H 2T6
Stuart Brotman
Tel: (416) 865-5419
Email: sbrotman@fasken.com
Daniel Richer
Tel: (416) 865-4445
Email: dricher@fasken.com
Counsel to BNP Paribas
66 Wellington St W. Suite 5300 Toronto, ON Canada M5K 1E6
Sean Collins
Tel: (403) 260-3531
Email: scollins@mccarthy.ca
Walker W. MacLeod
Tel: (403) 260-3710
Email: wmacleod@mccarthy.ca
Counsel to Appian Capital Advisory LLP, 2729992 Ontario Corp., ANR Investments B.V. and AHG (JERSEY) LIMITED
TORYS LLP
79 Wellington Street West
Suite 3000 Toronto, Ontario M5K 1N2
Counsel to OMF Fund II SO Ltd.,Orion Resource Partners (USA) LP and their affiliates
David Bish
Tel: (416) 865-7380
Email: dbish@torys.com
WISHART LAW FIRM LLP
Barristers and Solicitors 390 Bay Street, 5th Floor
Sault Ste. Marie, ON P6A 1X2
Orlando M. Rosa LSO #23216U
Email: orosa@wishartlaw.com
Gordon P. Acton LSO #20252C
Email: gacton@wishartlaw.com
Counsel to Netmizaaggamig Nishnaabeg First Nation (Pic Mobert First Nation)
Tel: (705) 949-6700
OBSERVING
FTI CONSULTING CANADA INC.
Nigel Meakin
TD South Tower,
Tel: (416) 649-8065
79 Wellington Street West
Email: nigel.meakin@fticonsulting.com
Toronto Dominion Centre, Suite 2010
P.O. Box 104,
Dean Mullett
Toronto, ON
Tel: (416) 816 0733
Canada M5K 1G8
Email: dean.mullett@fticonsulting.com
Jeffrey Rosenberg
Court-appointed Monitor
Tel: (416) 649 8073
Email: jeffrey.rosenberg@fticonsulting.com
HARTE GOLD CORP.
TD Canada Trust Tower 11 Bay Street
Suite 2400 Toronto, ON M5J 2S1
Frazer Bourchier
Tel: (416) 368-0999
Email: fbourchier@hartegold.com
The Applicant
729992 ONTARIO CORP.
Appian Natural Resources Fund II (Affiliates of Appian Capital Advisory LLP) 5th Floor, 45 Pall Mall
London SW1Y 5JG United Kingdom
Winta Jarvis
Email: wjarvis@appiancapitaladvisory.com
Geoffrey Cohen