Court File and Parties
Court File No.: CV-23-00700581-00CL Date: 2024-03-06 Ontario - Superior Court of Justice – Commercial List
In the Matter of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-25, as amended And in the Matter of a Plan of Compromise or Arrangement of Fire & Flower Holdings Corp., Fire & Flower Inc., 13318184 Canada Inc., 11180703 Canada Inc., 10926671 Canada Ltd., Friendly Stranger Holdings Corp., Pineapple Express Delivery Inc., and Hifyre Inc, Applicants
Re: Fire & Flower Holdings Corp., et al., Applicants
Before: Peter J. Osborne J.
Counsel: Maria Konyukhova and Philip Yang, for the Applicants Nick de Koning and Alexander David, for Foad Ettehadolhagh et al. Leanne Williams, for the Monitor Bianca Zimperi, for S. Seibert Anna Lourina, for Pineapple Express Delivery and Patrick Stevenson Patrick Corney, for 2759054 Ontario Inc. (Purchaser)
Heard: March 6, 2024
Endorsement
[1] This case conference was requested by 2759054 Ontario Inc., the Purchaser of the business of Fire & Flower Inc., to seek directions with respect to the interpretation of the vesting order made in this CCAA proceeding as it relates to a pre-filing personal injury claim arising out of a tragic motor vehicle accident.
[2] That motor vehicle accident resulted in two related outstanding personal injury actions commenced in this Court sitting at Kitchener, Ontario, against an affiliate of F&F, which action was stayed by the initial order in this CCAA proceeding.
[3] The Plaintiffs in those personal injury actions have now advised that they intend to continue the action. Initially, there was a dispute between the parties about the interpretation of the vesting order and, in particular, whether this personal injury litigation was an “Excluded Claim” as defined in the vesting order and if so, whether that motion should be brought to the Commercial List as the supervising CCAA court, or to this Court sitting at Kitchener, where the personal injury actions were commenced.
[4] The parties are now agreed that, if a motion is necessary, it should proceed in this Court, as the supervising CCAA court that made the order the interpretation of which is determinative of the motion. Our courts, and in particular the Supreme Court of Canada has repeatedly affirmed the role of a supervising judge in CCAA proceedings to address all matters relating to those proceedings: 9354-9186 Quebec Inc. v. Callidus Capital Corp., 2020 SCC 10 at para. 47.
[5] Moreover, this approach is consistent with the equally oft-repeated objectives of the one court model generally, which is intended to promote judicial efficiency, expediency and consistency. Finally, it is also consistent with the strong preference (with good reason) that an issue regarding the interpretation of a court order should whenever possible be determined by the judge who made that order: Meo & Associates v. Gottenu Developments Ltd., 1997 CarswellOnt 1790, 37 O.T.C. 4, 70 A.C.W.S. (3d) 907.
[6] In this case, the parties have had cooperative discussions just prior to this case conference. The plaintiffs in the two related personal injury actions are agreed substantively that their recoveries, if any, will be limited to the available proceeds of applicable general liability insurance policies, and there will be no claims advanced for damages above available insurance proceeds against either ResidualCo (F&F) or the Purchaser. They further agree that what they will be seeking is an order lifting the stay for that limited purpose, rather than an order to continue pursuant to Rule 11.
[7] The parties are continuing to work collaboratively on language which can hopefully be included in a consent order to reflect the above and preserve the rights of the plaintiffs in the personal injury actions so that those actions can continue in the ordinary course in Kitchener.
[8] I advised the parties at the conclusion of this Case Conference that if they required further assistance, whether in terms of a consent order or further relief, I may be spoken to.