Court File and Parties
Court File No.: CV-24-00719237-00CL Date: 2024-06-24 Ontario - Superior Court of Justice – Commercial List
In the Matter of an Application Under Section 101 of the Courts of Justice Act
Re: Nuance Pharma Ltd., Applicant And Antibe Therapeutics Inc., Respondent
Before: Peter J. Osborne J.
Counsel: Rebecca Kennedy and Ines Ferreira, Counsel for the Receiver, FTI Consulting Canada Inc. Mathew Gottlieb, Counsel for the Respondents, Romer Directors: Flower, Hoffman, Khouri, MacNee and McNealy, Wu Jesse Mighton and Sidney Brejak, Counsel for the Applicant, Nuance Pharma Ltd. Jim Robinson and Jonathan Joffe, FTI Consulting Canada Inc. Danny Nunes, Lotus Clinical Research LLC Alan Merskey, Counsel for Employees / Former Employees
Heard: June 24, 2024
Endorsement
[1]
Relief Sought
The Court-appointed Receiver of Antibe Therapeutics Inc. moves for various relief including:
a. a Sale Process Order approving a SISP and related relief;
b. a Claims Procedure Order approving the claims procedure and authorizing the Receiver to immediately commence same; and
c. an Ancillary Order:
i. approving the First Report of the Receiver dated June 18, 2023, the activities of the Receiver set out therein, and approving the fees and disbursements of the Receiver and its counsel; and
ii. recognizing and enforcing the Arbitral Award rendered on February 27, 2024 in favour of Nuance Pharma Ltd., pursuant to Article III of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as adopted by The Enforcement of Foreign Arbitral Awards Act, 1996, SS 1996, c. E-9.12 and Article 35 of the UNCITRAL Model Law on International Commercial Arbitration as adopted by The International Commercial Arbitration Act, SS 1988-89, c. I-10.2.
2The Service List has been served. The relief sought today is unopposed. Defined terms in this Endorsement have the meaning given to them in the motion materials, including but not limited to the First Report, unless otherwise stated.
3The background for, and context of, this motion is set out in my earlier Endorsements made in this proceeding, and in the First Report.
[4]
Sale Process Order
I am satisfied that the Sale Process Order should be granted. The proposed sale process, to be conducted by and under the supervision of the Court-appointed Receiver, is appropriate and adequate in the circumstances. It must be assessed as against the factors to be taken into account in the consideration of a motion for approval of a proposed sale, and those factors are satisfied here: Royal Bank v. Soundair.
5The proposed process is fully set out in the materials, and I am satisfied it will provide any and all potential bidders, with sufficient time to consider and bid on the Property to be sold. This process, including the necessary time to complete same, is balanced as against the need to have the process completed as quickly as reasonably possible to minimize carrying costs and maximize the outcome for all stakeholders.
[6]
Claims Procedure Order
I am also satisfied that the Claims Procedure Order should be approved. It is important to identify the universe of potential claims to advance this matter. The Drug is on hold by the FDA, as a result of which Antibe is not operating since the Drug is its only major asset.
7The Receiver states in the First Report that there ought to be, according to presently available facts, a distribution available to unsecured creditors, with the result that it is appropriate for the Receiver to call for Claims and administer the Claims Procedure concurrently with the Sale Process to ensure an orderly and efficient distribution process to be carried out once any Transaction that the Sale Process may yield has closed, all subject to unforeseen developments.
8The proposed Claims Procedure is fair, open and transparent and consistent in all material respects with similar claims processes approved by the Commercial List, and I am satisfied that it provides for the identification and resolution or determination of Claims which will in turn benefit all stakeholders. In particular, the proposed Claims Bar Date provides a sufficient opportunity for parties to file a Proof of Claim with the Receiver should they choose to do so.
[9]
Approval of First Report and Fees
I am further satisfied that the First Report, together with the activities of the Receiver set out therein, should be approved. The activities are appropriate, reasonable, and are consistent with the mandate given to the Receiver by this Court in the original appointment order. I have also reviewed the Fee Affidavits and I am satisfied that the fees and disbursements of the Receiver and its counsel are reasonable and should be approved: Bank of Nova Scotia v. Diemer. They relate directly to the completion of the activities set out in the First Report referred to immediately above.
[10]
Recognition of Arbitral Award
Finally, I am satisfied that the Arbitral Award should be recognized. Article III of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as adopted by The Enforcement of Foreign Arbitral Awards Act, 1996, SS 1996, c. E-9.12, recognizes arbitral awards as binding among Contracting States and provides that they are to be enforced in accordance with the rules of procedure of the territory where the award is relied upon, subject to certain enumerated conditions.
11Article 35 of the UNCITRAL Model Law on International Commercial Arbitration as adopted by The International Commercial Arbitration Act, SS 1988-89, c. I-10.2 recognizes arbitral awards as binding, irrespective of the country in which the award was made, upon application to this Court. Here, Antibe has acknowledged that it does not dispute the Arbitral Award and has accepted it as final and binding.
12For these reasons, I am satisfied that the Arbitral Award should be recognized by this Court pursuant to The International Commercial Arbitration Act.
[13]
Disposition
Orders to go in the form signed by me today which have immediate effect without the necessity of issuing and entering.
Osborne J.