Sidney David Brejak

The defendant in a proposed class action moved under s. 29.1 of the Class Proceedings Act, 1992 to dismiss the action for delay, on the basis that the plaintiff failed to file a final and complete certification motion record within one year of commencing the action.

The plaintiff filed a certification record three days after the one-year deadline and, in any event, the record was incomplete as it contained no litigation plan — an indispensable requirement under s. 5(1)(e)(ii) of the CPA.

The plaintiff also moved to amend the Statement of Claim and substitute two new representative plaintiffs, but both proposed plaintiffs demonstrated no meaningful understanding of or engagement with the litigation plan requirement, effectively leaving counsel to litigate on his own.

The Court of Appeal had definitively eliminated any judicial discretion to relieve parties of the strict requirements of s. 29.1.

The motion to dismiss was granted; the motion to amend and substitute was denied.

This endorsement grants, with one exception, the relief sought by the Receiver in the receivership of Antibe Therapeutics Inc., including approval of a sale transaction with Taro Pharmaceuticals Inc. via a reverse vesting order.

The court finds the transaction and process fair, maximizes value for stakeholders, and preserves key tax and intellectual property attributes.

The only relief not granted is the proposed interim distribution to unsecured creditors, as the court is not satisfied that sufficient information exists regarding unresolved claims and holdbacks.

The court provides guidance for a future motion once these issues are resolved.

The Court-appointed Receiver of Antibe Therapeutics Inc. brought a motion seeking approval for a Sale Process Order, a Claims Procedure Order, and an Ancillary Order.

The Ancillary Order included approval of the Receiver's First Report, its activities, and its fees and disbursements, as well as the recognition and enforcement of an Arbitral Award rendered in favour of Nuance Pharma Ltd. The court granted all requested relief, finding the proposed sale process appropriate, the claims procedure fair and transparent, and the Receiver's activities and fees reasonable.

The Arbitral Award was recognized as binding and enforceable under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Model Law, as adopted by Saskatchewan legislation, given that the award debtor acknowledged its finality.

Antibe Therapeutics Inc. (Antibe) commenced CCAA proceedings seeking a stay extension, while Nuance Pharma Ltd. (Nuance), Antibe's largest creditor, sought termination of the CCAA and appointment of a receiver, along with a declaration of constructive trust over funds.

The court found Antibe's CCAA application to be a defensive tactic with no realistic restructuring plan.

Given the unique circumstances, including Antibe's core business (a drug) being far from commercialization and the arbitral finding of Antibe's deliberate misrepresentation, the court terminated the CCAA proceeding and appointed a receiver over Antibe's property.

The court declined to rule on Nuance's trust claim at this stage.