Susan L. Philpott

The Monitor in a CCAA proceeding sought court approval for a complex transaction involving a reverse vesting order (RVO) structure for the sale of electricity generation facilities of the Validus Entities to Macquarie and Far North Power Corp. The motion also requested the addition of a new entity (Residualco) as a debtor, approval of the Monitor's reports and fees, and an extension of the stay period.

The court granted all requested relief, finding the transaction commercially reasonable and in the best interests of stakeholders, particularly due to the highly regulated nature of the business which made an RVO necessary to preserve numerous permits and licenses.

The court also confirmed the appropriateness of the releases granted to various parties involved in the restructuring.

In the CCAA proceedings of Laurentian University, the applicant sought an order regarding a Compensation Claims Process.

On consent, the court deferred relief related to Third Party RHBP Claims to a subsequent hearing, ordering that the deadlines and procedures in the Compensation Claims Process Order would not apply to those claims at this time.

The remaining unopposed relief was granted.

The Court of Appeal for Ontario refused leave to appeal a sealing order issued by a CCAA supervising judge in the Laurentian University insolvency proceedings.

The moving parties, including faculty unions, sought access to confidential documents (letters between Laurentian and the Ministry of Colleges and Universities) that were sealed to protect restructuring efforts.

The Court applied the Sierra Club test for sealing orders and the four-factor test for leave to appeal in CCAA cases, finding the proposed appeal was not prima facie meritorious, would unduly hinder the time-sensitive restructuring, and was not of sufficient significance to the action.

The court emphasized deference to the supervising judge's discretion in complex CCAA matters.

This supplementary endorsement addresses a challenge to a sealing order granted in the Companies’ Creditors Arrangement Act (CCAA) proceedings of Laurentian University of Sudbury.

The sealing order covered confidential correspondence between the University and the Ministry of Colleges and Universities, which Laurentian University argued contained sensitive information that, if disclosed, could jeopardize its restructuring efforts.

Parties opposing the sealing order contended there was no evidentiary basis for it.

Applying the two-branch test from Sierra Club of Canada v. Canada (Minister of Finance), the court found that the disclosure posed a real and substantial risk to the University's future viability, that the "commercial" interest extended to the broader community, and that no reasonable alternatives existed given ongoing mediation.

Consequently, the court maintained the confidentiality of the exhibits and the existing sealing order.

Self-represented long-term disability beneficiaries sought leave to appeal a sanction order from the Superior Court of Justice in the Nortel Networks CCAA proceedings.

The applicants challenged their binding status under the 2009 Representation Order for Disabled Employees and the 2010 Employee Settlement Agreement.

The Court of Appeal dismissed the motion for leave to appeal, finding that the stringent test for leave in CCAA proceedings was not met.

The proposed appeal lacked merit, the applicants were bound by the settlement agreement, and further delays in the protracted litigation were to be avoided.

The court also rejected a late-filed notice of constitutional question challenging sections 6(1) and 11 of the CCAA.

The Monitor in the CCAA proceedings of Nortel Networks Corporation brought a motion to pass its accounts and those of its legal counsel for the period from January 2009 to May 2016.

The fees sought totaled over $250 million CAD and USD combined.

The court applied the Belyea factors to assess the fairness and reasonableness of the fees.

Despite the unprecedented size of the fees, the court found them justified given the massive scale, complexity, and duration of the cross-border insolvency, the extraordinary powers granted to the Monitor, and the highly successful results achieved for the Canadian estate.

The accounts were approved in full.

In a CCAA proceeding, a group of employees moved for appointment as court-appointed representatives for non-opt-out employees in the insolvency proceedings.

The Initial Order had already appointed representative counsel and required a process to identify up to seven employee nominees.

The court accepted that the proposed representatives reflected different employee roles and regions across Canada, noted the support of the applicants and monitor, and granted the motion.

The moving parties sought leave to appeal an order approving a settlement in the CCAA proceedings of Nortel Networks.

The Court of Appeal denied leave, finding no procedural or substantive unfairness in the settlement.

The motion judge had carefully balanced the various interests at stake and made no demonstrable error.

The moving parties, Objecting LTD Beneficiaries, sought an order expediting their motion for leave to appeal and consolidating the leave motion with the appeal itself.

The responding parties consented to expediting the leave motion but opposed consolidation.

The court agreed with the responding parties, finding no urgency requiring consolidation as benefits continued until the end of the year.

A schedule for the expedited leave motion was approved.

The Ontario Pension Board requested a hearing regarding a proposal by the Superintendent of Financial Services to order the Board to pay Victor Burns his full pension benefits retroactive to his retirement from the Ontario Provincial Police.

Mr. Burns had terminated his employment with the OPP and commenced employment with the Ottawa-Carleton Regional Police Services during a period when police services were being transferred between the two entities.

The Tribunal found that Mr. Burns' new employment was in conjunction with the disposition of police services, meaning section 80(3) of the Pension Benefits Act applied.

Consequently, his employment was deemed not to be terminated, and he was not entitled to commence receiving a pension on the date he ceased employment with the OPP.

The Superintendent's proposal was quashed.

The applicants, former employees of the Ministry of Finance, were transferred to the Ontario Property Assessment Corporation (OPAC) when the Ministry's property assessment functions were transferred.

At the time of the transfer, both applicants were eligible to retire under the 'Factor 80' provisions of their respective pension plans and sought to receive their pension benefits while continuing to work for OPAC.

The Superintendent of Financial Services refused to order the pension plan administrators to pay the benefits, finding that under section 80 of the Pension Benefits Act, the transfer constituted a sale of a business and the applicants' employment was deemed not to have been terminated.

The Financial Services Tribunal affirmed the Superintendent's decision, holding that the applicants could not receive pension benefits without actually terminating their employment with the successor employer.

The appellant contractor sought judicial review of an Ontario Labour Relations Board decision upholding a union grievance.

The appellant alleged a breach of natural justice because a draft decision dismissing the grievance was changed to uphold it after a full board meeting.

The Supreme Court of Canada dismissed the appeal, holding that institutional consultation does not breach natural justice provided it is limited to questions of policy and law, and the adjudicators remain free to decide.

The Court found no evidence that factual matters were improperly discussed at the full board meeting, and the change in the decision concerned a matter of law and policy regarding the abandonment of bargaining rights.

The respondent, Sears Canada Inc., brought a motion for costs against the Ontario Human Rights Commission following a decision that found the respondent had accommodated the complainant's disability after initial discrimination.

The respondent argued the complaint was trivial, frivolous, vexatious, or made in bad faith, and caused undue hardship.

The Board of Inquiry dismissed the motion, finding that the Commission had a factual basis for proceeding and did not act in bad faith or cause undue hardship.

During a hearing for an unfair labour practice complaint, the applicant union sought to cross-examine the employer's former solicitor regarding communications with the employer about an alleged plan to contract out delivery services.

The employer objected on the basis of solicitor-client privilege.

The union argued that the privilege had been waived by the employer calling the solicitor as a witness, or alternatively, that the communications fell under the crime or fraud exception.

The Board upheld the objection, finding that the employer had only waived privilege with respect to a specific settlement discussion, and that the crime or fraud exception did not extend to alleged breaches of the Labour Relations Act.

The applicant union applied for certification to represent a bargaining unit of hotel employees, specifically excluding front desk staff.

The respondent employer opposed the exclusion, arguing that it would cause serious labour relations problems due to fragmentation and the cross-utilization of front desk staff for housekeeping and food service tasks.

Applying the Hospital for Sick Children test, the Ontario Labour Relations Board found the proposed unit appropriate, concluding that the employer's concerns about jurisdictional disputes and strike complications were speculative and could be accommodated in collective bargaining.

A certificate was issued to the applicant, with one Board Member dissenting on the basis that excluding front desk staff would unduly fragment labour relations.

The applicant union filed a grievance against the respondent general contractor alleging a breach of a subcontracting clause after work was subcontracted to a company bound only to the intervener union.

The issue was whether these circumstances constituted a jurisdictional dispute under section 93(1) of the Labour Relations Act, even though the applicant did not directly demand the work from the subcontractor.

The Board held that the grievance itself, communicated to the subcontractor, constituted a demand for the work in practical terms.

The Board concluded it had jurisdiction to entertain the matter as a jurisdictional dispute.

The applicant union sought a declaration under section 1(4) of the Labour Relations Act that the respondents constituted one employer and were bound by certain collective agreements.

The Board found that the initial voluntary recognition agreement was valid and not the result of improper employer support.

Applying the criteria for a related employer declaration, the Board concluded that the entities were under common control and direction and engaged in related business activities in the electrical contracting industry.

The Board granted the section 1(4) declaration, binding the respondents to the Electricians Provincial Agreement and the high-rise residential appendix, but declined to bind them to the low-rise residential agreement as the union lacked bargaining rights for that work.