Trevor A. Courtis

The Monitor of The Cash Store Financial Services Inc. and related entities brought a motion seeking an extension of a stay of proceedings to October 25, 2024, under the Companies’ Creditors Arrangement Act.

The Monitor's Thirty-Third Report detailed the status of remaining estate actions and confirmed sufficient liquidity to fund activities.

The motion was unopposed and granted, with the court satisfied that the parties were acting in good faith and with due diligence.

This endorsement concerns three tobacco companies (JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc.) operating under the Companies’ Creditors Arrangement Act (CCAA).

Each applicant sought an extension of their stay period until September 30, 2024, to continue formulating plans of arrangement.

Imperial also requested authorization to terminate a retirement plan and post security for a vaping product license.

RBH sought a procedural amendment for employee grievances.

The court, finding no opposition and satisfied with the applicants' good faith, diligence, and sufficient resources, granted all requested relief, noting significant progress in ongoing mediation.

This endorsement concerns the Companies' Creditors Arrangement Act (CCAA) proceedings for JTI-MacDonald Corp., Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, and Rothmans, Benson & Hedges Inc. The court granted an unopposed motion to extend the stay period until March 29, 2024.

Recognizing the complexity and the four-and-a-half-year duration of negotiations, the court directed the three court-appointed Monitors, in conjunction with the court-appointed Mediator, to collaborate and develop comprehensive Plans of Compromise or Arrangement.

The objective is to finalize plans that are fair and reasonable to all applicants and creditors, moving from observable activity to meaningful action.

The Mizrahi Defendants sought to stay or dismiss the action brought by 2694128 Ontario Inc. under Rules 21.01(3)(d) or 25.11 of the Rules of Civil Procedure or s. 106 of the Courts of Justice Act, arguing that contractual preconditions for the action had not been met.

Specifically, they contended that 2694128 Ontario Inc. could only demand repayment if CERIECO had made a demand under a separate Supplier Credit Agreement (SCA), and that CERIECO was precluded from doing so by a Standstill Provision in a Subordination Agreement.

The court found that while 2694128 Ontario Inc. had made a demand for repayment, it was not plain and obvious that CERIECO's prior demands for repayment under the SCA were invalid or prohibited by the Standstill Provision.

The court determined that the interpretation of the interrelated agreements required a deeper analysis of the factual matrix, which is not suitable for a preliminary motion.

Consequently, the motion to stay or dismiss the action was dismissed.

The applicant, Growthworks Canadian Fund Ltd. (the Fund), sought an order in CCAA proceedings that its former manager, Growthworks WV Management Ltd. (the former manager), as the sole Class C shareholder, was not entitled to further dividends or payments upon the Fund's dissolution.

The former manager claimed entitlement to $672,390.61 as an incentive payment (IPA payment) on dissolution, arguing it was a debt or payable under specific share conditions.

The court dismissed the former manager's claim, finding the payment was not a debt and that the conditions for payment under the Class C share articles, specifically the performance tests, were not met as of the dissolution date due to the Fund's negative annualized rate of return.

The Monitor brought an unopposed motion for an order extending the Stay Period under the Companies' Creditors Arrangement Act to November 18, 2023.

The court found that the parties were working in good faith and with due diligence, and that the applicants had sufficient liquidity.

To ensure supervision over ongoing litigation regarding documentary production, the court granted the stay extension to April 3, 2023, rather than the requested date.

Following a successful application regarding a restructuring support agreement, the applicants sought full indemnity costs of approximately $1.18 million based on a contractual covenant.

The respondents argued for partial indemnity costs.

The court held that while the contractual provision for full indemnity was an important factor, it did not override the court's discretion to fix an amount that is fair and reasonable.

Finding the hours docketed by the applicants' counsel excessive for a one-issue case, the court awarded a global all-inclusive costs amount of $800,000.

The applicants sought a declaration regarding the interpretation of the 'Outside Date' in a restructuring support agreement.

The respondent, a cannabis company, argued that any extension of the Outside Date required its initiation or consent.

The court found that the plain and ordinary meaning of the agreement allowed the lenders to automatically extend the Outside Date upon their written consent, acting reasonably, without the need for the respondent's consent.

The court granted the declaration sought by the applicants.

The proposed intervener, a shareholder of the respondent corporation and leader of an investor group, brought a motion for leave to intervene as an added party in an application concerning the extension of an outside date for a recapitalization transaction.

The court dismissed the motion, finding that the proposed intervener's financial interest in the outcome did not constitute a direct interest in the subject matter of the private commercial dispute.

Furthermore, the court held that the proposed intervener's intended evidence regarding foreign regulatory law would not make a useful contribution to the resolution of the proceeding.

The Applicants, licensed cannabis producers, sought court approval and sanction of their second amended and restated plan of compromise and arrangement under the CCAA.

The Plan aimed to implement a settlement framework for multiple securities class actions arising from the Applicants' illegal cannabis growing operations.

While the court found the Allocation and Distribution Scheme reasonable and rejected KPMG's complaint about being excluded from voting, it refused to sanction the Plan.

The court held that the Plan's provisions regarding the assignment of claims against KPMG and the Judgment Reduction Provision in the Bar Order were not fair and reasonable to the non-settling defendants, as they failed to limit the non-settling defendants' liability to several liability.

The appellant, an undischarged bankrupt, sought an extension of time to file a notice of appeal from a lower court order that declared his debts would survive bankruptcy and lifted a stay of proceedings.

The respondent opposed the extension, arguing there was no right to appeal without leave and that the appeal lacked merit.

The respondent also brought a cross-motion for security for costs.

The Court of Appeal granted the extension of time, finding that the appellant had a right to appeal under sections 193(c) and 193(a) of the Bankruptcy and Insolvency Act, and that the proposed appeal had arguable merit.

The court dismissed the respondent's cross-motion for security for costs, concluding that the "other good reason" test under Rule 61.06(1)(c) of the Rules of Civil Procedure was not met, given the appellant's impecuniosity and the arguable merit of the appeal.

The moving parties, a syndicate of six banks, sought to partially lift an automatic stay of a bankruptcy order pending appeal under s. 195 of the Bankruptcy and Insolvency Act.

The banks argued that the appellant was frustrating the bankruptcy process and might dissipate her assets.

The court found that the appellant's grounds of appeal were extremely weak and that maintaining the stay would prejudice the banks by preventing the trustee from identifying and preserving assets.

The court granted the motion, partially lifting the stay to allow the trustee to exercise specific powers under the BIA.

The applicants sought to extend an interim Mareva injunction restraining the United Republic of Tanzania from removing a newly purchased aircraft from Ontario, pending an application to recognize and enforce an international arbitral award.

Tanzania opposed the extension, arguing sovereign immunity, lack of full disclosure, and failure to meet the Mareva test.

The court rejected Tanzania's arguments, finding that by signing a Bilateral Investment Treaty and agreeing to UNCITRAL rules, Tanzania consented to interim measures.

The court extended the injunction, holding that the applicants had a strong prima facie case and the balance of convenience favoured them.

The plaintiffs, two major banks, sued to recover funds wired to the defendant money services business as a result of a fraud perpetrated by third parties.

The defendant brought a motion for summary judgment, arguing it received the funds without knowledge of the fraud and changed its position in good faith by arranging equivalent payments in Chinese yuan to a foreign account.

The court dismissed the motion, finding genuine issues for trial regarding whether the defendant actually changed its position in good faith, given conflicting expert evidence on its anti-money laundering compliance and the lack of direct evidence regarding the foreign exchange transactions.

The plaintiff brought a motion to certify a class action against Toyota for settlement purposes regarding defective Takata airbag inflators.

The court reviewed the five-part test under section 5 of the Class Proceedings Act, 1992, noting that the criteria may be less rigorously applied in a settlement context.

Finding that all criteria were satisfied, the court granted the motion, certified the action for settlement purposes, and approved the notice plan and appointment of administrators.

The Canadian Imperial Bank of Commerce (CIBC) sought an interpleader order under Rule 43 of the Rules of Civil Procedure for approximately $25.7 million CAD and $69,000 USD.

These "Disputed Funds" were held in accounts related to cryptocurrency transactions facilitated by Costodian Inc. for QuadrigaCX, with some funds transferred to Jose Reyes's personal accounts.

CIBC froze the accounts due to an inability to determine the rightful entitlement among 388 depositors, Costodian, Reyes, Billerfy, and QuadrigaCX, and concerns about money laundering.

The respondents opposed the application, arguing there were no competing claims.

The court found a real foundation for competing claims, both among the respondents themselves and from the depositors, particularly noting the refusal of QuadrigaCX's CEO to confirm if depositors' online wallets had been credited.

The interpleader order was granted, directing the funds to be paid into court, but the court declined to extinguish CIBC's potential liability for its actions in freezing the accounts.

Victims of a Ponzi scheme sued the bank used by the fraudster, alleging negligence and knowing assistance in breach of trust for failing to shut down the fraudster's accounts.

The court held that the plaintiffs did not prove their investments were held under an express trust, and the evidence did not establish that the bank had actual knowledge of the fraud or its moral equivalents of wilful blindness or recklessness.

Applying Livent and prior banking-fraud authorities, the court further declined to recognize a novel duty of care owed by a bank to third-party victims based only on constructive knowledge of a customer's fraud.

The action was dismissed in full.

The appellants appealed a Superior Court judgment that found a binding agreement for the purchase and sale of their Brampton home and ordered specific performance.

The appellants argued the application judge erred in concluding there were no material facts in dispute, that the respondents' offer was null and void, and that there was no evidence supporting a finding of counteroffer.

The Court of Appeal rejected all arguments, finding that the appellants' signing and returning of the offer, combined with subsequent conduct consistent with a binding agreement (accepting a deposit cheque and restricting home revisits to those permitted by the offer terms), established a binding contract.

The appeal was dismissed with costs awarded to the respondents.

This costs endorsement followed a ruling on a status hearing where the plaintiffs' proposed timetable for the action was accepted, and the defendants' request for dismissal was denied.

The plaintiffs sought partial indemnity costs of $10,668.15.

The physician defendants argued for no costs, while the hospital defendants accepted the quantum but requested apportionment.

The court found the plaintiffs were the successful party on the status hearing and were entitled to costs.

The court deemed the claimed costs reasonable and apportioned them, with the hospital defendants paying $2,668.15 and the physician defendants paying $8,000.00.

The plaintiffs brought a motion to prevent the dismissal of their medical malpractice action for delay under Rule 48.14 of the Rules of Civil Procedure.

The court applied the two-fold test from *Kara v. Arnold*, requiring an acceptable explanation for delay and no non-compensable prejudice to the defendants.

The court found the plaintiffs provided a reasonable explanation for the delay, citing the complexity of medical malpractice actions, financial difficulties of the lead plaintiff, and some lack of cooperation from defendants in scheduling discoveries.

The court also found no non-compensable prejudice to the defendants, as documents were exchanged and witnesses were available.

The motion was granted, and a timetable was set for the action to proceed.