Vern W. DaRe

This decision sanctions the CCAA Plans of Imperial Tobacco Canada Limited, Imperial Tobacco Company Limited, JTI-Macdonald Corp., and Rothmans, Benson & Hedges Inc., effecting a global settlement of all tobacco-related claims in Canada.

The court reviews the structure, allocation, and fairness of the plans, including the creation of a $1 billion Cy-près Foundation, and addresses objections from social stakeholders.

The court finds the plans fair, reasonable, and in the public interest, and grants the requested relief, including third-party releases and the appointment of plan administrators.

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

This motion concerned the priority of new home purchasers' deposits in the bankruptcy of residential real estate developers (Stateview entities).

Tarion Warranty Corporation sought declaratory relief, arguing that the deposits were subject to express or constructive trusts due to unjust enrichment, which would elevate purchasers' claims.

The court dismissed Tarion's motion, finding that purchasers' agreements contained subordination clauses giving priority to secured lenders.

The court also determined that while express trusts existed for some purchasers with early termination provisions, these were not statutory deemed trusts.

Furthermore, there was no unjust enrichment for purchasers without express trusts, as the operation of the Bankruptcy and Insolvency Act constituted a juristic reason.

The court declined to impose a remedial constructive trust, emphasizing the high bar for such remedies in insolvency proceedings and the lack of a close causal connection between the deposits and the real property proceeds.

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.

Thorneloe University sought leave to appeal a CCAA judge's decision that allowed Laurentian University to disclaim federation agreements and approved a debtor-in-possession (DIP) loan amendment.

Thorneloe argued the disclaimer would cause its insolvency, provided minimal financial benefit to Laurentian, and was motivated by anti-competition.

The Court of Appeal dismissed the leave motion, finding the proposed appeal was not prima facie meritorious, not of significance to the practice, and would unduly hinder the progress of the CCAA restructuring.

The court upheld the CCAA judge's balancing of interests under s. 32(4) of the CCAA, emphasizing the high deference owed to supervising judges in CCAA proceedings.

Laurentian University brought a motion within its CCAA proceedings seeking the appointment of a Chief Redevelopment Officer, an increase in the fee cap for the Board of Governors' independent counsel, and approval of a claims process.

The court approved the appointment of the CRO and the fee increase.

Regarding the claims process, TD Bank proposed amendments to require consultation on claims over $5 million.

Balancing the need for efficiency with creditor involvement, the court modified the claims process to establish an 'Inspector Group' to authorize the compromise of material claims, drawing on principles from the Bankruptcy and Insolvency Act.

Her Majesty the Queen in right of Ontario sought to lift a stay on its $330 billion health care cost recovery action against three tobacco companies (JTI-Macdonald Corp., Imperial Tobacco, Rothmans, Benson & Hedges Inc.) and eleven co-defendants, which was imposed under CCAA proceedings.

Ontario proposed to temporarily stay the effects of any judgment.

The court dismissed the motion, emphasizing the need to preserve the status quo in CCAA proceedings to facilitate a global resolution of significant claims.

Allowing Ontario's action to proceed would alter the level playing field, distract from restructuring efforts, and impose significant costs, prejudicing other stakeholders.

The Proposal Trustee sought court approval for the proposals of Wasaya Airways Leasing Ltd. (WALL) and the joint proposal of Wasaya Airways Limited Partnership (WALP) and Wasaya General Partner Limited (WGPL).

The court considered the appropriateness of a joint proposal for related corporations under the Bankruptcy and Insolvency Act (BIA), noting the lack of specific BIA provisions but relying on prior judicial interpretations.

The proposals, which offered unsecured creditors a better outcome than bankruptcy, were overwhelmingly approved by creditors.

The court found the proposals reasonable, beneficial to creditors, and made in good faith, also acknowledging the public interest in the debtors' essential services to remote First Nations communities.

A motion was brought by 40 purchasers of residential units from various Urbancorp entities in CCAA and BIA NOI proceedings.

The purchasers sought the appointment of Dickinson Wright LLP as their representative counsel and an order for their legal fees, capped at $150,000, to be paid and secured by an administrative charge against the four properties.

The properties were vacant land, and the significant deposits received by Urbancorp companies were not held in trust and had been spent.

The motion was supported by Tarion but opposed by the Monitor, the Foreign Representative of Urbancorp Inc., the Urbancorp entities, and certain other purchasers and a secured lender for one project.

The court granted the appointment of Dickinson Wright as representative counsel, but stipulated an opt-in process for purchasers rather than an opt-out.

The court denied the request for an administrative charge for legal fees, ruling that fees and disbursements could be paid by the estates from the distributions made to those purchasers who chose to be represented by Dickinson Wright.

In a receivership proceeding, the receiver sought an order compelling a principal of a related company to provide access to a database and financial valuation model used in the debtor’s solar project business.

The respondents argued that the database and model were owned by an affiliated entity and protected by copyright, and therefore did not need to be delivered to the receiver.

The court held that under the standard Model Receiver Appointment Order, “Records” include any documents or electronic data related to the debtor’s business or affairs, regardless of ownership.

Because the database and valuation model contained information directly related to the debtor’s projects and financial performance, the respondents were required to grant the receiver immediate access and copies.

The motion was granted and the respondents were ordered to comply with the appointment order provisions.