Zev Smith

The applicants, Xplore Inc. and a wholly-owned subsidiary, sought a final order approving a plan of arrangement under the Canada Business Corporations Act (CBCA).

The arrangement aimed to implement a comprehensive recapitalization transaction to significantly deleverage the company's secured debt and secure new financing.

A key component of the plan was a reverse vesting order (RVO) to separate uneconomic satellite business obligations from the ongoing operations.

The court found that the arrangement met all statutory requirements, was proposed in good faith, and was fair and reasonable to all stakeholders, including the initially opposing satellite providers who reached a commercial resolution.

The court also confirmed its jurisdiction under s. 192(4) of the CBCA to grant an RVO and approved the inclusion of third-party releases.

This endorsement addresses motions related to a proposed recapitalization transaction of Xplore Inc. and 16029167 Canada Inc. via a plan of arrangement under the Canada Business Corporations Act (CBCA).

The applicants sought an Interim Order to facilitate a vote on the arrangement, while certain satellite providers (unsecured creditors) brought 'comeback motions' objecting to the preliminary interim order's stay of remedies and the proposed treatment of their contracts, including non-payment of full contractual rates and the use of a reverse vesting order.

The court granted the Interim Order, finding that the applicants met the statutory requirements and acted in good faith, and that the fairness of the arrangement, including the novel reverse vesting order, warranted a full fairness hearing.

The court upheld the stay, finding the non-disclosure by applicants not material and that the court has broad discretion to impose terms on critical suppliers, drawing analogies to CCAA provisions.

The satellite providers' requests for full contractual payments and security were denied, and their motion to lift the stay for a bankruptcy application was adjourned.

Following a successful appeal, the appellant sought costs on a partial indemnity basis.

The respondent argued for a significant reduction in the costs award, citing duplication of efforts with related appeals and unnecessary steps taken by the appellant.

The Tax Court of Canada rejected the respondent's arguments, finding that the appellant was entitled to pursue its own appeal and that the volume of work was justified by the complexity of the issues.

The Court awarded the appellant $700,000 in legal fees, plus disbursements to be taxed.

The plaintiff, a pharmacy, sought a mandatory interlocutory injunction to reinstate its billing services agreement with the defendant, a pharmacy benefits manager, after the defendant terminated the agreement for cause following an audit.

The court found the injunction sought was mandatory, requiring the plaintiff to demonstrate a strong prima facie case.

The court determined the plaintiff failed to establish a strong prima facie case, irreparable harm, or that the balance of convenience favored granting the injunction, as the defendant acted within its contractual rights and the plaintiff's potential damages were quantifiable.

The motion was dismissed.

Q4 Inc. brought an application under section 182 of the Business Corporations Act for final court approval of a plan of arrangement involving SEP Forge BidCo Inc. The arrangement, which involved the acquisition of Q4 shares for cash, had previously received an interim order and was approved by the requisite majorities of shareholders.

The court granted the final approval order, finding that all statutory procedures and court-ordered requirements were met, the application was put forward in good faith, and the arrangement was fair and reasonable.

The decision noted the overwhelming shareholder support and the absence of exercised dissent rights, despite public opposition from a competitor shareholder.

This is an appeal from a motion judge's decision dismissing the plaintiffs' motion to amend their pleadings in a class action alleging a multi-bank conspiracy to fix gold and silver prices and engage in 'spoofing'.

The motion judge had found the proposed amendments time-barred or improper for joinder.

The Court of Appeal allowed the appeal, finding that the motion judge erred in law by treating amendments as new causes of action when they were alternative theories based on existing facts, and by misapplying the 'actual knowledge' standard for limitation periods.

The Court also found a palpable and overriding error in the motion judge's assessment of JP Morgan's joinder, concluding that the CFTC order did not preclude conspiratorial spoofing allegations.

The amendments were allowed, with the possibility for some respondents to plead a limitations defence at trial.

The appeals concerned the tax consequences of dividends paid by Husky Energy Inc. to two non-resident corporations under securities lending arrangements.

The Minister assessed Husky for failing to withhold Part XIII tax at the 15% rate under the Canada-Barbados Income Tax Convention, and assessed the successor corporations of the Barbados entities for the shortfall.

The Tax Court held that the Luxembourg entities were not the beneficial owners of the dividends under the Canada-Luxembourg Income Tax Convention because they were contractually obligated to pay the dividend amounts to the Barbados entities.

Consequently, Husky was liable for Part XIII tax at the 25% rate.

However, because the Minister only assessed the Barbados successor corporations and not the Luxembourg entities, the appeals of the Barbados successor corporations were allowed and their assessments vacated.

Husky's appeal was dismissed.

This is an appeal from a Superior Court order upholding an arbitral award of $29.2 million in favour of All Communications Network of Canada, Co. (ACN) against Planet Energy Corp. (Planet).

Planet sought to set aside the award, arguing it was unable to present its case due to denied discovery rights and that the award violated public policy by contravening the Energy Consumer Protection Act, 2010 (ECPA).

The Court of Appeal dismissed the appeal, finding that the application judge applied the correct standard of review and that Planet failed to demonstrate a breach of procedural fairness or that the award offended public policy.

The appellant, a creditor of the Kyrgyz Republic, appealed the dismissal of its garnishment motion against Centerra Gold Inc., seeking to garnish a $50 million intercompany payment made by Centerra to its subsidiary, Kumtor Gold Company CJSC (KGC), as part of a court-approved plan of arrangement.

The appellant argued that the Kyrgyz Republic was the alter ego of KGC due to de facto appropriation.

The Court of Appeal dismissed the appeal, finding no reversible error in the application judge's determination that Centerra had not lost all control over KGC and was not deprived of all economic benefits, and that KGC remained a separate corporate entity.

Following the approval of a Plan of Arrangement under the Canada Business Corporations Act, the successful applicant sought costs against the objecting creditors.

The objectors argued the applicant was disentitled to costs for failing to request them initially and that the quantum sought was excessive.

The court rejected the disentitlement argument, finding the objectors had notice that costs would be addressed in writing.

The court awarded $100,000 in costs, reducing the requested amount for proportionality, and ordered the costs payable jointly and severally by the objectors as they had pursued a common strategy.

The applicant mining company sought a final order approving a Plan of Arrangement under the Canada Business Corporations Act to sever ties with the Kyrgyz Republic following the state's seizure of its flagship mine.

Two unsecured judgment creditors of the Republic objected, seeking to enforce their arbitral awards against the Republic's shares in the applicant or garnish payments under the Arrangement.

The court approved the Arrangement, finding it met the statutory requirements, had a valid business purpose, and was fair and reasonable.

The court held the creditors lacked standing to oppose the Arrangement and that garnishment was inappropriate as it would result in double jeopardy.

The applicant sought final court approval for a plan of arrangement under section 182 of the Business Corporations Act, whereby the respondent would acquire all issued and outstanding common shares of the applicant.

The court found that the statutory procedures were met, the application was put forward in good faith, and the arrangement was fair and reasonable, noting overwhelming shareholder approval and the presence of fairness opinions.

The final order approving the arrangement 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.

The applicant target company sought specific performance of a share purchase agreement after the respondent purchaser refused to close, citing the COVID-19 pandemic.

The purchaser alleged breaches of the Material Adverse Effect (MAE), ordinary course, amortization event, and access to information covenants.

The court found that while the pandemic threatened earnings, it fell within the MAE's emergency carveout and did not disproportionately affect the target.

The target's pandemic responses, including branch access changes and accounting adjustments, were within the ordinary course of business for an economic downturn.

The court ordered specific performance of the agreement.

Class Counsel brought a motion for approval of a further instalment of fees in an ongoing competition law class action regarding alleged price-fixing in the foreign exchange market.

The plaintiffs had settled with fourteen groups of defendants and the action continued against the remaining non-settling defendants.

The court reviewed the risks undertaken, the results achieved, and the docketed time, finding the requested fees of $6,325,000, plus costs and disbursements, to be fair and reasonable.

The fee request was approved.

The plaintiffs in a class action regarding foreign exchange price fixing brought a motion to amend the Distribution Protocol for the $110 million settlement proceeds.

The proposed amendments included transferring unused funds from the Indirect Claims Fund to the Direct Claims Fund, setting a minimum $1,000 payout for approved Direct Claimants, and removing the requirement to consider compensation received in other jurisdictions.

The court granted the motion, finding the amendments were administrative, imposed no additional burden on the defendants, and fell within the court's broad discretion under section 12 of the Class Proceedings Act, 1992.

The appellants appealed an application judge's order granting an oppression remedy to the minority shareholder respondents.

The application judge found that the majority shareholder's exercise of a drag-along right to force the sale of the respondents' shares was oppressive because the sale price was below fair market value, and ordered a valuation.

The Divisional Court allowed the appeal in part, holding that while the application judge did not err in finding a reasonable expectation that the drag-along right required a sale at fair market value, he erred in concluding the sale was below fair market value without evidence.

The court varied the order to make the valuation an interim step before determining if oppression occurred.

This decision addresses costs following three motions, where the plaintiff was largely successful in obtaining an extension to file a statement of claim despite breaching a peremptory order.

The plaintiff sought costs, but the court denied them.

The denial was based on the plaintiff having received a substantial indulgence from the court, the necessity of much of the evidence and argument regardless of the defendants' position, and the plaintiff's failure as a self-represented litigant to provide evidence of lost income.

The plaintiff, Sae-Bin Im, sought an extension of time to file a statement of claim, while several defendants moved to dismiss the action for breach of a peremptory order and for delay.

The court found the plaintiff's explanation for non-compliance, including self-representation, involvement in other litigation, and medical issues (depression and anxiety), to be satisfactory and not intentional.

The court also found no significant prejudice to the sophisticated defendants, who were aware of the proceedings and could preserve evidence.

The court granted the plaintiff an extension to file the statement of claim and dismissed the defendants' motions to dismiss, emphasizing that the plaintiff's claim, though lengthy, was not frivolous or vexatious.

The applicants sold their company to the respondents, with $1 million held in escrow to secure indemnity claims.

The agreement required the applicants to object to any claims within 30 days, time being of the essence.

The applicants' lawyer inadvertently missed the deadline by seven days due to a medical emergency and a colleague's serious injury.

The applicants brought an application for relief from forfeiture under s. 98 of the Courts of Justice Act.

The court held that relief from forfeiture was available even without a strict breach of contract, and granted the relief because the applicants acted reasonably, the breach was minor, and the $1 million forfeiture was disproportionate to the minimal prejudice suffered by the respondents.

The respondents' request for a reciprocal time extension was denied.