Decisions

Keep up to date on the latest Commercial List decisions.

• Hudson’s Bay Company, Re

  keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act — Restructuring Framework Agreement — Approval of RFA sought by debtor company — Stakeholder opposition, including landlords — Monitor’s role in oversight — Should the RFA be approved to facilitate restructuring? — Balancing interests of secured creditors and other stakeholders — Governing principles under the CCAA for approval of restructuring agreements | Statutory interpretation — Companies’ Creditors Arrangement Act — Court’s discretion under section 23(1) — Monitor’s obligations to oversee cash flow and report material variances — Should the court impose additional controls on the debtor company’s use of assets? — Interpretation of statutory provisions governing restructuring oversight | Lease — Landlord opposition to restructuring terms — Impact of RFA on lease agreements — Landlords argue no benefit to debtor company from RFA — Should the court approve terms affecting leaseholders? — Balancing landlord rights with restructuring objectives | Property — Secured creditors’ rights — Collateralized inventory sales — Lenders seek control over proceeds and cash flow — Should secured creditors have veto rights over asset use? — Court’s role in balancing creditor rights and restructuring goals | Obligations — Financial obligations under RFA — Mandatory distribution waterfall and cash collateralization — Are such obligations appropriate at this stage of restructuring? — Court’s discretion to impose financial controls on debtor company | Sale — Restrictions on restructuring transactions — Negative covenants in RFA limiting debtor’s ability to pursue alternative transactions — Should the court pre-authorize restrictions on sale processes? — Ensuring flexibility in the Sale and Investment Solicitation Process (SISP)

  CanLII | Apr 1, 2025
• Hudson’s Bay Company, Re

  keywords: Bankruptcy and insolvency — Stay of proceedings — Companies’ Creditors Arrangement Act (CCAA) — Applicants sought extension of stay to stabilize operations during restructuring — Monitor supported extension — Should the stay of proceedings be extended to May 15, 2025? — Court satisfied that extension was necessary to maximize recovery for stakeholders — CCAA, ss. 11.02(2), 11.02(3) | Commerce and industry — Liquidation Sale — Lease Monetization Process — Sales and Investment Solicitation Process (SISP) — Applicants proposed three concurrent processes to maximize recovery — Monitor supported processes — Should the Court approve the Liquidation Sale, Lease Monetization Process, and SISP? — Processes approved as reasonable and necessary under CCAA, s. 36 | Bankruptcy and insolvency — DIP Facility — Repayment of obligations — Applicants sought approval to repay DIP Facility due to improved liquidity from robust sales — Monitor supported repayment to minimize interest costs — Should the repayment of the DIP Facility be approved? — Court approved repayment to reduce unnecessary expenses and maximize recoveries | Labour and employment — Key Employee Retention Plan (KERP) — Retention of essential employees — Applicants proposed KERP to retain 121 key employees during restructuring — Monitor supported KERP as necessary for stability — Should the KERP and corresponding charge be approved? — KERP approved as reasonable and necessary under CCAA, s. 11 | Bankruptcy and insolvency — Sealing order — Confidentiality of KERP details — Applicants sought sealing order to protect employee names and compensation — Should the sealing order be granted? — Court granted sealing order, finding it necessary to protect confidentiality and proportional to public interest

  CanLII | Apr 1, 2025
• Sakab Saudi Holding Co. v. Al Jabri

  keywords: Civil procedure — Mareva injunction — Variation of orders — Frozen funds — Defendants sought variation of Mareva orders to release funds for legal expenses — Whether the court should vary the Mareva orders to permit release of frozen funds — Balancing competing interests of plaintiffs and defendants — Discretionary nature of variation orders — Framework from Credit Valley and Waxman applied | Evidence — Disclosure of assets — Defendants’ burden of proof — Whether defendants demonstrated no other assets available to pay legal expenses — Adverse inferences from refusal to disclose third-party funding details — Privilege upheld — Mareva orders freezing worldwide assets — Application of trust principles to commingled funds | Evidence — Source of frozen assets — Proprietary claims — Defendants’ onus to show assets not traceable to plaintiffs — Commingled funds and fungibility — Application of trust law principles — Trustee deemed to spend personal funds first — Defendants failed to establish non-proprietary source of frozen funds | Civil procedure — Balancing interests — Mareva injunction — Competing interests of plaintiffs and defendants — High-stakes litigation — Defendants’ right to meaningful participation in trial — Complexity of proceedings — Release of funds for legal representation — Proportionality of funds released relative to frozen assets | Civil procedure — Motion by Dreams International Advisory Services Ltd. — Separate relief sought to release frozen funds for legal expenses — Lack of evidence of precarious funding — Privilege over third-party funding details — Failure to meet burden of proof — Motion dismissed

  CanLII | Mar 31, 2025
• In Re Synaptive Medical Inc.

  keywords: Bankruptcy and insolvency — Companies’ Creditors Arrangement Act (CCAA) — Debtor company — Jurisdiction — Applicant sought an Initial Order under the CCAA, including a stay of proceedings, DIP financing, and court-appointed Monitor — Does the applicant qualify as a “debtor company” under the CCAA, and does the court have jurisdiction to grant the requested relief? — CCAA, R.S.C. 1985, c. C-36, s. 9(1) | Bankruptcy and insolvency — Stay of proceedings — Liquidity crisis — Insolvency — Applicant sought a stay of proceedings to prevent creditors from enforcing rights and to stabilize operations — Should the court grant a stay of proceedings to provide the applicant with the necessary breathing space to restructure? — CCAA, R.S.C. 1985, c. C-36, s. 11.02(1) | Bankruptcy and insolvency — Interim financing — DIP Financing Facility — DIP Lender’s Charge — Applicant sought approval of a $1 million DIP Financing Facility and associated charge — Should the court approve the proposed DIP Financing Facility and the associated DIP Lender’s Charge? — CCAA, R.S.C. 1985, c. C-36, s. 11.2(4) | Bankruptcy and insolvency — Charges — Administration Charge — Directors’ Charge — Applicant sought approval of Administration and Directors’ Charges to secure professional fees and indemnify directors — Should the court approve the Administration Charge and Directors’ Charge as proposed by the applicant? — CCAA, R.S.C. 1985, c. C-36, ss. 11.51, 11.52 | Bankruptcy and insolvency — Monitor — Appointment of Monitor — Applicant proposed Richter Inc. as Monitor to oversee restructuring — Should the court appoint Richter Inc. as the Monitor in the CCAA proceedings? — CCAA, R.S.C. 1985, c. C-36, s. 11.7

  CanLII | Mar 26, 2025
• Hudson’s Bay Company

  keywords: Bankruptcy and insolvency — Stay of proceedings — Restructuring under the Companies’ Creditors Arrangement Act (CCAA) — Applicants sought an extension of the stay of proceedings to continue good faith discussions with creditors and stakeholders — Should the stay of proceedings be extended? — Court satisfied that Applicants acted in good faith and had sufficient liquidity — Stay extended pursuant to sections 11.02(2) and (3) of the CCAA | Bankruptcy and insolvency — Directors’ Charge — Quantum increase — Applicants sought to increase the Directors’ Charge to $49,200,000 to reflect obligations related to HST remittances, payroll deductions, and employee liabilities — Should the quantum of the Directors’ Charge be increased? — Court approved increase as reasonable and supported by the Monitor — Sections 11.51 and 11.52 of the CCAA applied | Bankruptcy and insolvency — Priority of charges — Administration Charge, Directors’ Charge, and DIP Charge — Applicants proposed amendments to the relative priorities of charges under the Initial Order — Should the proposed amendments to charge priorities be approved? — Court approved amendments as appropriate and consistent with the DIP Term Sheet — Priority waterfall established for different categories of collateral | Bankruptcy and insolvency — Financial advisor engagement — Reflect Advisors, LLC — Applicants sought approval to engage Reflect Advisors, LLC as financial advisor and include it under the Administration Charge — Should the engagement of Reflect Advisors, LLC be approved? — Court approved engagement based on expertise and necessity for restructuring efforts — No increase to Administration Charge quantum — Section 11 of the CCAA applied

  CanLII | Mar 24, 2025
• Middleton v. Direct Broadcast Satellite Communications Corp.

  keywords: Bankruptcy and insolvency — Sale of business assets — Appointment of Sales Officer — Deadlock among shareholders — Approval of Sale Process Order — Principles from Royal Bank of Canada v. Soundair Corp. — Whether the proposed Sale Process is fair, transparent, and commercially efficacious — Court’s discretion to approve sale processes in insolvency contexts | Sale — Sale Process Order — Ancillary relief — Approval of Sale Process for insurance policies and related assets — Non-solicitation order to protect purchaser’s investment — Whether restrictions on solicitation are reasonable and necessary — Framework for maximizing asset value in court-supervised sales | Business associations — Corporate governance — Deadlock among shareholders — Oppression remedy applications — Appointment of Sales Officer — Whether enhanced powers as receiver and manager are necessary — Court’s discretion to expand the mandate of court-appointed officers | Civil procedure — Preservation of assets — Transfer of funds and commissions to Sales Officer — Compliance with prior court orders — Whether additional orders are necessary to ensure timely and efficient administration of assets — Rule 63.01 and automatic stays in appeals | Insurance — Interim Broker — Appointment of Kingsmere Financial Services Inc. — Allegations of conflict of interest — Whether appointment undermines integrity of Sale Process — Court’s assessment of impartiality and fairness in court-supervised sales

  CanLII | Mar 21, 2025
• Tripodi v. Susglobal Energy Corp.

  keywords: Business associations — Shareholder disputes — Corporate governance — Allegations of misrepresentation and oppression — Plaintiff alleged negligent misrepresentation and oppressive conduct by corporate officers — Defendants denied claims and counterclaimed for abuse of process — Were the defendants' actions oppressive or unfairly prejudicial to the plaintiff's shareholder interests? — Framework for assessing oppression claims under BCE Inc. v. 1976 Debentureholders. | Obligations — Negligent misrepresentation — Share purchases — Plaintiff alleged reliance on misrepresentations regarding share value and uplisting to NASDAQ — Defendants argued public disclosures negated any misrepresentation — Was there a special relationship and reasonable reliance on the alleged misrepresentations? — Test for negligent misrepresentation from Queen v. Cognos Inc. applied. | Obligations — Reasonable reliance — Shareholder sophistication — Plaintiff was an accredited investor with legal and investment experience — Defendants argued reliance on alleged misrepresentations was unreasonable given public disclosures and disclaimers — Was the plaintiff's reliance on the alleged misrepresentations reasonable? — Reasonableness of reliance assessed under McKenna v. Gammon Gold Inc. | Securities — Oppression remedy — Executive compensation — Plaintiff alleged excessive compensation and related-party transactions unfairly disregarded shareholder interests — Defendants argued compensation was disclosed and approved by the board — Did the defendants' conduct violate the plaintiff's reasonable expectations as a shareholder? — Oppression remedy framework from BCE Inc. v. 1976 Debentureholders applied. | Civil procedure — Abuse of process — Counterclaim for reputational harm — Defendants alleged plaintiff's action was initiated for improper collateral purposes, including reputational damage — Plaintiff denied improper motives — Was the plaintiff's action an abuse of process? — Test for abuse of process from Harris v. Glaxosmithkline Inc. applied.

  CanLII | Mar 20, 2025
• Royal Bank of Canada v. Chesswood Group Ltd. et al.

  keywords: Bankruptcy and insolvency — Reverse vesting order — Sale of shares — Companies’ Creditors Arrangement Act (CCAA) — Approval of transaction — Monitor’s role — Harte Gold factors — Soundair principles — Whether reverse vesting structure is necessary — Economic result compared to alternatives — Stakeholder impact — Preservation of licences and permits — Governing rule under section 11 and section 36 of the CCAA | Bankruptcy and insolvency — Releases — Scope of releases — Lydian test — Appropriateness of releases in favour of parties involved in the transaction — Whether releases are necessary and contribute to the restructuring — Governing rule under CCAA jurisprudence | Bankruptcy and insolvency — Stay of proceedings — Extension of stay — Facilitation of transaction completion — Good faith and due diligence — Cash flow projections — Prejudice to creditors — Governing rule under section 11.02(2) of the CCAA | Civil procedure — Sealing order — Commercially sensitive information — Monitor’s report — Public interest in maximizing recovery — Integrity of sales process — Test under Sierra Club and Sherman Estate — Whether salutary effects outweigh deleterious effects

  CanLII | Mar 18, 2025
• Nuance Pharma Ltd. v. Antibe Therapetics Inc.

  keywords: Commercial law — Corporations — Arrangements and compromises — Lifting stay

  CanLII | Mar 18, 2025
• Pride Group Holdings Inc. et al.

  keywords: Bankruptcy and insolvency — Jurisdiction — Deferred Payments mechanism — Liquidity deficit — Pride Entities sought approval to apply Deferred Payments to fund working capital needs — Does the Court have jurisdiction under section 11 of the CCAA to approve the Deferred Payments mechanism? — Section 11 discretion exercised to further remedial objectives of the CCAA, balancing creditor claims and operational needs | Bankruptcy and insolvency — Interim distribution — DIP Lenders’ Charge — Priority of DIP Lenders’ Charge over pre-filing security interests — Should the Court approve the interim distribution of non-Vehicle PGL Net Proceeds to the DIP Lenders? — ARIO and DIP Term Sheet provisions upheld, requiring proceeds to be applied to DIP Obligations | Bankruptcy and insolvency — Purchase price adjustments — PGL Direct Costs — Holdback amounts — Monitor’s recommendations — Should the Court approve the purchase price adjustments, PGL Direct Costs, and holdback amounts? — Monitor’s recommendations approved as appropriate, unopposed, and necessary for the wind-down process | Bankruptcy and insolvency — Monitor’s activities — Approval of Reports — Stakeholder objections — Should the Court approve the activities of the Monitor as described in the 4th through 20th Reports? — Activities approved to advance proceedings, with no prejudice to future cost allocation or professional fee approvals

  CanLII | Mar 17, 2025