Today, the Supreme Court of Canada denied a group of investors leave to appeal the approval of a settlement releasing Ernst & Young LLP from any claims arising from its auditing of Sino-Forest Corporation. The settlement is part of Sino-Forest’s Plan of Compromise and Reorganization following a bankruptcy triggered by allegations of corporate fraud.
The Settlement
The recent decision of the Ontario Court of Appeal in msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550 (“msi Spergel”) confirms that the Court will not suspend, extend or otherwise vary the general two-year limitation period under the Limitations Act, 2002 (the “Limitations Act”) unless there is express statutory authority to do so.
Upon the filing of an appeal of a bankruptcy order, that order is stayed pursuant to section 195 of the Bankruptcy and Insolvency Act (“BIA”). In Msi Spergel v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550, the Ontario Court of Appeal had to decide whether that stay suspends the limitation period applicable to a motion by a trustee to set aside a preferential payment by a bankrupt under s. 95 of the BIA.
In October 2013, the Ontario Court of Appeal released its decisions in Nortel Networks Corporation (Re) and Northstar Aerospace Inc. (Re). These decisions throw yet another wrench into the gears for owners and past owners of contaminated properties and the directors and officers of corporations owning such properties.
Background to Nortel
The test for granting leave to appeal in Companies Creditors’ Arrangement Act proceedings is well-settled:
In a decision rendered on August 15, 2013, the Ontario Court of Appeal in Re Nortel denied a motion for leave to appeal in a CCAA proceeding, reiterating the stringent test for leave to appeal in such circumstances. More importantly for our purposes, the court reiterated the necessity for a motion for leave to adduce fresh evidence where the moving party seeks to rely upon such evidence.
I am tempted to draft a blog post listing the top ten ironies of bankruptcy law. There is no shortage of contenders for that list, and vying for the top spot would be the simple fact that you need a lot of money to go bankrupt. Bankruptcy (or its cousins, creditors arrangement and administration -- but not receivership, the economies of which could also feature in a blog post of its own) involves an influx of lawyers, accountants, and other professionals who negotiate and bicker their way through the company’s balance sheet, all while charging by the hour.
Morris Kaiser’s trustee in bankruptcy, Soberman Inc., thought it smelled a rat: while claiming to be impecunious, Kaiser appeared to be living a life of ‘some means’, which included trips to casinos in the US. Kaiser claimed he was drawing advances on the credit card of a buddy, Cecil Bergman, but the trustee suspected the whole thing was a front to shield Kaiser’s assets from his creditors.