Action for return of premiums paid of key man insurance policies dismissed.

[2011] O.J. No. 3387

Ontario Superior Court of Justice

M.A. Penny J.

January 21, 2011

A number of commentators have written articles about Part IV of the Companies’ Creditors Arrangement Act (CCAA), which deals with recognizing and enforcing foreign insolvency proceedings, however little has been written about the treatment of corporate groups in this context. Part IV of the CCAA deals with entities on an individual basis, and how to deal with corporate groups is not well addressed in international insolvency legislation.

As most are aware by now, the Ontario Court of Appeal (the “OCA”) recently caused alarm by finding that claims of pension plan beneficiaries ranked higher than the super-priority debtor-in-possession financing charge (the “DIP Charge”) created by the amended initial order (the “CCAA Order”) in the Companies’ Creditors Arrangement Act (the “CCAA”) proceedings of the Indalex group of Canadian companies (collectively, “Indalex”).

On April 6, 2011, the Ontario Superior Court of Justice released its decision in the priority disputes between the lessors and aviation authorities resulting from the Skyservice receivership. The Court, in interpreting and applying the decisions in Canada 3000 and Zoom Airlines, may have raised the bar for lessors to defeat the seizure and detention rights of the aviation authorities in Canada.

Adananc

On February 28, 2011, Adanac Molybdenum Corporation announced that it successfully implemented its plan of compromise and arrangement and emerged from CCAA protection. It was announced that, on implementation, Adanac’s outstanding common shares were consolidated on a 150 to 1 basis with 24,698,888 post-consolidation common shares issued to creditors.

Adanac owns the Ruby Creek Project, located in northwest British Columbia.

Ambrilia Biopharma

On April 7, 2011, the Ontario Court of Appeal (the “OCA”) released its decision in Indalex Limited, ordering that the reserved sale proceeds of a going-concern sale involving the Canadian Indalex entities (“Indalex Canada”), held by the court-appointed monitor, FTI Consulting Inc.

Although originating from equity, declared but unpaid dividends have historically been treated as debt claims by courts in proceedings under the Companies’ Creditors Arrangement Act (CCAA).1 Following the coming into force of the CCAA amendments in September 2009, a fresh look at the characterization of claims as debt or equity is being undertaken.

On April 7, 2011, the Ontario Court of Appeal released its long-awaited decision in Re Indalex Limited 1. In a unanimous decision, the Court of Appeal overturned the decision of the Ontario Superior Court of Justice dated February 18, 2010, and allowed the appeals of the United Steelworkers and a certain group of retired executives. The Court of Appeal ordered FTI Consulting Canada ULC (the Monitor) to pay from the reserve fund (the Reserve Fund) held by the Monitor from the sale of Indalex Limited, Indalex Holdings (B.C.) Ltd., 6326765 Canada Inc. and Novar Inc.

The case of Canrock Ventures LLC v. Ambercore Software Inc. et al is a cautionary tale for a Receiver and its counsel alike. In this case, the Ontario Superior Court of Justice rejected a Receiver’s application for the approval of an asset purchase agreement because of a failure to take the requisite steps when conducting a sale process and, in the Court’s view, failing to remain a neutral officer of the Court.

In April 2010, we reported on the decision of the Ontario Superior Court of Justice (the “Superior Court”) in In the Matter of the Proposal of C.I.F. Furniture Limited (“CIF”) which dealt with the question of circular priorities. This decision was recently upheld by the Ontario Court of Appeal (“Court of Appeal”). The Court of Appeal’s decision will offer some comfort to lenders where intercreditor agreements exist between some but not all of the secured lenders of a borrower.