9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10

  

 

SUPREME COURT OF CANADA

 

Citation: 9354-9186 Québec inc. v. Callidus Capital Corp., 2020 SCC 10

Appeals Heard and Judgment Rendered: January 23, 2020 Reasons for Judgment: May 8, 2020 Docket: 38594

 

Between:

 

9354-9186 Québec inc. and 9354-9178 Québec inc.

Appellants

 

and

 

Callidus Capital Corporation, International Game Technology, Deloitte LLP,

Luc Carignan, François Vigneault, Philippe Millette, Francis Proulx and François Pelletier

Respondents

 

- and -

 

Ernst & Young Inc., IMF Bentham Limited (now known as Omni Bridgeway Limited),

Bentham IMF Capital Limited (now known as Omni Bridgeway Capital (Canada) Limited), Insolvency Institute of Canada and

Canadian Association of Insolvency and Restructuring Professionals

Interveners

 

And Between:

 

IMF Bentham Limited (now known as Omni Bridgeway Limited) and Bentham IMF Capital Limited (now known as Omni Bridgeway Capital (Canada) Limited)

Appellants

 

and

 

Callidus Capital Corporation, International Game Technology, Deloitte LLP,

Luc Carignan, François Vigneault, Philippe Millette, Francis Proulx and François Pelletier

Respondents

 

- and -

 

Ernst & Young Inc., 9354-9186 Québec inc., 9354-9178 Québec inc.,

Insolvency Institute of Canada and

Canadian Association of Insolvency and Restructuring Professionals

Interveners

 

 

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Kasirer JJ.

 

Joint Reasons for Judgment: (paras. 1 to 117)

Wagner C.J. and Moldaver J. (Abella, Karakatsanis, Côté, Rowe and Kasirer JJ. concurring)

 

 

Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.

 

 

 

9354-9186 qué. v. callidus

9354-9186 Québec inc. and

9354-9178 Québec inc.                                                                                  Appellants

v.

Callidus Capital Corporation,

International Game Technology,
Deloitte LLP, Luc Carignan,
François Vigneault, Philippe Millette,
Francis Proulx and François Pelletier                                                      Respondents

and

Ernst & Young Inc.,

IMF Bentham Limited (now known as Omni Bridgeway Limited),

Bentham IMF Capital Limited (now known as Omni Bridgeway Capital (Canada) Limited), Insolvency Institute of Canada and
Canadian Association of Insolvency and Restructuring Professionals   Interveners

- and -

IMF Bentham Limited (now known as Omni Bridgeway Limited) and
Bentham IMF Capital Limited (now known as Omni Bridgeway Capital (Canada) Limited) Appellants

v.

Callidus Capital Corporation,

International Game Technology,
Deloitte LLP, Luc Carignan,
François Vigneault, Philippe Millette,
Francis Proulx and François Pelletier                                                      Respondents

and

Ernst & Young Inc.,

9354-9186 Québec inc.,

9354-9178 Québec inc., Insolvency Institute of Canada and
Canadian Association of Insolvency and Restructuring Professionals   Interveners

Indexed as: 9354-9186 Québec inc. v. Callidus Capital Corp.

2020 SCC 10

File No.: 38594.

Hearing and judgment: January 23, 2020.

Reasons delivered: May 8, 2020.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Rowe and Kasirer JJ.

on appeal from the court of appeal for quebec

                    Bankruptcy and insolvency ⸺ Discretionary authority of supervising judge in proceedings under Companies’ Creditors Arrangement Act  ⸺ Appellate review of decisions of supervising judge ⸺ Whether supervising judge has discretion to bar creditor from voting on plan of arrangement where creditor is acting for improper purpose ⸺ Whether supervising judge can approve third party litigation funding as interim financing ⸺ Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ss. 11 , 11.2 .

                    The debtor companies filed a petition for the issuance of an initial order under the Companies’ Creditors Arrangement Act  (“CCAA ”) in November 2015. The petition succeeded, and the initial order was issued by a supervising judge, who became responsible for overseeing the proceedings. Since then, substantially all of the assets of the debtor companies have been liquidated, with the notable exception of retained claims for damages against the companies’ only secured creditor. In September 2017, the secured creditor proposed a plan of arrangement, which later failed to receive sufficient creditor support. In February 2018, the secured creditor proposed another, virtually identical, plan of arrangement. It also sought the supervising judge’s permission to vote on this new plan in the same class as the debtor companies’ unsecured creditors, on the basis that its security was worth nil. Around the same time, the debtor companies sought interim financing in the form of a proposed third party litigation funding agreement, which would permit them to pursue litigation of the retained claims. They also sought the approval of a related super‑priority litigation financing charge.

                    The supervising judge determined that the secured creditor should not be permitted to vote on the new plan because it was acting with an improper purpose. As a result, the new plan had no reasonable prospect of success and was not put to a creditors’ vote. The supervising judge allowed the debtor companies’ application, authorizing them to enter into a third party litigation funding agreement. On appeal by the secured creditor and certain of the unsecured creditors, the Court of Appeal set aside the supervising judge’s order, holding that he had erred in reaching the foregoing conclusions.

                    Held: The appeal should be allowed and the supervising judge’s order reinstated.

                    The supervising judge made no error in barring the secured creditor from voting or in authorizing the third party litigating funding agreement. A supervising judge has the discretion to bar a creditor from voting on a plan of arrangement where they determine that the creditor is acting for an improper purpose. A supervising judge can also approve third party litigation funding as interim financing, pursuant to s. 11.2  of the CCAA . The Court of Appeal was not justified in interfering with the supervising judge’s discretionary decisions in this regard, having failed to treat them with the appropriate degree of deference.

                    The CCAA is one of three principal insolvency statutes in Canada. It pursues an array of overarching remedial objectives that reflect the wide ranging and potentially catastrophic impacts insolvency can have. These objectives include: providing for timely, efficient and impartial resolution of a debtor’s insolvency; preserving and maximizing the value of a debtor’s assets; ensuring fair and equitable treatment of the claims against a debtor; protecting the public interest; and, in the context of a commercial insolvency, balancing the costs and benefits of restructuring or liquidating the company. The architecture of the CCAA  leaves the case-specific assessment and balancing of these objectives to the supervising judge.

                    From beginning to end, each proceeding under the CCAA  is overseen by a single supervising judge, who has broad discretion to make a variety of orders that respond to the circumstances of each case. The anchor of this discretionary authority is s. 11  of the CCAA , with empowers a judge to make any order that they consider appropriate in the circumstances. This discretionary authority is broad, but not boundless. It must be exercised in furtherance of the remedial objectives of the CCAA  and with three baseline considerations in mind: (1) that the order sought is appropriate in the circumstances, and (2) that the applicant has been acting in good faith and (3) with due diligence. The due diligence consideration discourages parties from sitting on their rights and ensures that creditors do not strategically manoeuvre or position themselves to gain an advantage. A high degree of deference is owed to discretionary decisions made by judges supervising CCAA  proceedings and, as such, appellate intervention will only be justified if the supervising judge erred in principle or exercised their discretion unreasonably.

                    A creditor can generally vote on a plan of arrangement or compromise that affects its rights, subject to any specific provisions of the CCAA  that may restrict its voting rights, or a proper exercise of discretion by the supervising judge to constrain or bar the creditor’s right to vote. Given that the CCAA  regime contemplates creditor participation in decision-making as an integral facet of the workout regime, the discretion to bar a creditor from voting should only be exercised where the circumstances demand such an outcome. Where a creditor is seeking to exercise its voting rights in a manner that frustrates, undermines, or runs counter to the remedial objectives of the CCAA  ⸺ that is, acting for an improper purpose ⸺ s. 11  of the CCAA  supplies the supervising judge with the discretion to bar that creditor from voting. This discretion parallels the similar discretion that exists under the Bankruptcy and Insolvency Act  and advances the basic fairness that permeates Canadian insolvency law and practice. Whether this discretion ought to be exercised in a particular case is a circumstance-specific inquiry that the supervising judge is best-positioned to undertake.

                    In the instant case, the supervising judge’s decision to bar the secured creditor from voting on the new plan discloses no error justifying appellate intervention. When he made this decision, the supervising judge was intimately familiar with these proceedings, having presided over them for over 2 years, received 15 reports from the monitor, and issued approximately 25 orders. He considered the whole of the circumstances and concluded that the secured creditor’s vote would serve an improper purpose. He was aware that the secured creditor had chosen not to value any of its claim as unsecured prior to the vote on the first plan and did not attempt to vote on that plan, which ultimately failed to receive the other creditors’ approval. Between the failure of the first plan and the proposal of the (essentially identical) new plan, none of the factual circumstances relating to the debtor companies’ financial or business affairs had materially changed. However, the secured creditor sought to value the entirety of its security at nil and, on that basis, sought leave to vote on the new plan as an unsecured creditor. If the secured creditor were permitted to vote in this way, the new plan would certainly have met the double majority threshold for approval under s. 6(1)  of the CCAA . The inescapable inference was that the secured creditor was attempting to strategically value its security to acquire control over the outcome of the vote and thereby circumvent the creditor democracy the CCAA  protects. The secured creditor’s course of action was also plainly contrary to the expectation that parties act with due diligence in an insolvency proceeding, which includes acting with due diligence in valuing their claims and security. The secured creditor was therefore properly barred from voting on the new plan.

                    Whether third party litigation funding should be approved as interim financing is a case-specific inquiry that should have regard to the text of s. 11.2  of the CCAA  and the remedial objectives of the CCAA  more generally. Interim financing is a flexible tool that may take on a range of forms. This is apparent from the wording of s. 11.2(1) , which is broad and does not mandate any standard form or terms. At its core, interim financing enables the preservation and realization of the value of a debtor’s assets. In some circumstances, like the instant case, litigation funding furthers this basic purpose. Third party litigation funding agreements may therefore be approved as interim financing in CCAA  proceedings when the supervising judge determines that doing so would be fair and appropriate, having regard to all the circumstances and the objectives of the Act. This requires consideration of the specific factors set out in s. 11.2(4)  of the CCAA . These factors need not be mechanically applied or individually reviewed by the supervising judge, as not all of them will be significant in every case, nor are they exhaustive. Additionally, in order for a third party litigation funding agreement to be approved as interim financing, the agreement must not contain terms that effectively convert it into a plan of arrangement.

                    In the instant case, there is no basis upon which to interfere with the supervising judge’s exercise of his discretion to approve the litigation funding agreement as interim financing. A review of the supervising judge’s reasons as a whole, combined with a recognition of his manifest experience with the debtor companies’ CCAA  proceedings, leads to the conclusion that the factors listed in s. 11.2(4)  concern matters that could not have escaped his attention and due consideration. It is apparent that he was focussed on the fairness at stake to all parties, the specific objectives of the CCAA , and the particular circumstances of this case when he approved the litigation funding agreement as interim financing. Further, the litigation funding agreement is not a plan of arrangement because it does not propose any compromise of the creditors’ rights. The fact that the creditors may walk away with more or less money at the end of the day does not change the nature or existence of their rights to access the funds generated from the debtor companies’ assets, nor can it be said to compromise those rights. Finally, the litigation financing charge does not convert the litigation funding agreement into a plan of arrangement. Holding otherwise would effectively extinguish the supervising judge’s authority to approve these charges without a creditors’ vote, which is expressly provided for in s. 11.2  of the CCAA .

Cases Cited

By Wagner C.J. and Moldaver J.

                    Applied: Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379; considered: Re Crystallex, 2012 ONCA 404, 293 O.A.C. 102; Laserworks Computer Services Inc. (Bankruptcy), Re, 1998 NSCA 42, 165 N.S.R. (2d) 296; referred to: Bayens v. Kinross Gold Corporation, 2013 ONSC 4974, 117 O.R. (3d) 150; Hayes v. The City of Saint John, 2016 NBQB 125; Schenk v. Valeant Pharmaceuticals International Inc., 2015 ONSC 3215, 74 C.P.C. (7th) 332; Re Blackburn, 2011 BCSC 1671, 27 B.C.L.R. (5th) 199; Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271; Ernst & Young Inc. v. Essar Global Fund Ltd., 2017 ONCA 1014, 139 O.R. (3d) 1; Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, 435 D.L.R. (4th) 416; Re Canadian Red Cross Society (1998), 5 C.B.R. (4th) 299; Re Target Canada Co., 2015 ONSC 303, 22 C.B.R. (6th) 323; Uti Energy Corp. v. Fracmaster Ltd., 1999 ABCA 178, 244 A.R. 93, aff’g 1999 ABQB 379, 11 C.B.R. (4th) 204; Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150; Stelco Inc. (Re) (2005), 253 D.L.R. (4th) 109; Lehndorff General Partner Ltd., Re (1993), 17 C.B.R. (3d) 24; North American Tungsten Corp. v. Global Tungsten and Powders Corp., 2015 BCCA 390, 377 B.C.A.C. 6; Re BA Energy Inc., 2010 ABQB 507, 70 C.B.R. (5th) 24; HSBC Bank Canada v. Bear Mountain Master Partnership, 2010 BCSC 1563, 72 C.B.R. (5th) 276; Caterpillar Financial Services Ltd. v. 360networks Corp., 2007 BCCA 14, 279 D.L.R. (4th) 701; Grant Forest Products Inc. v. Toronto-Dominion Bank, 2015 ONCA 570, 387 D.L.R. (4th) 426; Bridging Finance Inc. v. Béton Brunet 2001 inc., 2017 QCCA 138, 44 C.B.R. (6th) 175; New Skeena Forest Products Inc., Re, 2005 BCCA 192, 39 B.C.L.R. (4th) 338; Canadian Metropolitan Properties Corp. v. Libin Holdings Ltd., 2009 BCCA 40, 308 D.L.R. (4th) 339; Metcalfe & Mansfield Alternative Investments II Corp. (Re), 2008 ONCA 587, 296 D.L.R. (4th) 135; Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601; Re 1078385 Ontario Inc. (2004), 206 O.A.C. 17; ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140; Nortel Networks Corp., Re, 2015 ONCA 681, 391 D.L.R. (4th) 283; Kitchener Frame Ltd., 2012 ONSC 234, 86 C.B.R. (5th) 274; Royal Oak Mines Inc., Re (1999), 6 C.B.R. (4th) 314; Boutiques San Francisco Inc. v. Richter & Associés Inc., 2003 CanLII 36955; Dugal v. Manulife Financial Corp., 2011 ONSC 1785, 105 O.R. (3d) 364; Montgrain v. National Bank of Canada, 2006 QCCA 557, [2006] R.J.Q. 1009; Langtry v. Dumoulin (1884), 7 O.R. 644; McIntyre Estate v. Ontario (Attorney General) (2002), 218 D.L.R. (4th) 193; Marcotte v. Banque de Montréal, 2015 QCCS 1915; Houle v. St. Jude Medical Inc., 2017 ONSC 5129, 9 C.P.C. (8th) 321, aff’d 2018 ONSC 6352, 429 D.L.R. (4th) 739; Stanway v. Wyeth, 2013 BCSC 1585, 56 B.C.L.R. (5th) 192; Re Crystallex International Corporation, 2012 ONSC 2125, 91 C.B.R. (5th) 169; Cliffs Over Maple Bay Investments Ltd. v. Fisgard Capital Corp., 2008 BCCA 327, 296 D.L.R. (4th) 577.

Statutes and Regulations Cited

An Act respecting Champerty, R.S.O. 1897, c. 327.

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B‑3, ss. 4.2 , 43(7) , 50(1) , 54(3) , 108(3) , 187(9) .

Budget Implementation Act, 2019, No. 1, S.C. 2019, c. 29, ss. 133 , 138 , 140 .

Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C‑36, ss. 2(1) , 3(1) , 4 , 5 , 6 , (1) , 7 , 11 , 11.2 , (1) , (2) , (4) , (a), (b), (c), (d), (e), (f), (g), (5) , 11.7 , 11.8 , 18.6 , 22(1) , (2) , (3) , 23(1) (d), (i), 23  to 25 , 36 .

Winding-up and Restructuring Act, R.S.C. 1985, c. W-11, s. 6(1) .

Authors Cited

Agarwal, Ranjan K., and Doug Fenton. “Beyond Access to Justice: Litigation Funding Agreements Outside the Class Actions Context” (2017), 59 Can. Bus. L.J. 65.

Canada. Innovation, Science and Economic Development Canada. Archived — Bill C‑55: clause by clause analysis, last updated December 29, 2016 (online: https://www.ic.gc.ca/eic/site/cilp-pdci.nsf/eng/cl00908.html#bill128e; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC10_1_eng.pdf).

Canada. Office of the Superintendent of Bankruptcy Canada. Bill C-12: Clause by Clause Analysis, developed by Industry Canada, last updated March 24, 2015 (online: https://www.ic.gc.ca/eic/site/bsf-osb.nsf/eng/br01986.html#a79; archived version: https://www.scc-csc.ca/cso-dce/2020SCC-CSC10_2_eng.pdf).

Canada. Senate. Standing Senate Committee on Banking, Trade and Commerce. Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act. Ottawa, 2003.

Houlden, Lloyd W., Geoffrey B. Morawetz and Janis P. Sarra. Bankruptcy and Insolvency Law of Canada, vol. 4, 4th ed. Toronto: Thomson Reuters, 2009 (loose‑leaf updated 2020, release 3).

Kaplan, Bill. “Liquidating CCAAs: Discretion Gone Awry?”, in Janis P. Sarra, ed., Annual Review of Insolvency Law. Toronto: Carswell, 2008, 79.

Klar, Lewis N., et al. Remedies in Tort, vol. 1, by Leanne Berry, ed. Toronto: Thomson Reuters, 1987 (loose-leaf updated 2019, release 12).

McElcheran, Kevin P. Commercial Insolvency in Canada, 4th ed. Toronto: LexisNexis, 2019.

Michaud, Guillaume. “New Frontier: The Emergence of Litigation Funding in the Canadian Insolvency Landscape”, in Janis P. Sarra et al., eds., Annual Review of Insolvency Law 2018. Toronto: Thomson Reuters, 2019, 221.

Nocilla, Alfonso. “Asset Sales Under the Companies’ Creditors Arrangement Act  and the Failure of Section 36 ” (2012), 52 Can. Bus. L.J. 226.

Nocilla, Alfonso. “The History of the Companies’ Creditors Arrangement Act  and the Future of Re-Structuring Law in Canada” (2014), 56 Can. Bus. L.J. 73.

Rotsztain, Michael B., and Alexandra Dostal. “Debtor‑In-Possession Financing”, in Stephanie Ben-Ishai and Anthony Duggan, eds., Canadian Bankruptcy and Insolvency Law: Bill C‑55, Statute c. 47 and Beyond. Markham, Ont.: LexisNexis, 2007, 227.

Sarra, Janis P. Rescue! The Companies’ Creditors Arrangement Act , 2nd ed. Toronto: Carswell, 2013.

Sarra, Janis P. “The Oscillating Pendulum: Canada’s Sesquicentennial and Finding the Equilibrium for Insolvency Law”, in Janis P. Sarra and Barbara Romaine, eds., Annual Review of Insolvency Law 2016. Toronto: Thomson Reuters, 2017, 9.

Wood, Roderick J. Bankruptcy and Insolvency Law, 2nd ed. Toronto: Irwin Law, 2015.

                    APPEALS from a judgment of the Quebec Court of Appeal (Dutil, Schrager and Dumas JJ.A.), 2019 QCCA 171, [2019] AZ-51566416, [2019] Q.J. No. 670 (QL), 2019 CarswellQue 94 (WL Can.), setting aside a decision of Michaud J., 2018 QCCS 1040, [2018] AZ-51477967, [2018] Q.J. No. 1986 (QL), 2018 CarswellQue 1923 (WL Can.). Appeals allowed.

                    Jean-Philippe Groleau, Christian Lachance, Gabriel Lavery Lepage and Hannah Toledano, for the appellants/interveners 9354‑9186 Québec inc. and 9354‑9178 Québec inc.

                    Neil A. Peden, for the appellants/interveners IMF Bentham Limited (now known as Omni Bridgeway Limited) and Bentham IMF Capital Limited (now known as Omni Bridgeway Capital (Canada) Limited).

                    Geneviève Cloutier and Clifton P. Prophet, for the respondent Callidus Capital Corporation.

                    Jocelyn Perreault, Noah Zucker and François Alexandre Toupin, for the respondents International Game Technology, Deloitte LLP, Luc Carignan, François Vigneault, Philippe Millette, Francis Proulx and François Pelletier.

                    Joseph Reynaud and Nathalie Nouvet, for the intervener Ernst & Young Inc.

                    Sylvain Rigaud, Arad Mojtahedi and Saam Pousht-Mashhad, for the interveners the Insolvency Institute of Canada and the Canadian Association of Insolvency and Restructuring Professionals.

 

The reasons for the judgment of the Court were delivered by

 

                    The Chief Justice and Moldaver J.—

I.              Overview

[1]                              These appeals arise in the context of an ongoing proceeding instituted under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36  (“CCAA ”), in which substantially all of the assets of the debtor companies have been liquidated. The proceeding was commenced well over four years ago. Since then, a single supervising judge has been responsible for its oversight. In this capacity, he has made numerous discretionary decisions.

[2]                              Two of the supervising judge’s decisions are in issue before us. Each raises a question requiring this Court to clarify the nature and scope of judicial discretion in CCAA  proceedings. The first is whether a supervising judge has the discretion to bar a creditor from voting on a plan of arrangement where they determine that the creditor is acting for an improper purpose. The second is whether a supervising judge can approve third party litigation funding as interim financing, pursuant to s. 11.2  of the CCAA .

[3]                              For the reasons that follow, we would answer both questions in the affirmative, as did the supervising judge. To the extent the Court of Appeal disagreed and went on to interfere with the supervising judge’s discretionary decisions, we conclude that it was not justified in doing so. In our respectful view, the Court of Appeal failed to treat the supervising judge’s decisions with the appropriate degree of deference. In the result, as we ordered at the conclusion of the hearing, these appeals are allowed and the supervising judge’s order reinstated.

II.           Facts

[4]                              In 1994, Mr. Gérald Duhamel founded Bluberi Gaming Technologies Inc., which is now one of the appellants, 9354-9186 Québec inc. The corporation manufactured, distributed, installed, and serviced electronic casino gaming machines. It also provided management systems for gambling operations. Its sole shareholder has at all material times been Bluberi Group Inc., which is now another of the appellants, 9354-9178 Québec inc. Through a family trust, Mr. Duhamel controls Bluberi Group Inc. and, as a result, Bluberi Gaming (collectively, “Bluberi”).

[5]                              In 2012, Bluberi sought financing from the respondent, Callidus Capital Corporation (“Callidus”), which describes itself as an “asset-based or distressed lender” (R.F., at para. 26). Callidus extended a credit facility of approximately $24 million to Bluberi. This debt was secured in part by a share pledge agreement.

[6]                              Over the next three years, Bluberi lost significant amounts of money, and Callidus continued to extend credit. By 2015, Bluberi owed approximately $86 million to Callidus — close to half of which Bluberi asserts is comprised of interest and fees.

A.           Bluberi’s Institution of CCAA Proceedings and Initial Sale of Assets

[7]                              On November 11, 2015, Bluberi filed a petition for the issuance of an initial order under the CCAA . In its petition, Bluberi alleged that its liquidity issues were the result of Callidus taking de facto control of the corporation and dictating a number of purposefully detrimental business decisions. Bluberi alleged that Callidus engaged in this conduct in order to deplete the corporation’s equity value with a view to owning Bluberi and, ultimately, selling it.

[8]                              Over Callidus’s objection, Bluberi’s petition succeeded. The supervising judge, Michaud J., issued an initial order under the CCAA . Among other things, the initial order confirmed that Bluberi was a “debtor company” within the meaning of s. 2(1) of the Act; stayed any proceedings against Bluberi or any director or officer of Bluberi; and appointed Ernst & Young Inc. as monitor (“Monitor”).

[9]                              Working with the Monitor, Bluberi determined that a sale of its assets was necessary. On January 28, 2016, it proposed a sale solicitation process, which the supervising judge approved. That process led to Bluberi entering into an asset purchase agreement with Callidus. The agreement contemplated that Callidus would obtain all of Bluberi’s assets in exchange for extinguishing almost the entirety of its secured claim against Bluberi, which had ballooned to approximately $135.7 million. Callidus would maintain an undischarged secured claim of $3 million against Bluberi. The agreement would also permit Bluberi to retain claims for damages against Callidus arising from its alleged involvement in Bluberi’s financial difficulties (“Retained Claims”).^[1] Throughout these proceedings, Bluberi has asserted that the Retained Claims should amount to over $200 million in damages.

[10]                          The supervising judge approved the asset purchase agreement, and the sale of Bluberi’s assets to Callidus closed in February 2017. As a result, Callidus effectively acquired Bluberi’s business, and has continued to operate it as a going concern.

[11]                          Since the sale, the Retained Claims have been Bluberi’s sole remaining asset and thus the sole security for Callidus’s $3 million claim.

B.            The Initial Competing Plans of Arrangement

[12]                          On September 11, 2017, Bluberi filed an application seeking the approval of a $2 million interim financing credit facility to fund the litigation of the Retained Claims and other related relief. The lender was a joint venture numbered company incorporated as 9364-9739 Québec inc. This interim financing application was set to be heard on September 19, 2017.

[13]                          However, one day before the hearing, Callidus proposed a plan of arrangement (“First Plan”) and applied for an order convening a creditors’ meeting to vote on that plan. The First Plan proposed that Callidus would fund a $2.5 million (later increased to $2.63 million) distribution to Bluberi’s creditors, except itself, in exchange for a release from the Retained Claims. This would have fully satisfied the claims of Bluberi’s former employees and those creditors with claims worth less than $3000; creditors with larger claims were to receive, on average, 31 percent of their respective claims.

[14]                          The supervising judge adjourned the hearing of both applications to October 5, 2017. In the meantime, Bluberi filed its own plan of arrangement. Among other things, the plan proposed that half of any proceeds resulting from the Retained Claims, after payment of expenses and Bluberi’s creditors’ claims, would be distributed to the unsecured creditors, as long as the net proceeds exceeded $20 million.

[15]                          On October 5, 2017, the supervising judge ordered that the parties’ plans of arrangement could be put to a creditors’ vote. He ordered that both parties share the fees and expenses related to the presentation of the plans of arrangement at a creditors’ meeting, and that a party’s failure to deposit those funds with the Monitor would bar the presentation of that party’s plan of arrangement. Bluberi elected not to deposit the necessary funds, and, as a result, only Callidus’s First Plan was put to the creditors.

C.            Creditors’ Vote on Callidus’s First Plan

[16]                          On December 15, 2017, Callidus submitted its First Plan to a creditors’ vote. The plan failed to receive sufficient support. Section 6(1)  of the CCAA  provides that, to be approved, a plan must receive a “double majority” vote in each class of creditors — that is, a majority in number of class members, which also represents two-thirds in value of the class members’ claims. All of Bluberi’s creditors, besides Callidus, formed a single voting class of unsecured creditors. Of the 100 voting unsecured creditors, 92 creditors (representing $3,450,882 of debt) voted in favour, and 8 voted against (representing $2,375,913 of debt). The First Plan failed because the creditors voting in favour only held 59.22 percent of the total value being voted, which did not meet the s. 6(1)  threshold. Most notably, SMT Hautes Technologies (“SMT”), which held 36.7 percent of Bluberi’s debt, voted against the plan.

[17]                          Callidus did not vote on the First Plan — despite the Monitor explicitly stating that Callidus could have “vote[d] . . . the portion of its claim, assessed by Callidus, to be an unsecured claim” (Joint R.R., vol. III, at p.188).

D.           Bluberi’s Interim Financing Application and Callidus’s New Plan

[18]                          On February 6, 2018, Bluberi filed one of the applications underlying these appeals, seeking authorization of a proposed third party litigation funding agreement (“LFA”) with a publicly traded litigation funder, IMF Bentham Limited or its Canadian subsidiary, Bentham IMF Capital Limited (collectively, “Bentham”). Bluberi’s application also sought the placement of a $20 million super-priority charge in favour of Bentham on Bluberi’s assets (“Litigation Financing Charge”).

[19]                          The LFA contemplated that Bentham would fund Bluberi’s litigation of the Retained Claims in exchange for receiving a portion of any settlement or award after trial. However, were Bluberi’s litigation to fail, Bentham would lose all of its invested funds. The LFA also provided that Bentham could terminate the litigation of the Retained Claims if, acting reasonably, it were no longer satisfied of the merits or commercial viability of the litigation.

[20]                          Callidus and certain unsecured creditors who voted in favour of its plan (who are now respondents and style themselves the “Creditors’ Group”) contested Bluberi’s application on the ground that the LFA was a plan of arrangement and, as such, had to be submitted to a creditors’ vote.^[2]

[21]                          On February 12, 2018, Callidus filed the other application underlying these appeals, seeking to put another plan of arrangement to a creditors’ vote (“New Plan”). The New Plan was essentially identical to the First Plan, except that Callidus increased the proposed distribution by $250,000 (from $2.63 million to $2.88 million). Further, Callidus filed an amended proof of claim, which purported to value the security attached to its $3 million claim at nil. Callidus was of the view that this valuation was proper because Bluberi had no assets other than the Retained Claims. On this basis, Callidus asserted that it stood in the position of an unsecured creditor, and sought the supervising judge’s permission to vote on the New Plan with the other unsecured creditors. Given the size of its claim, if Callidus were permitted to vote on the New Plan, the plan would necessarily pass a creditors’ vote. Bluberi opposed Callidus’s application.

[22]                          The supervising judge heard Bluberi’s interim financing application and Callidus’s application regarding its New Plan together. Notably, the Monitor supported Bluberi’s position. 

III.        Decisions Below

A.           Quebec Superior Court (2018 QCCS 1040) (Michaud J.)

[23]                          The supervising judge dismissed Callidus’s application, declining to submit the New Plan to a creditors’ vote. He granted Bluberi’s application, authorizing Bluberi to enter into a litigation funding agreement with Bentham on the terms set forth in the LFA and imposing the Litigation Financing Charge on Bluberi’s assets. 

[24]                          With respect to Callidus’s application, the supervising judge determined Callidus should not be permitted to vote on the New Plan because it was acting with an “improper purpose” (para. 48). He acknowledged that creditors are generally entitled to vote in their own self-interest. However, given that the First Plan — which was almost identical to the New Plan — had been defeated by a creditors’ vote, the supervising judge concluded that Callidus’s attempt to vote on the New Plan was an attempt to override the result of the first vote. In particular, he wrote:

Taking into consideration the creditors’ interest, the Court accepted, in the fall of 2017, that Callidus’ Plan be submitted to their vote with the understanding that, as a secured creditor, Callidus would not cast a vote. However, under the present circumstances, it would serve an improper purpose if Callidus was allowed to vote on its own plan, especially when its vote would very likely result in the New Plan meeting the two thirds threshold for approval under the CCAA .

 

As pointed out by SMT, the main unsecured creditor, Callidus’ attempt to vote aims only at cancelling SMT’s vote which prevented Callidus’ Plan from being approved at the creditors’ meeting.

 

It is one thing to let the creditors vote on a plan submitted by a secured creditor, it is another to allow this secured creditor to vote on its own plan in order to exert control over the vote for the sole purpose of obtaining releases. [paras. 45-47]

[25]                          The supervising judge concluded that, in these circumstances, allowing Callidus to vote would be both “unfair and unreasonable” (para. 47). He also observed that Callidus’s conduct throughout the CCAA  proceedings “lacked transparency” (at para. 41) and that Callidus was “solely motivated by the [pending] litigation” (para. 44). In sum, he found that Callidus’s conduct was contrary to the “requirements of appropriateness, good faith, and due diligence”, and ordered that Callidus would not be permitted to vote on the New Plan (para. 48, citing Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, [2010] 3 S.C.R. 379, at para. 70).

[26]                          Because Callidus was not permitted to vote on the New Plan and SMT had unequivocally stated its intention to vote against it, the supervising judge concluded that the plan had no reasonable prospect of success. He therefore declined to submit it to a creditors’ vote.

[27]                          With respect to Bluberi’s application, the supervising judge considered three issues relevant to these appeals: (1) whether the LFA should be submitted to a creditors’ vote; (2) if not, whether the LFA ought to be approved by the court; and (3) if so, whether the $20 million Litigation Financing Charge should be imposed on Bluberi’s assets.

[28]                          The supervising judge determined that the LFA did not need to be submitted to a creditors’ vote because it was not a plan of arrangement. He considered a plan of arrangement to involve “an arrangement or compromise between a debtor and its creditors” (para. 71, citing Re Crystallex, 2012 ONCA 404, 293 O.A.C. 102, at para. 92 (“Crystallex”)). In his view, the LFA lacked this essential feature. He also concluded that the LFA did not need to be accompanied by a plan, as Bluberi had stated its intention to file a plan in the future.

[29]                          After reviewing the terms of the LFA, the supervising judge found it met the criteria for approval of third party litigation funding set out in Bayens v. Kinross Gold Corporation, 2013 ONSC 4974, 117 O.R. (3d) 150, at para. 41, and Hayes v. The City of Saint John, 2016 NBQB 125, at para. 4 (CanLII). In particular, he considered Bentham’s percentage of return to be reasonable in light of its level of investment and risk. Further, the supervising judge rejected Callidus and the Creditors’ Group’s argument that the LFA gave too much discretion to Bentham. He found that the LFA did not allow Bentham to exert undue influence on the litigation of the Retained Claims, noting similarly broad clauses had been approved in the CCAA  context (para. 82, citing Schenk v. Valeant Pharmaceuticals International Inc., 2015 ONSC 3215, 74 C.P.C. (7th) 332, at para. 23).

[30]                          Finally, the supervising judge imposed the Litigation Financing Charge on Bluberi’s assets. While significant, the supervising judge considered the amount to be reasonable given: the amount of damages that would be claimed from Callidus; Bentham’s financial commitment to the litigation; and the fact that Bentham was not charging any interim fees or interest (i.e., it would only profit in the event of successful litigation or settlement). Put simply, Bentham was taking substantial risks, and it was reasonable that it obtain certain guarantees in exchange.

[31]                          Callidus, again supported by the Creditors’ Group, appealed the supervising judge’s order, impleading Bentham in the process.

B.            Quebec Court of Appeal (2019 QCCA 171) (Dutil and Schrager JJ.A. and Dumas J. (ad hoc))

[32]                          The Court of Appeal allowed the appeal, finding that “[t]he exercise of the judge’s discretion [was] not founded in law nor on a proper treatment of the facts so that irrespective of the standard of review applied, appellate intervention [was] justified” (para. 48 CanLII)). In particular, the court identified two errors of relevance to these appeals.

[33]                          First, the court was of the view that the supervising judge erred in finding that Callidus had an improper purpose in seeking to vote on its New Plan. In its view, Callidus should have been permitted to vote. The court relied heavily on the notion that creditors have a right to vote in their own self-interest. It held that any judicial discretion to preclude voting due to improper purpose should be reserved for the “clearest of cases” (para. 62, referring to Re Blackburn, 2011 BCSC 1671, 27 B.C.L.R. (5th) 199, at para. 45). The court was of the view that Callidus’s transparent attempt to obtain a release from Bluberi’s claims against it did not amount to an improper purpose. The court also considered Callidus’s conduct prior to and during the CCAA  proceedings to be incapable of justifying a finding of improper purpose.

[34]                          Second, the court concluded that the supervising judge erred in approving the LFA as interim financing because, in its view, the LFA was not connected to Bluberi’s commercial operations. The court concluded that the supervising judge had both “misconstrued in law the notion of interim financing and misapplied that notion to the factual circumstances of the case” (para. 78).

[35]                          In light of this perceived error, the court substituted its view that the LFA was a plan of arrangement and, as a result, should have been submitted to a creditors’ vote. It held that “[a]n arrangement or proposal can encompass both a compromise of creditors’ claims as well as the process undertaken to satisfy them” (para. 85). The court considered the LFA to be a plan of arrangement because it affected the creditors’ share in any eventual litigation proceeds, would cause them to wait for the outcome of any litigation, and could potentially leave them with nothing at all. Moreover, the court held that Bluberi’s scheme “as a whole”, being the prosecution of the Retained Claims and the LFA, should be submitted as a plan to the creditors for their approval (para. 89).

[36]                          Bluberi and Bentham (collectively, “appellants”), again supported by the Monitor, now appeal to this Court.

IV.        Issues

[37]                          These appeals raise two issues:

(1)            Did the supervising judge err in barring Callidus from voting on its New Plan on the basis that it was acting for an improper purpose?

 

(2)            Did the supervising judge err in approving the LFA as interim financing, pursuant to s. 11.2  of the CCAA ?

V.           Analysis

A.           Preliminary Considerations

[38]                          Addressing the above issues requires situating them within the contemporary Canadian insolvency landscape and, more specifically, the CCAA  regime. Accordingly, before turning to those issues, we review (1) the evolving nature of CCAA  proceedings; (2) the role of the supervising judge in those proceedings; and (3) the proper scope of appellate review of a supervising judge’s exercise of discretion.

(1)          The Evolving Nature of CCAA Proceedings

[39]                          The CCAA is one of three principal insolvency statutes in Canada. The others are the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3  (“BIA ”), which covers insolvencies of both individuals and companies, and the Winding-up and Restructuring Act, R.S.C. 1985, c. W-11  (“WURA ”), which covers insolvencies of financial institutions and certain other corporations, such as insurance companies (WURA, s. 6(1) ). While both the CCAA  and the BIA  enable reorganizations of insolvent companies, access to the CCAA  is restricted to debtor companies facing total claims in excess of $5 million (CCAA, s. 3(1) ).

[40]                          Together, Canada’s insolvency statutes pursue an array of overarching remedial objectives that reflect the wide ranging and potentially “catastrophic” impacts insolvency can have (Sun Indalex Finance, LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271, at para. 1). These objectives include: providing for timely, efficient and impartial resolution of a debtor’s insolvency; preserving and maximizing the value of a debtor’s assets; ensuring fair and equitable treatment of the claims against a debtor; protecting the public interest; and, in the context of a commercial insolvency, balancing the costs and benefits of restructuring or liquidating the company (J. P. Sarra, “The Oscillating Pendulum: Canada’s Sesquicentennial and Finding the Equilibrium for Insolvency Law”, in J. P. Sarra and B. Romaine, eds., Annual Review of Insolvency Law 2016 (2017), 9, at pp. 9-10; J. P. Sarra, Rescue! The Companies’ Creditors Arrangement Act  2nd ed. (2013), at pp. 4-5 and 14; Standing Senate Committee on Banking, Trade and Commerce, Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act (2003), at pp. 9-10; R. J. Wood, Bankruptcy and Insolvency Law (2nd ed. 2015), at pp. 4-5).

[41]                          Among these objectives, the CCAA  generally prioritizes “avoiding the social and economic losses resulting from liquidation of an insolvent company” (Century Services, at para. 70). As a result, the typical CCAA  case has historically involved an attempt to facilitate the reorganization and survival of the pre-filing debtor company in an operational state — that is, as a going concern. Where such a reorganization was not possible, the alternative course of action was seen as a liquidation through either a receivership or under the BIA  regime. This is precisely the outcome that was sought in Century Services (see para. 14).

[42]                          That said, the CCAA  is fundamentally insolvency legislation, and thus it also “has the simultaneous objectives of maximizing creditor recovery, preservation of going-concern value where possible, preservation of jobs and communities affected by the firm’s financial distress . . . and enhancement of the credit system generally” (Sarra, Rescue! The Companies’ Creditors Arrangement Act , at p. 14; see also Ernst & Young Inc. v. Essar Global Fund Ltd., 2017 ONCA 1014, 139 O.R. (3d) 1, at para. 103). In pursuit of those objectives, CCAA  proceedings have evolved to permit outcomes that do not result in the emergence of the pre-filing debtor company in a restructured state, but rather involve some form of liquidation of the debtor’s assets under the auspices of the Act itself (Sarra, “The Oscillating Pendulum: Canada’s Sesquicentennial and Finding the Equilibrium for Insolvency Law”, at pp. 19-21). Such scenarios are referred to as “liquidating CCAAs”, and they are now commonplace in the CCAA  landscape (see Third Eye Capital Corporation v. Ressources Dianor Inc./Dianor Resources Inc., 2019 ONCA 508, 435 D.L.R. (4th) 416, at para. 70).

[43]                          Liquidating CCAAs take diverse forms and may involve, among other things: the sale of the debtor company as a going concern; an “en bloc” sale of assets that are capable of being operationalized by a buyer; a partial liquidation or downsizing of business operations; or a piecemeal sale of assets (B. Kaplan, “Liquidating CCAAs: Discretion Gone Awry?”, in J. P. Sarra, ed., Annual Review of Insolvency Law (2008), 79, at pp. 87-89). The ultimate commercial outcomes facilitated by liquidating CCAAs are similarly diverse. Some may result in the continued operation of the business of the debtor under a different going concern entity (e.g., the liquidations in Indalex and Re Canadian Red Cross Society (1998), 5 C.B.R. (4th) 299 (Ont. C.J. (Gen. Div.)), while others may result in a sale of assets and inventory with no such entity emerging (e.g., the proceedings in Re Target Canada Co., 2015 ONSC 303, 22 C.B.R. (6th) 323, at paras. 7 and 31). Others still, like the case at bar, may involve a going concern sale of most of the assets of the debtor, leaving residual assets to be dealt with by the debtor and its stakeholders.

[44]                          CCAA  courts first began approving these forms of liquidation pursuant to the broad discretion conferred by the Act. The emergence of this practice was not without criticism, largely on the basis that it appeared to be inconsistent with the CCAA  being a “restructuring statute” (see, e.g., Uti Energy Corp. v. Fracmaster Ltd., 1999 ABCA 178, 244 A.R. 93, at paras. 15-16, aff’g 1999 ABQB 379, 11 C.B.R. (4th) 204, at paras. 40-43; A. Nocilla, “The History of the Companies’ Creditors Arrangement Act  and the Future of Re-Structuring Law in Canada” (2014), 56 Can. Bus. L.J. 73, at pp. 88-92).

[45]                          However, since s. 36  of the CCAA  came into force in 2009, courts have been using it to effect liquidating CCAAs. Section 36  empowers courts to authorize the sale or disposition of a debtor company’s assets outside the ordinary course of business.^[3] Significantly, when the Standing Senate Committee on Banking, Trade and Commerce recommended the adoption of s. 36 , it observed that liquidation is not necessarily inconsistent with the remedial objectives of the CCAA , and that it may be a means to “raise capital [to facilitate a restructuring], eliminate further loss for creditors or focus on the solvent operations of the business” (p. 147). Other commentators have observed that liquidation can be a “vehicle to restructure a business” by allowing the business to survive, albeit under a different corporate form or ownership (Sarra, Rescue! The Companies’ Creditors Arrangement Act , at p. 169; see also K. P. McElcheran, Commercial Insolvency in Canada (4th ed. 2019), at p. 311). Indeed, in Indalex, the company sold its assets under the CCAA  in order to preserve the jobs of its employees, despite being unable to survive as their employer (see para. 51).

[46]                          Ultimately, the relative weight that the different objectives of the CCAA  take on in a particular case may vary based on the factual circumstances, the stage of the proceedings, or the proposed solutions that are presented to the court for approval. Here, a parallel may be drawn with the BIA  context. In Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5, [2019] 1 S.C.R. 150, at para. 67, this Court explained that, as a general matter, the BIA  serves two purposes: (1) the bankrupt’s financial rehabilitation and (2) the equitable distribution of the bankrupt’s assets among creditors. However, in circumstances where a debtor corporation will never emerge from bankruptcy, only the latter purpose is relevant (see para. 67). Similarly, under the CCAA , when a reorganization of the pre-filing debtor company is not a possibility, a liquidation that preserves going-concern value and the ongoing business operations of the pre-filing company may become the predominant remedial focus. Moreover, where a reorganization or liquidation is complete and the court is dealing with residual assets, the objective of maximizing creditor recovery from those assets may take centre stage. As we will explain, the architecture of the CCAA  leaves the case-specific assessment and balancing of these remedial objectives to the supervising judge.

(2)          The Role of a Supervising Judge in CCAA Proceedings

[47]                          One of the principal means through which the CCAA  achieves its objectives is by carving out a unique supervisory role for judges (see Sarra, Rescue! The Companies’ Creditors Arrangement Act , at pp. 18-19). From beginning to end, each CCAA  proceeding is overseen by a single supervising judge. The supervising judge acquires extensive knowledge and insight into the stakeholder dynamics and the business realities of the proceedings from their ongoing dealings with the parties.

[48]                          The CCAA capitalizes on this positional advantage by supplying supervising judges with broad discretion to make a variety of orders that respond to the circumstances of each case and “meet contemporary business and social needs” (Century Services, at para. 58) in “real-time” (para. 58, citing R. B. Jones, “The Evolution of Canadian Restructuring: Challenges for the Rule of Law”, in J. P. Sarra, ed., Annual Review of Insolvency Law 2005 (2006), 481, at p. 484). The anchor of this discretionary authority is s. 11 , which empowers a judge “to make any order that [the judge] considers appropriate in the circumstances”. This section has been described as “the engine” driving the statutory scheme (Stelco Inc. (Re) (2005), 253 D.L.R. (4th) 109 (Ont. C.A.), at para. 36).

[49]                          The discretionary authority conferred by the CCAA , while broad in nature, is not boundless. This authority must be exercised in furtherance of the remedial objectives of the CCAA , which we have explained above (see Century Services, at para. 59). Additionally, the court must keep in mind three “baseline considerations” (at para. 70), which the applicant bears the burden of demonstrating: (1) that the order sought is appropriate in the circumstances, and (2) that the applicant has been acting in good faith and (3) with due diligence (para. 69).

[50]                          The first two considerations of appropriateness and good faith are widely understood in the CCAA  context. Appropriateness “is assessed by inquiring whether the order sought advances the policy objectives underlying the CCAA ” (para. 70). Further, the well-established requirement that parties must act in good faith in insolvency proceedings has recently been made express in s. 18.6  of the CCAA , which provides:

Good faith

18.6 (1) Any interested person in any proceedings under this Act shall act in good faith with respect to those proceedings.

Good faith — powers of court

(2) If the court is satisfied that an interested person fails to act in good faith, on application by an interested person, the court may make any order that it considers appropriate in the circumstances.

 

     (See also BIA, s. 4.2 ; Budget Implementation Act, 2019, No. 1, S.C. 2019, c. 29, ss. 133  and 140 .)

[51]                          The third consideration of due diligence requires some elaboration. Consistent with the CCAA  regime generally, the due diligence consideration discourages parties from sitting on their rights and ensures that creditors do not strategically manoeuver or position themselves to gain an advantage (Lehndorff General Partner Ltd., Re (1993), 17 C.B.R. (3d) 24 (Ont. C.J. (Gen. Div.)), at p. 31). The procedures set out in the CCAA  rely on negotiations and compromise between the debtor and its stakeholders, as overseen by the supervising judge and the monitor. This necessarily requires that, to the extent possible, those involved in the proceedings be on equal footing and have a clear understanding of their respective rights (see McElcheran, at p. 262). A party’s failure to participate in CCAA  proceedings in a diligent and timely fashion can undermine these procedures and, more generally, the effective functioning of the CCAA  regime (see, e.g., North American Tungsten Corp. v. Global Tungsten and Powders Corp., 2015 BCCA 390, 377 B.C.A.C. 6, at  paras. 21-23; Re BA Energy Inc., 2010 ABQB 507, 70 C.B.R. (5th) 24; HSBC Bank Canada v. Bear Mountain Master Partnership, 2010 BCSC 1563, 72 C.B.R. (5th) 276, at para. 11; Caterpillar Financial Services Ltd. v. 360networks Corp., 2007 BCCA 14, 279 D.L.R. (4th) 701, at paras. 51-52, in which the courts seized on a party’s failure to act diligently).

[52]                          We pause to note that supervising judges are assisted in their oversight role by a court appointed monitor whose qualifications and duties are set out in the CCAA  (see ss. 11.7 , 11.8  and 23  to 25 ). The monitor is an independent and impartial expert, acting as “the eyes and the ears of the court” throughout the proceedings (Essar, at para. 109). The core of the monitor’s role includes providing an advisory opinion to the court as to the fairness of any proposed plan of arrangement and on orders sought by parties, including the sale of assets and requests for interim financing (see CCAA, s. 23(1) (d) and (i); Sarra, Rescue! The Companies’ Creditors Arrangement Act , at pp- 566 and 569).

(3)                 Appellate Review of Exercises of Discretion by a Supervising Judge

[53]                          A high degree of deference is owed to discretionary decisions made by judges supervising CCAA  proceedings. As such, appellate intervention will only be justified if the supervising judge erred in principle or exercised their discretion unreasonably (see Grant Forest Products Inc. v. Toronto-Dominion Bank, 2015 ONCA 570, 387 D.L.R. (4th) 426, at para. 98; Bridging Finance Inc. v. Béton Brunet 2001 inc., 2017 QCCA 138, 44 C.B.R. (6th) 175, at para. 23). Appellate courts must be careful not to substitute their own discretion in place of the supervising judge’s (New Skeena Forest Products Inc., Re, 2005 BCCA 192, 39 B.C.L.R. (4th) 338, at para. 20).

[54]                          This deferential standard of review accounts for the fact that supervising judges are steeped in the intricacies of the CCAA  proceedings they oversee. In this respect, the comments of Tysoe J.A. in Canadian Metropolitan Properties Corp. v. Libin Holdings Ltd., 2009 BCCA 40, 305 D.L.R. (4th) 339 (“Re Edgewater Casino Inc.), at para. 20, are apt:

. . . one of the principal functions of the judge supervising the CCAA  proceeding is to attempt to balance the interests of the various stakeholders during the reorganization process, and it will often be inappropriate to consider an exercise of discretion by the supervising judge in isolation of other exercises of discretion by the judge in endeavoring to balance the various interests. . . . CCAA  proceedings are dynamic in nature and the supervising judge has intimate knowledge of the reorganization process. The nature of the proceedings often requires the supervising judge to make quick decisions in complicated circumstances.

[55]                          With the foregoing in mind, we turn to the issues on appeal.

B.            Callidus Should Not Be Permitted to Vote on Its New Plan

[56]                          A creditor can generally vote on a plan of arrangement or compromise that affects its rights, subject to any specific provisions of the CCAA  that may restrict its voting rights (e.g., s. 22(3) ), or a proper exercise of discretion by the supervising judge to constrain or bar the creditor’s right to vote. We conclude that one such constraint arises from s. 11  of the CCAA , which provides supervising judges with the discretion to bar a creditor from voting where the creditor is acting for an improper purpose. Supervising judges are best-placed to determine whether this discretion should be exercised in a particular case. In our view, the supervising judge here made no error in exercising his discretion to bar Callidus from voting on the New Plan.

(1)           Parameters of Creditors’ Right to Vote on Plans of Arrangement

[57]                          Creditor approval of any plan of arrangement or compromise is a key feature of the CCAA , as is the supervising judge’s oversight of that process. Where a plan is proposed, an application may be made to the supervising judge to order a creditors’ meeting to vote on the proposed plan (CCAA, ss. 4  and 5 ). The supervising judge has the discretion to determine whether to order the meeting. For the purposes of voting at a creditors’ meeting, the debtor company may divide the creditors into classes, subject to court approval (CCAA, s. 22(1) ). Creditors may be included in the same class if “their interests or rights are sufficiently similar to give them a commonality of interest” (CCAA, s. 22(2) ; see also L. W. Houlden, G. B. Morawetz and J. P. Sarra, Bankruptcy and Insolvency Law of Canada (4th ed. (loose-leaf)), vol. 4, at N§149). If the requisite “double majority” in each class of creditors — again, a majority in number of class members, which also represents two-thirds in value of the class members’ claims — vote in favour of the plan, the supervising judge may sanction the plan (Metcalfe & Mansfield Alternative Investments II Corp. (Re), 2008 ONCA 587, 296 D.L.R. (4th) 135, at para. 34; see CCAA, s. 6 ). The supervising judge will conduct what is commonly referred to as a “fairness hearing” to determine, among other things, whether the plan is fair and reasonable (Wood, at pp. 490-92; see also Sarra, Rescue! The Companies’ Creditors Arrangement Act , at p. 529; Houlden, Morawetz and Sarra at N§45). Once sanctioned by the supervising judge, the plan is binding on each class of creditors that participated in the vote (CCAA, s. 6(1) ).

[58]                          Creditors with a provable claim against the debtor whose interests are affected by a proposed plan are usually entitled to vote on plans of arrangement (Wood, at p. 470). Indeed, there is no express provision in the CCAA  barring such a creditor from voting on a plan of arrangement, including a plan it sponsors.

[59]                          Notwithstanding the foregoing, the appellants submit that a purposive interpretation of s. 22(3)  of the CCAA  reveals that, as a general matter, a creditor should be precluded from voting on its own plan. Section 22(3)  provides:

Related creditors

(3) A creditor who is related to the company may vote against, but not for, a compromise or arrangement relating to the company.

The appellants note that s. 22(3)  was meant to harmonize the CCAA  scheme with s. 54(3)  of the BIA , which provides that “[a] creditor who is related to the debtor may vote against but not for the acceptance of the proposal.” The appellants point out that, under s. 50(1)  of the BIA , only debtors can sponsor plans; as a result, the reference to “debtor” in s. 54(3)  captures all plan sponsors. They submit that if s. 54(3)  captures all plan sponsors, s. 22(3)  of the CCAA  must do the same. On this basis, the appellants ask us to extend the voting restriction in s. 22(3)  to apply not only to creditors who are “related to the company”, as the provision states, but to any creditor who sponsors a plan. They submit that this interpretation gives effect to the underlying intention of both provisions, which they say is to ensure that a creditor who has a conflict of interest cannot “dilute” or overtake the votes of other creditors.

[60]                          We would not accept this strained interpretation of s. 22(3) . Section 22(3)  makes no mention of conflicts of interest between creditors and plan sponsors generally. The wording of s. 22(3)  only places voting restrictions on creditors who are “related to the [debtor] company”. These words are “precise and unequivocal” and, as such, must “play a dominant role in the interpretive process” (Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10). In our view, the appellants’ analogy to the BIA  is not sufficient to overcome the plain wording of this provision.

[61]                          While the appellants are correct that s. 22(3)  was enacted to harmonize the treatment of related parties in the CCAA  and BIA , its history demonstrates that it is not a general conflict of interest provision. Prior to the amendments incorporating s. 22(3)  into the CCAA , the CCAA  clearly allowed creditors to put forward a plan of arrangement (see Houlden, Morawetz and Sarra, at N§33, Red Cross; Re 1078385 Ontario Inc. (2004), 206 O.A.C. 17). In contrast, under the BIA , only debtors could make proposals. Parliament is presumed to have been aware of this obvious difference between the two statutes (see ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 59; see also Third Eye, at para. 57). Despite this difference, Parliament imported, with necessary modification, the wording of the BIA  related creditor provision into the CCAA . Going beyond this language entails accepting that Parliament failed to choose the right words to give effect to its intention, which we do not.

[62]                          Indeed, Parliament did not mindlessly reproduce s. 54(3)  of the BIA  in s. 22(3)  of the CCAA . Rather, it made two modifications to the language of s. 54(3)  to bring it into conformity with the language of the CCAA . First, it changed “proposal” (a defined term in the BIA ) to “compromise or arrangement” (a term used throughout the CCAA ). Second, it changed “debtor” to “company”, recognizing that companies are the only kind of debtor that exists in the CCAA  context.

[63]                          Our view is further supported by Industry Canada’s explanation of the rationale for s. 22(3)  as being to “reduce the ability of debtor companies to organize a restructuring plan that confers additional benefits to related parties” (Office of the Superintendent of Bankruptcy Canada, Bill C-12: Clause by Clause Analysis, developed by Industry Canada, last updated March 24, 2015 (online), cl. 71, s. 22 (emphasis added); see also Standing Senate Committee on Banking, Trade and Commerce, at p. 151).

[64]                          Finally, we note that the CCAA  contains other mechanisms that attenuate the concern that a creditor with conflicting legal interests with respect to a plan it proposes may distort the creditors’ vote. Although we reject the appellants’ interpretation of s. 22(3) , that section still bars creditors who are related to the debtor company from voting in favour of any plan. Additionally, creditors who do not share a sufficient commonality of interest may be forced to vote in separate classes (s. 22(1)  and (2) ), and, as we will explain, a supervising judge may bar a creditor from voting where the creditor is acting for an improper purpose.

(2)          Discretion to Bar a Creditor From Voting in Furtherance of an Improper Purpose

[65]                          There is no dispute that the CCAA  is silent on when a creditor who is otherwise entitled to vote on a plan can be barred from voting. However, CCAA  supervising judges are often called upon “to sanction measures for which there is no explicit authority in the CCAA ” (Century Services, at para. 61; see also para. 62). In Century Services, this Court endorsed a “hierarchical” approach to determining whether jurisdiction exists to sanction a proposed measure: “courts [must] rely first on an interpretation of the provisions of the CCAA  text before turning to inherent or equitable jurisdiction to anchor measures taken in a CCAA  proceeding” (para. 65). In most circumstances, a purposive and liberal interpretation of the provisions of the CCAA  will be sufficient “to ground measures necessary to achieve its objectives” (para. 65).

[66]                          Applying this approach, we conclude that jurisdiction exists under s. 11  of the CCAA  to bar a creditor from voting on a plan of arrangement or compromise where the creditor is acting for an improper purpose. 

[67]                          Courts have long recognized that s. 11  of the CCAA  signals legislative endorsement of the “broad reading of CCAA  authority developed by the jurisprudence” (Century Services, at para. 68). Section 11  states:

General power of court

11 Despite anything in the Bankruptcy and Insolvency Act  or the Winding-up and Restructuring Act , if an application is made under this Act in respect of a debtor company, the court, on the application of any person interested in the matter, may, subject to the restrictions set out in this Act, on notice to any other person or without notice as it may see fit, make any order that it considers appropriate in the circumstances. 

On the plain wording of the provision, the jurisdiction granted by s. 11  is constrained only by restrictions set out in the CCAA  itself, and the requirement that the order made be “appropriate in the circumstances”.

[68]                          Where a party seeks an order relating to a matter that falls within the supervising judge’s purview, and for which there is no CCAA  provision conferring more specific jurisdiction, s. 11  necessarily is the provision of first resort in anchoring jurisdiction. As Blair J.A. put it in Stelco, s. 11 “for the most part supplants the need to resort to inherent jurisdiction” in the CCAA  context (para. 36).

[69]                          Oversight of the plan negotiation, voting, and approval process falls squarely within the supervising judge’s purview. As indicated, there are no specific provisions in the CCAA  which govern when a creditor who is otherwise eligible to vote on a plan may nonetheless be barred from voting. Nor is there any provision in the CCAA  which suggests that a creditor has an absolute right to vote on a plan that cannot be displaced by a proper exercise of judicial discretion. However, given that the CCAA  regime contemplates creditor participation in decision-making as an integral facet of the workout regime, creditors should only be barred from voting where the circumstances demand such an outcome. In other words, it is necessarily a discretionary, circumstance-specific inquiry.

[70]                          Thus, it is apparent that s. 11 serves as the source of the supervising judge’s jurisdiction to issue a discretionary order barring a creditor from voting on a plan of arrangement. The exercise of this discretion must further the remedial objectives of the CCAA  and be guided by the baseline considerations of appropriateness, good faith, and due diligence. This means that, where a creditor is seeking to exercise its voting rights in a manner that frustrates, undermines, or runs counter to those objectives — that is, acting for an “improper purpose” — the supervising judge has the discretion to bar that creditor from voting.

[71]                          The discretion to bar a creditor from voting in furtherance of an improper purpose under the CCAA  parallels the similar discretion that exists under the BIA , which was recognized in Laserworks Computer Services Inc. (Bankruptcy), Re, 1998 NSCA 42, 165 N.S.R. (2d) 296. In Laserworks, the Nova Scotia Court of Appeal concluded that the discretion to bar a creditor from voting in this way stemmed from the court’s power, inherent in the scheme of the BIA , to supervise “[e]ach step in the bankruptcy process” (at para. 41), as reflected in ss. 43(7), 108(3), and 187(9) of the Act. The court explained that s. 187(9)  specifically grants the power to remedy a “substantial injustice”, which arises “when the BIA  is used for an improper purpose” (para. 54). The court held that “[a]n improper purpose is any purpose collateral to the purpose for which the bankruptcy and insolvency legislation was enacted by Parliament” (para. 54).

[72]                          While not determinative, the existence of this discretion under the BIA  lends support to the existence of similar discretion under the CCAA  for two reasons.

[73]                          First, this conclusion would be consistent with this Court’s recognition that the CCAA  “offers a more flexible mechanism with greater judicial discretion” than the BIA  (Century Services, at para. 14 (emphasis added)).

[74]                          Second, this Court has recognized the benefits of harmonizing the two statutes to the extent possible. For example, in Indalex, the Court observed that “in order to avoid a race to liquidation under the BIA , courts will favour an interpretation of the CCAA  that affords creditors analogous entitlements” to those received under the BIA  (para. 51; see also Century Services, at para. 24; Nortel Networks Corp., Re, 2015 ONCA 681, 391 D.L.R. (4th) 283, at paras. 34-46). Thus, where the statutes are capable of bearing a harmonious interpretation, that interpretation ought to be preferred “to avoid the ills that can arise from [insolvency] ‘statute-shopping’” (Kitchener Frame Ltd., 2012 ONSC 234, 86 C.B.R. (5th) 274, at para. 78; see also para. 73). In our view, the articulation of “improper purpose” set out in Laserworks — that is, any purpose collateral to the purpose of insolvency legislation — is entirely harmonious with the nature and scope of judicial discretion afforded by the CCAA . Indeed, as we have explained, this discretion is to be exercised in accordance with the CCAA ’s objectives as an insolvency statute.

[75]                          We also observe that the recognition of this discretion under the CCAA  advances the basic fairness that “permeates Canadian insolvency law and practice” (Sarra, “The Oscillating Pendulum: Canada’s Sesquicentennial and Finding the Equilibrium for Insolvency Law”, at p. 27; see also Century Services, at paras. 70 and 77). As Professor Sarra observes, fairness demands that supervising judges be in a position to recognize and meaningfully address circumstances in which parties are working against the goals of the statute:

The Canadian insolvency regime is based on the assumption that creditors and the debtor share a common goal of maximizing recoveries. The substantive aspect of fairness in the insolvency regime is based on the assumption that all involved parties face real economic risks. Unfairness resides where only some face these risks, while others actually benefit from the situation . . . . If the CCAA  is to be interpreted in a purposive way, the courts must be able to recognize when people have conflicting interests and are working actively against the goals of the statute.

 

(“The Oscillating Pendulum: Canada’s Sesquicentennial and Finding the Equilibrium for Insolvency Law”, at p. 30 (emphasis added))

In this vein, the supervising judge’s oversight of the CCAA  voting regime must not only ensure strict compliance with the Act, but should further its goals as well. We are of the view that the policy objectives of the CCAA  necessitate the recognition of the discretion to bar a creditor from voting where the creditor is acting for an improper purpose.

[76]                          Whether this discretion ought to be exercised in a particular case is a circumstance-specific inquiry that must balance the various objectives of the CCAA . As this case demonstrates, the supervising judge is best-positioned to undertake this inquiry.

(3)        The Supervising Judge Did Not Err in Prohibiting Callidus From Voting

[77]                          In our view, the supervising judge’s decision to bar Callidus from voting on the New Plan discloses no error justifying appellate intervention. As we have explained, discretionary decisions like this one must be approached from the appropriate posture of deference. It bears mentioning that, when he made this decision, the supervising judge was intimately familiar with Bluberi’s CCAA  proceedings. He had presided over them for over 2 years, received 15 reports from the Monitor, and issued approximately 25 orders.

[78]                          The supervising judge considered the whole of the circumstances and concluded that Callidus’s vote would serve an improper purpose (paras. 45 and 48). We agree with his determination. He was aware that, prior to the vote on the First Plan, Callidus had chosen not to value any of its claim as unsecured and later declined to vote at all — despite the Monitor explicitly inviting it do so^[4]. The supervising judge was also aware that Callidus’s First Plan had failed to receive the other creditors’ approval at the creditors’ meeting of December 15, 2017, and that Callidus had chosen not to take the opportunity to amend or increase the value of its plan at that time, which it was entitled to do (see CCAA, ss. 6  and 7 ; Monitor, I.F., at para. 17). Between the failure of the First Plan and the proposal of the New Plan — which was identical to the First Plan, save for a modest increase of $250,000 — none of the factual circumstances relating to Bluberi’s financial or business affairs had materially changed. However, Callidus sought to value the entirety of its security at nil and, on that basis, sought leave to vote on the New Plan as an unsecured creditor. If Callidus were permitted to vote in this way, the New Plan would certainly have met the s. 6(1)  threshold for approval. In these circumstances, the inescapable inference was that Callidus was attempting to strategically value its security to acquire control over the outcome of the vote and thereby circumvent the creditor democracy the CCAA  protects. Put simply, Callidus was seeking to take a “second kick at the can” and manipulate the vote on the New Plan. The supervising judge made no error in exercising his discretion to prevent Callidus from doing so.

[79]                          Indeed, as the Monitor observes, “Once a plan of arrangement or proposal has been submitted to the creditors of a debtor for voting purposes, to order a second creditors’ meeting to vote on a substantially similar plan would not advance the policy objectives of the CCAA , nor would it serve and enhance the public’s confidence in the process or otherwise serve the ends of justice” (I.F., at para. 18). This is particularly the case given that the cost of having another meeting to vote on the New Plan would have been upwards of $200,000 (see supervising judge’s reasons, at para. 72).

[80]                          We add that Callidus’s course of action was plainly contrary to the expectation that parties act with due diligence in an insolvency proceeding — which, in our view, includes acting with due diligence in valuing their claims and security. At all material times, Bluberi’s Retained Claims have been the sole asset securing Callidus’s claim. Callidus has pointed to nothing in the record that indicates that the value of the Retained Claims has changed. Had Callidus been of the view that the Retained Claims had no value, one would have expected Callidus to have valued its security accordingly prior to the vote on the First Plan, if not earlier. Parenthetically, we note that, irrespective of the timing, an attempt at such a valuation may well have failed. This would have prevented Callidus from voting as an unsecured creditor, even in the absence of Callidus’s improper purpose.

[81]                           As we have indicated, discretionary decisions attract a highly deferential standard of review. Deference demands that review of a discretionary decision begin with a proper characterization of the basis for the decision. Respectfully, the Court of Appeal failed in this regard. The Court of Appeal seized on the supervising judge’s somewhat critical comments relating to Callidus’s goal of being released from the Retained Claims and its conduct throughout the proceedings as being incapable of grounding a finding of improper purpose. However, as we have explained, these considerations did not drive the supervising judge’s conclusion. His conclusion was squarely based on Callidus’ attempt to manipulate the creditors’ vote to ensure that its New Plan would succeed where its First Plan had failed (see supervising judge’s reasons, at paras. 45-48). We see nothing in the Court of Appeal’s reasons that grapples with this decisive impropriety, which goes far beyond a creditor merely acting in its own self-interest.

[82]                          In sum, we see nothing in the supervising judge’s reasons on this point that would justify appellate intervention. Callidus was properly barred from voting on the New Plan.

[83]                          Before moving on, we note that the Court of Appeal addressed two further issues: whether Callidus is “related” to Bluberi within the meaning of s. 22(3)  of the CCAA ; and whether, if permitted to vote, Callidus should be ordered to vote in a separate class from Bluberi’s other creditors (see CCAA, s. 22(1)  and (2) ). Given our conclusion that the supervising judge did not err in barring Callidus from voting on the New Plan on the basis that Callidus was acting for an improper purpose, it is unnecessary to address either of these issues. However, nothing in our reasons should be read as endorsing the Court of Appeal’s analysis of them.

C.            Bluberi’s LFA Should Be Approved as Interim Financing

[84]                          In our view, the supervising judge made no error in approving the LFA as interim financing pursuant to s. 11.2  of the CCAA . Interim financing is a flexible tool that may take on a range of forms. As we will explain, third party litigation funding may be one such form. Whether third party litigation funding should be approved as interim financing is a case-specific inquiry that should have regard to the text of s. 11.2  and the remedial objectives of the CCAA  more generally.

(1)          Interim Financing and Section 11.2 of the CCAA

[85]                          Interim financing, despite being expressly provided for in s. 11.2  of the CCAA , is not defined in the Act. Professor Sarra has described it as “refer[ring] primarily to the working capital that the debtor corporation requires in order to keep operating during restructuring proceedings, as well as to the financing to pay the costs of the workout process” (Rescue! The Companies’ Creditors Arrangement Act , at p. 197). Interim financing used in this way — sometimes referred to as “debtor-in-possession” financing — protects the going-concern value of the debtor company while it develops a workable solution to its insolvency issues (p. 197; Royal Oak Mines Inc., Re (1999), 6 C.B.R. (4th) 314 (Ont. C.J. (Gen. Div.)), at paras. 7, 9 and 24; Boutiques San Francisco Inc. v. Richter & Associés Inc., 2003 CanLII 36955 (Que. Sup. Ct.), at para. 32). That said, interim financing is not limited to providing debtor companies with immediate operating capital. Consistent with the remedial objectives of the CCAA , interim financing at its core enables the preservation and realization of the value of a debtor’s assets.

[86]                          Since 2009, s. 11.2(1)  of the CCAA  has codified a supervising judge’s discretion to approve interim financing, and to grant a corresponding security or charge in favour of the lender in the amount the judge considers appropriate:

Interim financing

11.2 (1) On application by a debtor company and on notice to the secured creditors who are likely to be affected by the security or charge, a court may make an order declaring that all or part of the company’s property is subject to a security or charge — in an amount that the court considers appropriate — in favour of a person specified in the order who agrees to lend to the company an amount approved by the court as being required by the company, having regard to its cash-flow statement. The security or charge may not secure an obligation that exists before the order is made.

[87]                          The breadth of a supervising judge’s discretion to approve interim financing is apparent from the wording of s. 11.2(1) . Aside from the protections regarding notice and pre-filing security, s. 11.2(1)  does not mandate any standard form or terms.^[5] It simply provides that the financing must be in an amount that is “appropriate” and “required by the company, having regard to its cash-flow statement”.

[88]                           The supervising judge may also grant the lender a “super-priority charge” that will rank in priority over the claims of any secured creditors, pursuant to s. 11.2(2) :

Priority — secured creditors

(2) The court may order that the security or charge rank in priority over the claim of any secured creditor of the company.

[89]                          Such charges, also known as “priming liens”, reduce lenders’ risks, thereby incentivizing them to assist insolvent companies (Innovation, Science and Economic Development Canada, Archived — Bill C-55: clause by clause analysis, last updated December 29, 2016 (online), cl. 128, s. 11.2; Wood, at p. 387). As a practical matter, these charges are often the only way to encourage this lending. Normally, a lender protects itself against lending risk by taking a security interest in the borrower’s assets. However, debtor companies under CCAA  protection will often have pledged all or substantially all of their assets to other creditors. Accordingly, without the benefit of a super-priority charge, an interim financing lender would rank behind those other creditors (McElcheran, at pp. 298-99). Although super-priority charges do subordinate secured creditors’ security positions to the interim financing lender’s — a result that was controversial at common law — Parliament has indicated its general acceptance of the trade-offs associated with these charges by enacting s. 11.2(2)  (see M. B. Rotsztain and A. Dostal, “Debtor-In-Possession Financing”, in S. Ben-Ishai and A. Duggan, eds., Canadian Bankruptcy and Insolvency Law: Bill C-55, Statute c. 47 and Beyond (2007), 227, at pp. 228-229 and 240-50). Indeed, this balance was expressly considered by the Standing Senate Committee on Banking, Trade and Commerce that recommended codifying interim financing in the CCAA  (pp. 100-4).

[90]                          Ultimately, whether proposed interim financing should be approved is a question that the supervising judge is best-placed to answer. The CCAA sets out a number of factors that help guide the exercise of this discretion. The inclusion of these factors in s. 11.2  was informed by the Standing Senate Committee on Banking, Trade and Commerce’s view that they would help meet the “fundamental principles” that have guided the development of Canadian insolvency law, including “fairness, predictability and efficiency” (p. 103; see also Innovation, Science and Economic Development Canada, cl. 128, s. 11.2). In deciding whether to grant interim financing, the supervising judge is to consider the following non-exhaustive list of factors:

Factors to be considered

(4) In deciding whether to make an order, the court is to consider, among other things,

(a) the period during which the company is expected to be subject to proceedings under this Act;

(b) how the company’s business and financial affairs are to be managed during the proceedings;

(c) whether the company’s management has the confidence of its major creditors;

(d) whether the loan would enhance the prospects of a viable compromise or arrangement being made in respect of the company;

(e) the nature and value of the company’s property;

(f) whether any creditor would be materially prejudiced as a result of the security or charge; and

(g) the monitor’s report referred to in paragraph 23(1) (b), if any.

 

(CCAA, s. 11.2(4) )

[91]                          Prior to the coming into force of the above provisions in 2009, courts had been using the general discretion conferred by s. 11 to authorize interim financing and associated super-priority charges (Century Services, at para. 62). Section 11.2  largely codifies the approaches those courts have taken (Wood, at p. 388; McElcheran, at p. 301). As a result, where appropriate, guidance may be drawn from the pre-codification interim financing jurisprudence.

[92]                          As with other measures available under the CCAA , interim financing is a flexible tool that may take different forms or attract different considerations in each case. Below, we explain that third party litigation funding may, in appropriate cases, be one such form.

(2)          Supervising Judges May Approve Third Party Litigation Funding as Interim Financing

[93]                          Third party litigation funding generally involves “a third party, otherwise unconnected to the litigation, agree[ing] to pay some or all of a party’s litigation costs, in exchange for a portion of that party’s recovery in damages or costs” (R. K. Agarwal and D. Fenton, “Beyond Access to Justice: Litigation Funding Agreements Outside the Class Actions Context” (2017), 59 Can. Bus. L. J. 65, at p. 65). Third party litigation funding can take various forms. A common model involves the litigation funder agreeing to pay a plaintiff’s disbursements and indemnify the plaintiff in the event of an adverse cost award in exchange for a share of the proceeds of any successful litigation or settlement (see Dugal v. Manulife Financial Corp., 2011 ONSC 1785, 105 O.R. (3d) 364; Bayens).

[94]                          Outside of the CCAA  context, the approval of third party litigation funding agreements has been somewhat controversial. Part of that controversy arises from the potential of these agreements to offend the common law doctrines of champerty and maintenance.^[6] The tort of maintenance prohibits “officious intermeddling with a lawsuit which in no way belongs to one” (L. N. Klar et al., Remedies in Tort (loose-leaf), vol. 1, by L. Berry, ed., at p. 14-11, citing Langtry v. Dumoulin (1884), 7 O.R. 644 (Ch. Div.), at p. 661). Champerty is a species of maintenance that involves an agreement to share in the proceeds or otherwise profit from a successful suit (McIntyre Estate v. Ontario (Attorney General) (2002), 218 D.L.R. (4th) 193 (Ont. C.A.), at para. 26).

[95]                          Building on jurisprudence holding that contingency fee arrangements are not champertous where they are not motivated by an improper purpose (e.g., McIntyre Estate), lower courts have increasingly come to recognize that litigation funding agreements are also not per se champertous. This development has been focussed within class action proceedings, where it arose as a response to barriers like adverse cost awards, which were stymieing litigants’ access to justice (see Dugal, at para. 33; Marcotte v. Banque de Montréal, 2015 QCCS 1915, at paras. 43-44 (CanLII); Houle v. St. Jude Medical Inc., 2017 ONSC 5129, 9 C.P.C. (8th) 321, at para. 52, aff’d 2018 ONSC 6352, 429 D.L.R. (4th) 739 (Div. Ct.); see also Stanway v. Wyeth, 2013 BCSC 1585, 56 B.C.L.R. (5th) 192, at para. 13). The jurisprudence on the approval of third party litigation funding agreements in the class action context — and indeed, the parameters of their legality generally — is still evolving, and no party before this Court has invited us to evaluate it.

[96]                          That said, insofar as third party litigation funding agreements are not per se illegal, there is no principled basis upon which to restrict supervising judges from approving such agreements as interim financing in appropriate cases. We acknowledge that this funding differs from more common forms of interim financing that are simply designed to help the debtor “keep the lights on” (see Royal Oak, at paras. 7 and 24). However, in circumstances like the case at bar, where there is a single litigation asset that could be monetized for the benefit of creditors, the objective of maximizing creditor recovery has taken centre stage. In those circumstances, litigation funding furthers the basic purpose of interim financing: allowing the debtor to realize on the value of its assets.

[97]                          We conclude that third party litigation funding agreements may be approved as interim financing in CCAA  proceedings when the supervising judge determines that doing so would be fair and appropriate, having regard to all the circumstances and the objectives of the Act. This requires consideration of the specific factors set out in s. 11.2(4)  of the CCAA . That said, these factors need not be mechanically applied or individually reviewed by the supervising judge. Indeed, not all of them will be significant in every case, nor are they exhaustive. Further guidance may be drawn from other areas in which third party litigation funding agreements have been approved.

[98]                          The foregoing is consistent with the practice that is already occurring in lower courts. Most notably, in Crystallex, the Ontario Court of Appeal approved a third party litigation funding agreement in circumstances substantially similar to the case at bar. Crystallex involved a mining company that had the right to develop a large gold deposit in Venezuela. Crystallex eventually became insolvent and (similar to Bluberi) was left with only a single significant asset: a US$3.4 billion arbitration claim against Venezuela. After entering CCAA  protection, Crystallex sought the approval of a third party litigation funding agreement. The agreement contemplated that the lender would advance substantial funds to finance the arbitration in exchange for, among other things, a percentage of the net proceeds of any award or settlement. The supervising judge approved the agreement as interim financing pursuant to s. 11.2 . The Court of Appeal unanimously found no error in the supervising judge’s exercise of discretion. It concluded that s. 11.2  “does not restrict the ability of the supervising judge, where appropriate, to approve the grant of a charge securing financing before a plan is approved that may continue after the company emerges from CCAA  protection” (para. 68).

[99]                          A key argument raised by the creditors in Crystallex — and one that Callidus and the Creditors’ Group have put before us now — was that the litigation funding agreement at issue was a plan of arrangement and not interim financing. This was significant because, if the agreement was in fact a plan, it would have had to be put to a creditors’ vote pursuant to ss. 4  and 5  of the CCAA  prior to receiving court approval. The court in Crystallex rejected this argument, as do we.

[100]                      There is no definition of plan of arrangement in the CCAA . In fact, the CCAA  does not refer to plans at all — it only refers to an “arrangement” or “compromise” (see ss. 4  and 5 ). The authors of Bankruptcy and Insolvency Law of Canada offer the following general definition of these terms, relying on early English case law:

A “compromise” presupposes some dispute about the rights compromised and a settling of that dispute on terms that are satisfactory to the debtor and the creditor. An agreement to accept less than 100¢ on the dollar would be a compromise where the debtor disputes the debt or lacks the means to pay it. “Arrangement” is a broader word than “compromise” and is not limited to something analogous to a compromise. It would include any scheme for reorganizing the affairs of the debtor: Re Guardian Assur. Co., [1917] 1 Ch. 431, 61 Sol. Jo 232, [1917] H.B.R. 113 (C.A.); Re Refund of Dues under Timber Regulations, [1935] A.C. 185 (P.C.).

 

(Houlden, Morawetz and Sarra, at N§33)

[101]                      The apparent breadth of these terms notwithstanding, they do have some limits. More recent jurisprudence suggests that they require, at minimum, some compromise of creditors’ rights. For example, in Crystallex the litigation funding agreement at issue (known as the Tenor DIP facility) was held not to be a plan of arrangement because it did not “compromise the terms of [the creditors’] indebtedness or take away . . . their legal rights” (para. 93). The Court of Appeal adopted the following reasoning from the lower court’s decision, with which we substantially agree:

A “plan of arrangement” or a “compromise” is not defined in the CCAA . It is, however, to be an arrangement or compromise between a debtor and its creditors. The Tenor DIP facility is not on its face such an arrangement or compromise between Crystallex and its creditors. Importantly the rights of the noteholders are not taken away from them by the Tenor DIP facility. The noteholders are unsecured creditors. Their rights are to sue to judgment and enforce the judgment. If not paid, they have a right to apply for a bankruptcy order under the BIA . Under the CCAA , they have the right to vote on a plan of arrangement or compromise. None of these rights are taken away by the Tenor DIP.

 

(Re Crystallex International Corporation, 2012 ONSC 2125, 91 C.B.R. (5th) 169, at para. 50)

[102]                      Setting out an exhaustive definition of plan of arrangement or compromise is unnecessary to resolve these appeals. For our purposes, it is sufficient to conclude that plans of arrangement require at least some compromise of creditors’ rights. It follows that a third party litigation funding agreement aimed at extending financing to a debtor company to realize on the value of a litigation asset does not necessarily constitute a plan of arrangement. We would leave it to supervising judges to determine whether, in the particular circumstances of the case before them, a particular third party litigation funding agreement contains terms that effectively convert it into a plan of arrangement. So long as the agreement does not contain such terms, it may be approved as interim financing pursuant to s. 11.2  of the CCAA .

[103]                      We add that there may be circumstances in which a third party litigation funding agreement may contain or incorporate a plan of arrangement (e.g., if it contemplates a plan for distribution of litigation proceeds among creditors). Alternatively, a supervising judge may determine that, despite an agreement itself not being a plan of arrangement, it should be packaged with a plan and submitted to a creditors’ vote. That said, we repeat that third party litigation funding agreements are not necessarily, or even generally, plans of arrangement.

[104]                      None of the foregoing is seriously contested before us. The parties essentially agree that third party litigation funding agreements can be approved as interim financing. The dispute between them focusses on whether the supervising judge erred in exercising his discretion to approve the LFA in the absence of a vote of the creditors, either because it was a plan of arrangement or because it should have been accompanied by a plan of arrangement. We turn to these issues now.

(3)          The Supervising Judge Did Not Err in Approving the LFA

[105]                      In our view, there is no basis upon which to interfere with the supervising judge’s exercise of his discretion to approve the LFA as interim financing. The supervising judge considered the LFA to be fair and reasonable, drawing guidance from the principles relevant to approving similar agreements in the class action context (para. 74, citing Bayens, at para. 41; Hayes, at para. 4). In particular, he canvassed the terms upon which Bentham and Bluberi’s lawyers would be paid in the event the litigation was successful, the risks they were taking by investing in the litigation, and the extent of Bentham’s control over the litigation going forward (paras. 79 and 81). The supervising judge also considered the unique objectives of CCAA  proceedings in distinguishing the LFA from ostensibly similar agreements that had not received approval in the class action context (paras. 81-82, distinguishing Houle). His consideration of those objectives is also apparent from his reliance on Crystallex, which, as we have explained, involved the approval of interim financing in circumstances substantially similar to the case at bar (see paras. 67 and 71). We see no error in principle or unreasonableness to this approach.

[106]                      While the supervising judge did not canvass each of the factors set out in s. 11.2(4)  of the CCAA  individually before reaching his conclusion, this was not itself an error. A review of the supervising judge’s reasons as a whole, combined with a recognition of his manifest experience with Bluberi’s CCAA  proceedings, leads us to conclude that the factors listed in s. 11.2(4)  concern matters that could not have escaped his attention and due consideration. It bears repeating that, at the time of his decision, the supervising judge had been seized of these proceedings for well over two years and had the benefit of the Monitor’s assistance. With respect to each of the s. 11.2(4)  factors, we note that:

•            the judge’s supervisory role would have made him aware of the potential length of Bluberi’s CCAA  proceedings and the extent of creditor support for Bluberi’s management (s. 11.2(4) (a) and (c)), though we observe that these factors appear to be less significant than the others in the context of this particular case (see para. 96);

•            the LFA itself explains “how the company’s business and financial affairs are to be managed during the proceedings” (s. 11.2(4) (b));

•            the supervising judge was of the view that the LFA would enhance the prospect of a viable plan, as he accepted (1) that Bluberi intended to submit a plan and (2) Bluberi’s submission that approval of the LFA would assist it in finalizing a plan “with a view towards achieving maximum realization” of its assets (at para. 68, citing 9354-9186 Québec inc. and 9354-9178 Québec inc.’s application, at para. 99; s. 11.2(4) (d));

•            the supervising judge was apprised of the “nature and value” of Bluberi’s property, which was clearly limited to the Retained Claims (s. 11.2(4)(e));

•            the supervising judge implicitly concluded that the creditors would not be materially prejudiced by the Litigation Financing Charge, as he stated that “[c]onsidering the results of the vote [on the First Plan], and given the particular circumstances of this matter, the only potential recovery lies with the lawsuit that the Debtors will launch” (at para. 91 (emphasis added); s. 11.2(4)(f)); and

•            the supervising judge was also well aware of the Monitor’s reports, and drew from the most recent report at various points in his reasons (see, e.g., paras. 64-65 and fn. 1; s. 11.2(4)(g)). It is worth noting that the Monitor supported approving the LFA as interim financing.

[107]                      In our view, it is apparent that the supervising judge was focussed on the fairness at stake to all parties, the specific objectives of the CCAA , and the particular circumstances of this case when he approved the LFA as interim financing. We cannot say that he erred in the exercise of his discretion. Although we are unsure whether the LFA was as favourable to Bluberi’s creditors as it might have been — to some extent, it does prioritize Bentham’s recovery over theirs — we nonetheless defer to the supervising judge’s exercise of discretion.

[108]                      To the extent the Court of Appeal held otherwise, we respectfully do not agree. Generally speaking, our view is that the Court of Appeal again failed to afford the supervising judge the necessary deference. More specifically, we wish to comment on three of the purported errors in the supervising judge’s decision that the Court of Appeal identified.

[109]                      First, it follows from our conclusion that LFAs can constitute interim financing that the Court of Appeal was incorrect to hold that approving the LFA as interim financing “transcended the nature of such financing” (para. 78).

[110]                      Second, in our view, the Court of Appeal was wrong to conclude that the LFA was a plan of arrangement, and that Crystallex was distinguishable on its facts. The Court of Appeal held that the LFA and associated super-priority Litigation Financing Charge formed a plan because they subordinated the rights of Bluberi’s creditors to those of Bentham.

[111]                      We agree with the supervising judge that the LFA is not a plan of arrangement because it does not propose any compromise of the creditors’ rights. To borrow from the Court of Appeal in Crystallex, Bluberi’s litigation claim is akin to a “pot of gold” (para. 4). Plans of arrangement determine how to distribute that pot. They do not generally determine what a debtor company should do to fill it. The fact that the creditors may walk away with more or less money at the end of the day does not change the nature or existence of their rights to access the pot once it is filled, nor can it be said to “compromise” those rights. When the “pot of gold” is secure — that is, in the event of any litigation or settlement — the net funds will be distributed to the creditors. Here, if the Retained Claims generate funds in excess of Bluberi’s total liabilities, the creditors will be paid in full; if there is a shortfall, a plan of arrangement or compromise will determine how the funds are distributed. Bluberi has committed to proposing such a plan (see supervising judge’s reasons, at para. 68, distinguishing Cliffs Over Maple Bay Investments Ltd. v. Fisgard Capital Corp., 2008 BCCA 327, 296 D.L.R. (4th) 577).

[112]                      This is the very same conclusion that was reached in Crystallex in similar circumstances:

The facts of this case are unusual: there is a single “pot of gold” asset which, if realized, will provide significantly more than required to repay the creditors. The supervising judge was in the best position to balance the interests of all stakeholders. I am of the view that the supervising judge’s exercise of discretion in approving the Tenor DIP Loan was reasonable and appropriate, despite having the effect of constraining the negotiating position of the creditors.

. . .

 

. . . While the approval of the Tenor DIP Loan affected the Noteholders’ leverage in negotiating a plan, and has made the negotiation of a plan more complex, it did not compromise the terms of their indebtedness or take away any of their legal rights. It is accordingly not an arrangement, and a creditor vote was not required. [paras. 82 and 93]

[113]                      We disagree with the Court of Appeal that Crystallex should be distinguished on the basis that it involved a single option for creditor recovery (i.e., the arbitration) while this case involves two (i.e., litigation of the Retained Claims and Callidus’s New Plan). Given the supervising judge’s conclusion that Callidus could not vote on the New Plan, that plan was not a viable alternative to the LFA. This left the LFA and litigation of the Retained Claims as the “only potential recovery” for Bluberi’s creditors (supervising judge’s reasons, at para. 91). Perhaps more significantly, even if there were multiple options for creditor recovery in either Crystallex or this case, the mere presence of those options would not necessarily have changed the character of the third party litigation funding agreements at issue or converted them into plans of arrangement. The question for the supervising judge in each case is whether the agreement before them ought to be approved as interim financing. While other options for creditor recovery may be relevant to that discretionary decision, they are not determinative. 

[114]                      We add that the Litigation Financing Charge does not convert the LFA into a plan of arrangement by “subordinat[ing]” creditors’ rights (C.A. reasons, at para. 90). We accept that this charge would have the effect of placing secured creditors like Callidus behind in priority to Bentham. However, this result is expressly provided for in s. 11.2  of the CCAA . This “subordination” does not convert statutorily authorized interim financing into a plan of arrangement. Accepting this interpretation would effectively extinguish the supervising judge’s authority to approve these charges without a creditors’ vote pursuant to s. 11.2(2) .

[115]                      Third, we are of the view that the Court of Appeal was wrong to decide that the supervising judge should have submitted the LFA together with a plan to the creditors for their approval (para. 89). As we have indicated, whether to insist that a debtor package their third party litigation funding agreement with a plan is a discretionary decision for the supervising judge to make.

[116]                      Finally, at the appellants’ insistence, we point out that the Court of Appeal’s suggestion that the LFA is somehow “akin to an equity investment” was unhelpful and potentially confusing (para. 90). That said, this characterization was clearly obiter dictum. To the extent that the Court of Appeal relied on it as support for the conclusion that the LFA was a plan of arrangement, we have already explained why we believe the Court of Appeal was mistaken on this point.

VI.        Conclusion

[117]                      For these reasons, at the conclusion of the hearing we allowed these appeals and reinstated the supervising judge’s order. Costs were awarded to the appellants in this Court and the Court of Appeal.

 

                    Appeals allowed with costs in the Court and in the Court of Appeal.

                    Solicitors for the appellants/interveners 9354‑9186 Québec inc. and 9354‑9178 Québec inc.: Davies Ward Phillips & Vineberg, Montréal.

                    Solicitors for the appellants/interveners IMF Bentham Limited (now known as Omni Bridgeway Limited) and Bentham IMF Capital Limited (now known as Omni Bridgeway Capital (Canada) Limited): Woods, Montréal.

                    Solicitors for the respondent Callidus Capital Corporation: Gowling WLG (Canada), Montréal.

                    Solicitors for the respondents International Game Technology, Deloitte LLP, Luc Carignan, François Vigneault, Philippe Millette, Francis Proulx and François Pelletier: McCarthy Tétrault, Montréal.

                    Solicitors for the intervener Ernst & Young Inc.: Stikeman Elliott, Montréal.

                    Solicitors for the interveners the Insolvency Institute of Canada and the Canadian Association of Insolvency and Restructuring Professionals: Norton Rose Fulbright Canada, Montréal.