8640025 Canada Inc. (Re)

8640025 Canada Inc. (Re)

The court held that the Claiming Parties' attempt to recover or challenge title to assets transferred to Navigata under the December Vesting Order constituted a plain and obvious abuse of process and a collateral attack on a final court-approved vesting order; the Monitor's Certificate met the order's requirements and title vested, therefore the impugned portions of the notice of application were struck to the extent they sought return or challenge of assets transferred under that order.

Citation
2018 BCSC 1260
Parties
Applicant (moved to Strike Portions of Application): Navigata Communications Limited; Monitor/respondent: Office of the Monitor (unnamed Monitor); Claimant/applicant (may 2 Application): 9151-4877 Quebec Inc. dba Dialek Telecom and others (Claiming Parties); Respondent/interested Party: Teliphone Corp.; Petitioner: 8640025 Canada Inc.; Petitioner: Teliphone Data Centres Inc.
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
13 June 2018
Procedural Posture
Companies' Creditors Arrangement Act (ccaa) Corporate Insolvency Proceeding With Related Canada Business Corporations Act Issues / Oral Ruling on Application to Strike Portions of a Notice of Application (rule 9 5(1)(d) / Inherent Jurisdiction)
Outcome
Application to strike granted in part
Legal Topics
Vesting Order, Monitor's Certificate, Abuse of Process, Issue Estoppel, Res Judicata, Collateral Attack, Striking Pleadings/notices
Source Language
English
Insolvency Law Civil Procedure Property Law Appeal Processes Judicial Review/administration of Justice Vesting Order Monitor's Certificate Abuse of Process +4 more

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Parties

Navigata Communications Limited

Applicant (moved to Strike Portions of Application)

Office of the Monitor (unnamed Monitor)

Monitor/respondent

9151-4877 Quebec Inc. dba Dialek Telecom and others (Claiming Parties)

Claimant/applicant (may 2 Application)

Teliphone Corp.

Respondent/interested Party

8640025 Canada Inc.

Petitioner

Teliphone Data Centres Inc.

Petitioner

Procedural Posture

Companies' Creditors Arrangement Act (ccaa) Corporate Insolvency Proceeding With Related Canada Business Corporations Act Issues / Oral Ruling on Application to Strike Portions of a Notice of Application (rule 9 5(1)(d) / Inherent Jurisdiction)

Legal Issues

  1. 1 Whether Rule 9-5(1)(d) permits striking portions of a notice of application in CCAA proceedings or whether the court's inherent jurisdiction permits striking for abuse of process
  2. 2 Whether the Claiming Parties' requests to recover assets transferred under the December Vesting Order are barred by issue estoppel or res judicata or constitute a collateral attack
  3. 3 Whether the Monitor's Certificate was misleading and whether any alleged misleading conduct permits a collateral attack on the December Vesting Order

Ratio Decidendi

The court held that the Claiming Parties' attempt to recover or challenge title to assets transferred to Navigata under the December Vesting Order constituted a plain and obvious abuse of process and a collateral attack on a final court-approved vesting order; the Monitor's Certificate met the order's requirements and title vested, therefore the impugned portions of the notice of application were struck to the extent they sought return or challenge of assets transferred under that order.

Court Disposition

Application to strike granted in part

Orders

  • Paragraph B of the Claiming Parties' May 2 application struck except insofar as it claims assets not sold pursuant to the December Vesting Order or the earlier September sale order
  • Paragraph E(a), (b) and (c) of the Claiming Parties' May 2 application struck to the extent they seek return of any assets transferred to Navigata pursuant to the December Vesting Order