Companies' Creditors Arrangement Act & iTV Games Inc. Estate

Companies' Creditors Arrangement Act & iTV Games Inc. Estate

The court applied the parties' express New York choice of law clause and the uncontroverted New York counsel opinion to hold New York law governs the agreement and the confession of judgment; enforcement of the New York judgment including the increased US$1,031,250 is not contrary to British Columbia public policy; and even if Canadian s.347 applied, interest runs from the date of closing (June 12, 2000) yielding an effective rate under 60% per annum. Therefore the creditor's claim is to be fixed for CCAA purposes at the Canadian dollar equivalent of the New York judgment, CAD$4,939,893.67.

Citation
2001 BCSC 1391
Parties
Petitioner: iTV Games Inc.; Applicant/creditor: Philip R. Fioretti; Remaining Respondent/secured Creditor: Guerrino Nichele; Remaining Respondent/secured Creditor: Montanello Ventures Inc.; Remaining Respondent/secured Creditor: Loon Properties Inc.; Remaining Respondent/secured Creditor: Antonio Ottavio Boffo
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
10 October 2001
Procedural Posture
Companies' Creditors Arrangement Act (ccaa) Proceedings / Summary Application to Determine Amount of Creditor's Claim for Voting and CCAA Purposes (preliminary Creditors' Meeting)
Outcome
Court determined the amount of the applicant's claim for the purposes of the CCAA proceedings and allowed the claim in full.
Legal Topics
Enforceability of Foreign Judgment, Choice of Law, Usury Under Criminal Code S.347, Confession of Judgment, Public Policy Defense, CCAA Claim Determination
Source Language
English
Corporate Insolvency Contract Law Private International Law Enforcement of Foreign Judgments Criminal Law (usury) Enforceability of Foreign Judgment Choice of Law Usury Under Criminal Code S.347 +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 6 Authorities cited 11 Party arguments 2 Amounts and remedies 5
Sign in to unlock

Parties

iTV Games Inc.

Petitioner

Philip R. Fioretti

Applicant/creditor

Guerrino Nichele

Remaining Respondent/secured Creditor

Montanello Ventures Inc.

Remaining Respondent/secured Creditor

Loon Properties Inc.

Remaining Respondent/secured Creditor

Antonio Ottavio Boffo

Remaining Respondent/secured Creditor

Procedural Posture

Companies' Creditors Arrangement Act (ccaa) Proceedings / Summary Application to Determine Amount of Creditor's Claim for Voting and CCAA Purposes (preliminary Creditors' Meeting)

Legal Issues

  1. 1 Whether New York law chosen by the parties governs the agreement and the confession of judgment and thus the enforceability of the New York judgment in British Columbia
  2. 2 Whether the increased payment of US$1,031,250 constitutes usurious interest contrary to s.347 of the Criminal Code (Canada) and is therefore unenforceable
  3. 3 Whether enforcement of the New York judgment and its increased amount is contrary to public policy of British Columbia

Ratio Decidendi

The court applied the parties' express New York choice of law clause and the uncontroverted New York counsel opinion to hold New York law governs the agreement and the confession of judgment; enforcement of the New York judgment including the increased US$1,031,250 is not contrary to British Columbia public policy; and even if Canadian s.347 applied, interest runs from the date of closing (June 12, 2000) yielding an effective rate under 60% per annum. Therefore the creditor's claim is to be fixed for CCAA purposes at the Canadian dollar equivalent of the New York judgment, CAD$4,939,893.67.

Court Disposition

Court determined the amount of the applicant's claim for the purposes of the CCAA proceedings and allowed the claim in full.

Orders

  • For the purposes of these proceedings pursuant to the Companies' Creditors Arrangement Act, the claim of Philip R. Fioretti is determined in the amount of $4,939,893.67 Cdn.
  • Philip R. Fioretti shall have his costs.