OpenHydro Technology Canada Ltd. (Re)

OpenHydro Technology Canada Ltd. (Re)

The Court granted the Initial Order and Charging Order but modified the proposed stay to exempt existing Federal Court in rem proceedings (Scotia Tide and the OTC03 Turbine Control Centre) from the provincial CCAA stay, and formally requested the aid and recognition of the Federal Court; the provincial court cannot unilaterally restrain Federal Court in rem jurisdiction and the Federal Court retains discretion to stay its proceedings.

Citation
2018 NSSC 283
Parties
Applicant: OpenHydro Technology Canada Ltd.; Respondent in Rem Creditor: RMI Marine Limited; Respondent in Rem Creditor: BBC Chartering Carriers GmbH & Co. K.G.; Respondent in Rem Creditor: DP World Saint John Inc.; Respondent in Rem Creditor: SGS Saint John Diving; Respondent in Rem Creditor: Spar Marine Limited; Secured Creditor: HSBC; Interested Party: Province of Nova Scotia
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
7 November 2018
Procedural Posture
Conversion of NOI to CCAA Initial Application / Initial Application for CCAA Initial Order and Charging Order With Temporary Stay
Outcome
Initial Order and Charging Order granted with modification exempting Federal Court in rem proceedings from the stay and requesting Federal Court aid and recognition
Legal Topics
CCAA Initial Order, Stay of Proceedings, In Rem Claims, Comity Between Courts, Charging Order
Source Language
English
Bankruptcy and Insolvency Maritime Law Civil Procedure Commercial Law CCAA Initial Order Stay of Proceedings In Rem Claims Comity Between Courts +1 more

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Parties

OpenHydro Technology Canada Ltd.

Applicant

RMI Marine Limited

Respondent in Rem Creditor

BBC Chartering Carriers GmbH & Co. K.G.

Respondent in Rem Creditor

DP World Saint John Inc.

Respondent in Rem Creditor

SGS Saint John Diving

Respondent in Rem Creditor

Spar Marine Limited

Respondent in Rem Creditor

HSBC

Secured Creditor

Province of Nova Scotia

Interested Party

Procedural Posture

Conversion of NOI to CCAA Initial Application / Initial Application for CCAA Initial Order and Charging Order With Temporary Stay

Legal Issues

  1. 1 Whether a provincial superior court should include Federal Court in rem proceedings within a CCAA initial stay
  2. 2 Whether this Court can or should issue an order staying Federal Court maritime in rem proceedings or directing the Federal Court to stay
  3. 3 Whether an Initial Order and Charging Order should be granted to permit a 30‑day restructuring feasibility assessment

Ratio Decidendi

The Court granted the Initial Order and Charging Order but modified the proposed stay to exempt existing Federal Court in rem proceedings (Scotia Tide and the OTC03 Turbine Control Centre) from the provincial CCAA stay, and formally requested the aid and recognition of the Federal Court; the provincial court cannot unilaterally restrain Federal Court in rem jurisdiction and the Federal Court retains discretion to stay its proceedings.

Court Disposition

Initial Order and Charging Order granted with modification exempting Federal Court in rem proceedings from the stay and requesting Federal Court aid and recognition

Orders

  • Grant Initial Order under the CCAA on the proposed terms as modified
  • Grant Charging Order as requested