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Court File No. 09-CL-8456-00CL BETWEEN Court File No. 09-CL-8456-00CL ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED AND IN THE MATTER OF JAMES ROBERT TUCKER, RICHARD HEIS AND ALLAN WATSON GRAHAM OF KPMG LLP, AS JOINT ADMINISTRATORS Applicants AND IN THE MATTER OF AERO INVENTORY(UK) LIMITED and AERO INVENTORY PLC Respondents APPLICATION UNDER SECTION 46 AND FOLLOWING OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C- 36, AS AMENDED BOOK OF AUTHORITIES OF AIR CANADA (Returnable July 24, 2014) Dated: July 10, 2014 STIKEMAN ELLIOTT LLP Barristers & Solicitors 5300 - 199 Bay Street Toronto, Canada M5L 1B9 David R. Byers LSUC#: 22992W Tel: (416) 869-5662 Alexander D. Rose LSUC#: 49415P Tel: (416) 869-5261 Fax: (416) 947-0866 Lawyers for Air Canada 6268291 vl INDEX Court File No, 09-CL-8456-00CL ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST) BETWEEN: IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED AND IN THE MATTER OF JAMES ROBERT TUCKER, RICHARD HEIS AND ALLAN WATSON GRAHAM OF KPMG LLP, AS JOINT ADMINISTRATORS Applicants AND IN THE MATTER OF AERO INVENTORY(UK) LIMITED and AERO INVENTORY PLC Respondents APPLICATION UNDER SECTION 46 AND FOLLOWING OF THE COMPANIES' CREDITORS ARRANGEMENT ACT, R,S,C, 1985, c. C- 36, AS AMENDED INDEX TAB DOCUMENT 1. Kelly R, Palmer, The Law of Set-Off in Canada, (Toronto: Canada Law Book, 1993) 2. L.W. Houlden and Geoffrey B. Morawetz, Houlden and Morawetz Bankruptcy and Insolvency Analysis, Thomson Reuters Canada Limited, electronic version, F§237 3, Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 SCR 453 4, Citibank Canada v. Confederation Life Insurance Co, (Liquidator of), [1996] OJ No. 3409 (S.C.J.) 6268291 vl - 3 - TAB DOCUMENT 5. National Foundation for Hepatitis C (Trustee of) v. GWE Group Inc, (1999), 8 C.B,R. (4th) 281 (A.B.Q.B.) 6. Quintette Coal v. Nippon Steel Carp, (1990), 2 CBR (3d) 303 (B.C.C.A.) 7. Re Blue Range Resource Corp., 2000 ABCA 200 8. Re Blue Range Resource Corp., 1999 ABQB 1038 9. Re Canadian Airlines Corp., 2001 ABQB 146 10. NEST Energy Marketing Canada Ltd. (Trustee of) v. NGL Supply (Gas) Co., 2001 ABCA 168 11. Coopers & Lybrand Ltd, v, Lumberland Building Materials Ltd., (1983), 50 CBR (NS) 150 (B,C.S.C.) 12. Re Brunswick Chrysler Plymouth Ltd. (2004) 11 CBR (5th) 10 (N.B. Q.B.) 13. Re Hartford Computer Hardware, Inc., [2012] OJ No. 715 (S.C.J. [Comm. List]) 14. Re Air Canada, [2003] OJ No. 6058 (S.C.J. [Comm. List]) 15. Bruce MacDougall, Estoppel (Markham: Lexis Nexis, 2012) 67682.9a of TAB 1 The 1.1fl, Ca 17 D. a di VI Kelly R. Palmer, B.A. (Dist), M.B.A., LL.B. (Dist) Barrister and Solicitor, Law Society of Alberta Solicitor of The Supreme Court of England and Wales CANADA LAW BOOK INC. 240 Edward St., Aurora, Ontario @ CANADA LAW BOOK INC., 1993 Printed in Canada All rights reserved. No part of this book may be reproduced in any form by any photographic, electronic, mechanical or other means, or used in any information storage and retrieval system, without the written per- mission of the publisher. The paper used in this publication meets the minimum requirements of American National Standards for Information Sciences — Permanence of Paper for Printed Library Materials, ANSI Z39.48-1984. Canadian Cataloguing in Publication Data Palmer, Kelly R. (Kelly Ross), 1959- The law of set-off in Canada Includes index. ISBN D-88804-346-2 I. Set-off and counterclaim — Canada, I. Tile. KE1485 P3 1993 346.71'077 C93-093948-4 KFI501.P3 1993 Chapter 4 Set-off in Insolvency A. Introduction A major application of the rights of set-off arises in cases of insol- vency. The assets of an insolvent individual or firm will often include claims (such as accounts receivable) which pass to a receiver, trustee in bankruptcy or liquidator (referred to in this introduction as a "trustee"), It is then the role of the trustee to profitably realize on these assets for the benefit of creditors of the insolvent. In the course of this realization, the trustee may either commence an action against a third party debtor for an outstanding debt owed to the insolvent, only to be met with a claim for set-off of a debt owed to the debtor by the insolvent; or be faced with claims made by creditors of the insolvent, against which the trustee may wish to raise a set-off of debts owed to the insolvent by the same creditors. In the first case, the debtor may wish to rely on the principles of sot-off in order to avoid paying further funds to the insolvent estate with little likelihood of getting a full return. In the second case, the trustee may attempt to maintain the value of the estate by reducing amounts paid out to specific creditors. In either case, the principles of legal or equitable set-off will be applicable. While numerous provincial statutes have an impact upon insolvency, the discussion in this chapter will be limited to the effects of set-off in four areas: receivership, the Bankruptcy and Insolvency Act, 1 the Wind- ing-up Act, 2 and the Companies' Creditors Arrangement Act. 3 While the discussion will touch upon the operation of each area, a detailed analysis and description of general principles and practices is well beyond the scope of this book, Excellent works which offer guidance in the specifics of each area of insolvency are available and will be referred to below. 1 R.S.C. 1985, c. B-3 (am. S.C. 1992, c. 27). 2. R.S.C. 1985, c. W-11. 3, R.S.C. 1985, c. C-36. 157 The Law of Set-Off in Canada One overall point is worthy of note, The application of the principles of set-off in Canada do not differ in any meaningful way between solvent and insolvent situations. Certain issues, such as mutuality, do take on a greater importance due to the transfer of the insolvent's estate to the trustee. Few Canadian cases, however, treat the principles of set-off any differently in an insolvency than in a case where both debtor and creditor are solvent. 4 This differs from the approach taken in other jurisdictions where the application of set-off in bankruptcy can be quite different than in solvent situations. 5 Accordingly, readers seeking guidance for an in- solvent set-off are referred as well to the chapters regarding legal and equitable set-off which describe the basic principles which a court will apply. B. Set-off and Receivership (1) Generally , A receiver will be appointed to act for a creditor pursuant to private financial arrangements between the debtor and the creditor, usually de- scribed in security documentation between the parties (such as a deben- ture). Once appointed, the receiver will either attempt to liquidate the assets of the debtor or to continue to operate the business of the debtor as a going concern. In either case, the receiver will either attempt to collect on debts owed to the debtor or will be faced with claims made by other creditors for outstanding debts owed by the debtor to them, The essential aspect of receivership for set-off is that the appointment of the receiver will entail an equitable assignment of the debtor's property to the receiver. 6 Kerr7 notes that: ... the principles applicable are those relating to the right of set-off as against an equitable assignee. For either the debenture contains a fixed charge upon all the future property of the company, thus assigning in equity the benefit of any contractual debt due to the company to the debenture holders immediately upon its coming into existence, or else the debenture contains a floating charge upon all the future property of the company, in which case the crystallization of the floating charge produces the same equitable assignment by way of charge against the debenture holders. Accordingly, the appointment of a receiver will result in an assign- ment of the debtor's assets to the receiver with the result that the issues 4. These tend to be in very limited areas. For example, the ability to purchase claims prior to a bankruptcy in order to set them of against claims owed to the insolvent estate may be different than in a solvent situation, See "Buying Up Debts" under heading, "Fraudulent preferences in non-banking cases", 5, The application of set-off in England is different in the two situations, See "Generally" under heading, "Set-Off and Bankruptcy", 'infra. 6, Re Associated Investors of Canada Ltd. (1989), 62 D.L.R. (4th) 269 at pp. 271-2, [19901 1 W.W.R. 447 (Alta. Q.B.). 7. Walton, Raymond, Hunter and Muir, eds,, Kerr on the Law and Practice as to Receivers and Administration, 17th ed, (London, Sweet & Maxwell, 1989), pp. 380-81. 158 TAB 2 HMANALY F§237 Page 1 Houlden & Morawetz Analysis F§237 F1MANALY F§237 Houlden and Morawetz Bankruptcy and Insolvency Analysis L,W. Houlden and Geoffrey B. Morawetz Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved. Bankruptcy and Insolvency Act Part IV (ss, 67-101.2) F§237 Set-Off F'§237 Set-Off See s. 97 (1) Generally The right of set-off in bankruptcy takes its origin from the fact that jurisdiction in bankruptcy was closely connected with equity, the appoint merit of bankruptcy commissioners being made by the Lord Chancellor: see 13 Eliz, I, c.
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