Court File No. CV-16-11257-00CL ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST) IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, C. C-36, AS AMENDED AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGMENT OF PRIMUS TELECOMMUNICATIONS CANADA INC., PRIMUS TELECOMMUNICATIONS, INC. AND LINGO, INC. BOOK OF AUTHORITIES OF THE PURCHASER (BIRCH COMMUNICATIONS INC.) GOODMANS LLP Barristers & Solicitors Bay Adelaide Centre 333 Bay Street, Suite 3400 Toronto, Ontario M5H 2S7 Jason Wadden LSUC#: 46757M Tel: 416.979.2211 Fax: 416.979.1234 Lawyers for the Purchaser, Birch Communications Inc. I N D E X INDEX TAB CASE 1. Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act, Report of the Standing Senate Committee on Banking, Trade and Commerce, November 2003, at pp. 138-139. 2. Extreme Retail (Canada) Inc. v. Bank of Montreal, [2007] O.J. No. 3304 (S.C.J. [Comm. List]) at paras 20-21. 3. Re Allen-Vanguard Corp., 2011 ONSC 5017 at paras 108-111. 4. Royal Bank v. Body Blue Inc., [2008] O.J. No. 1628 (S.C.J.) at paras 18-19. 5. Canadian Red Cross Society, Re, [1998] O.J. No. 3306 (Gen. Div. [Comm. List]) at para 42. 6. L&L Tool Inc. v. General Motors Corp., [2004] O.J. No. 2785 (S.C.J.) at paras 3, 51- 55. 7. Air Canada Pilots Assn. v. Air Canada Ace Aviation Holdings Inc., [2007] O.J. No. 89 (S.C.J.) at paras 44-45, aff’d 2008 ONCA 531. 8. Re Target Canada Co., 2016 ONSC 316 at paras 19, 74, 77, 80, 81, and 85. 9. Romspen Investment Corp. v. Edgeworth Properties, 2014 ONSC 4340 at para 39. 10. Ashley v. Marlow Group Private Portfolio Management Inc., [2006] O.J. No. 1195 (S.C.J. [Comm List]) at para 78. 1 DEBTORS C DITORS sNG T E EN. A Review of the Bankruptcy /InsolvencyAct and the Comperes'Crechiars Air ementAct Report of the Standing Senate Committee on Banking'Dade and Commerce Chair The Honourable Richard H.Kroft Deputy. Chair The Honourable David T.kachuir November 2003 j, Executoty Contracts Executory contracts are contracts under which something remains to be done by one or mote of the parties to the Contract. In essence, it is a contract where there are obligations yet to be completed. Examples include leases, intellectual property tights and employment contracts, among ... the existence of Neitl, et the TATA_ n the cr,A A uses the expression [execateny these "executory contract." contracts in a ulna/ion ofinsolvency raises the gnestion ofthe extent to Nevertheless, the existence of these contracts in a which these private situation ofinsolvency raises the question of the extent to contracts— negotiated in which these private contracts — negotiated in good faith and goodfaith and with dare with due consideration of risk— should be altered or consideration of terminated, under what circumstances and by whom. risk,— shottld be altered Alteration or termination of contractual rights change terminated, under what expectations, reduce predictability in contracting and increase circamstances and by risks, which will have negative implications. As well, both whom. contracting parties may experience harm, since the continuation of a contract may he in the hest interest of both parties. Canadian legislation in this area has existed for some time. The BankVtg Act passed in 1949 contained few restraints on completed contracts; as well, it explicitly recognized the applicability of provincial/territorial law to real estate leases. Various onmibus bills in the 1970s and 1980s, all of which died on the Order Paper, proposed that an insolvent .person who wished to make a proposal could disclaim any executory contract, and the co-contracting party would have the right to file a claim.in the proposal for damages; the insolvent company could continue as a going concern, While the co-contracting party to the disclaimed contract would be no worse off than if a bankruptcy had occurred. Amendments to the WA in 1992 provide that, after a reorganization begins, secured creditors cannot exercise their security; the termination of a lease, licensing agreement or public utility because of default wasalso prevented. Debtors, however, were given the ability to disclaim leases on real property. 132 Witnesses presented the Committee with divergent opinions on whether disclaimer of executory contracts should be allowed, with the Court's permission, by insolvency practitioners or by co-contracting patties. Some witnesses told us that a company involved in a reorganization should be permitted to renounce such contracts, This view was held, for example, by Mr, Mendelsohn, who told the Committee — in reference to the CCAA — that "reorganizing entities [do and should] have the ability to renounce executory contracts, with appropriate judicial supervision." After noting that, under the BIA, only commercial leases of real estate where the reorganizing entity is the lessee can be renounced, he argued that: a coherent system of restructuring must permit the entity to renounce other executory contracts as well informed us that "[i]f executory contracts have to be renounced, they have to be renounced whether ,.., [the] company [is big at small]." Mr. Mendelsohn also shared the view-that a bankruptcy trustee should be able to assign and transfer executory contracts to third parties, including licensing arrangements and leases of premises. He believed that "a trustee in bankruptcy should be given the right to realize, fox the benefit: of creditors, whatever economic value resides in the assets, including executory contract assets." The Joint Task Force on Business Insolvency haw Reform also spoke about the ability to disclaim executory contracts and assignment to third parties, In the Joint Task Force's opinion,"Where should be, a general right to disclaim (reject) executory contracts (including teal property leases) in all bankruptcy and reorganization proceedings," Although it does not: believe that insolvent organizations or the trustee in bankruptcy should require Court approval in order to disclaim these contracts existing at the date of commencement of proceedings, the Joint Task Force argued that "the legislation could impose some pre-conditions to the exercise of the disclaimer power either generally, or with respect to certain types of contracts," Regarding the ability to assign executory contracts, the joint Taslc Force informed the Committee that "ttustees 133 bankruptcy and court-appointed receivers should have the power to assign executory contacts (not including eligible financial contracts) both in connection with going concern transactions and on a liquidation basis," subject to a number of limitations. It went on to note, however, that "Where should be provision for the court to prohibit an assignment if [the non-bankrupt party to the contract] establishes that the proposed assignee does not meet, in a material way, criteria reasonably applied by [it] before entering into similar agreements ,. or the proposed assignee is less creditworthy than [the bankrupt] was when the executory contract was entered into and reasonable assurances of payment have not been provided with respect to any credit required to be extended to the assignee by [the non-bankrupt party] under the executory contract after the assignment." The Canadian Bankers Association, however, told the Committee that "Nnsolvency law constraints on contracts can affect pre-insolvency contracting behaviour and may reduce credit availability. The new economy dictates that companies must be innovative and dynamic. In order to finance such new enterprises, financiers must be able to rely on the negotiated terms of their contracts." A particular executory contract — a collective agreement — was discussed by several witnesses, including representatives of organized labour. In general, their view is that the Court A particular executory should not be able to terminate a collective agreement,in contract— a collective whole or in part. The CAW-Canada told the Committee that agreement— was "the CCAA offers no authority to a Court to abrogate a discussed by several collective agreement. Nor should it do so. Still, some counsel witnesses, including and commentators believe that Superior Courts in Canada representatives of have an 'inherent jurisdiction' to issue an order pursuant to the organized labour, CCAA which suspends or temporarily cancels one or more terms of a collective agreement. We fundamentally disagree." In the union's opinion,"Where can be no dispute that if the preservation of the status quo is a key objective of the CCAA,then the terms and conditions of employment defined in a collective agreement at the time of the issuance of a CCAA order must be maintained subject to the parties' mutual authority to negotiate changes," From this perspective, the 134 CAW-Canada told the Committee that"Nhe CCAA should ... make clear that it is not open to a Court,in exercising its `inherent jurisdiction' to alter, waive, or override the provisions of a collective agreement without the consent of the employer and the relevant trade union." A similar view was presented to the Committee by the United Steelworkers of America, which told us that "the Courts should not be entitled, under the guise of a CCAA proceeding, to interfere with the operation of freely negotiated collective agreements which affect the rights of many workers. ... Pinions have demonstrated, in times of legitimate economic crisis, that they are capable of acting responsibly and in the best interests of their membership to agree to amendments to a collective agreement which may be necessary to enable the employer to survive. This cooperative approach is to be preferred to an approach which would eliminate workers (sic) rights with the stroke of a pen and subvert the primacy of collective bargaining." Moreover, the Canadian Labour Congress differentiated collective agreements from other executory contracts, and indicated to the Committee that "[Bust as employees are not like other creditors, collective agreements are not like other contracts.