Court File No.: CV-16-11424-00CL ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: EMMANUEL VILLAGE RESIDENCE INC. Applicant - and - ATTORNEY GENERAL OF ONTARIO Applicant - and - 1250 WEBER STREET EAST, KITCHENER, ONTARIO OR THE PROCEEDS OF THE SALE THEREOF (IN REM) Respondent MOTION RECORD OF EMMANUEL VILLAGE RESIDENCE INC. August 17, 2016 DLA PIPER (CANADA) LLP Barristers & Solicitors 1 First Canadian Place 100 King Street West, Suite 6000 P.O. Box 367 Toronto ON M5X 1E2 Bruce Darlington (LSUC# 25310K) [email protected] Tel: 416-365-3529 Fax: 416-369-5210 Jennifer A. Whincup (LSUC# 60326W) [email protected] Tel: 416-365-3425 Fax: 416-369-5240 Lawyers for Emmanuel Village Residence Inc. CAN: 22443870.1 - 2 - TO: THORNTON GROUT FINNIGAN LLP Suite 3200, 100 Wellington Street West P.O. Box 329, Toronto-Dominion Centre Toronto, ON M5K 1K7 Leanne M. Williams [email protected] Tel: 416-304-0060 Fax: 416-304-1313 Asim Iqbal [email protected] Tel: 416-304-0595 Fax: 416-304-1313 Lawyers for BDO Canada Limited AND TO: TORKIN MANES Barristers and Solicitors 151 Yonge Street, Suite 1500 Toronto ON M5C 2W7 Jeff Simpson [email protected] Tel: 416-777-5413 Fax: 1-888-587-9143 Lawyers for HMT Holdings Inc. AND TO: GOLDMAN SLOAN NASH & HABER LLP Barristers and Solicitors 480 University Avenue, Suite 1600 Toronto ON M5G 1V2 Brendan Bissell [email protected] Tel: 416-597-6489 Fax: 416-597-9922 Lawyers For Sure Mortgage Capital Inc. CAN: 22443870.1 - 3 - AND TO: BENNETT JONES LLP 3400 One First Canadian Place P.O. Box 130 Toronto, Ontario M5X 1A4 Canada Jonathan Bell [email protected] Tel: 416-777-6511 Fax: 416-863-1716 Joseph Blinick [email protected] Tel: 416-777-4828 Fax: 416-863-1716 Plaintiffs in Court File No. CV-10-8597-00CL AND TO: MINISTRY OF NATIONAL REVENUE c/o Department of Justice Canada Ontario Regional Office The Exchange Tower 130 King Street West Suite 3400, Box 36 Toronto, ON M5X 1K6 Diane Winters / Peter Zevenhuizen [email protected] [email protected] Tel: 416-973-3172 Fax: 416-973-0810 Lawyers for Canada Revenue Agency CAN: 22443870.1 - 4 - AND TO: MINISTRY OF THE ATTORNEY GENERAL Civil Law Division Civil Remedies for Illicit Activities Office (CRIA) 720 Bay Street 8th Floor Toronto, ON M7A 2S9 Gary Valiquette (LSUC#34925M) [email protected] Tel: 416-214-5881 Fax: 416-314-3714 Jennifer Malabar (LSUC#49358M) [email protected] Tel: 416-327-2932 Fax: 416-314-3714 Ronald Carr (LSUC#13341F) [email protected] Tel: 416-326-2704 Fax: 416-326-4181 Counsel for the Attorney General of Ontario AND TO: MINISTRY OF FINANCE Legal Services Branch 6th Floor, 33 King Street West Oshawa ON L1H 8H5 KEVIN O'HARA [email protected] Tel: 905-433-6934 Fax: 905-436-4510 AND TO: RETIREMENT HOMES REGULATORY AUTHORITY Office of the Registrar 160 Eglinton Avenue East, Fifth Floor Toronto, ON M4P 3B5 Heather Hogan [email protected] Tel: 416-487-1223 Fax: 416-440-3570 CAN: 22443870.1 - 5 - AND TO: KRONIS, ROTSZTAIN, MARGLES, CAPPEL LLP Barristers and Solicitors 25 Sheppard Avenue West, Suite 1100 Toronto ON M2N 6S6 Onofrio Ferlisi [email protected] Tel: 416-225-8750x262 Fax: 416-225-7214 Lawyers For Bank Of Nova Scotia Secured Party AND TO: RCAP LEASING INC. 5575 North Service Road, Suite 300 Burlington, ON L7L 6M1 Secured Party CAN: 22443870.1 Court File No.: CV-16-11424-00CL ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: EMMANUEL VILLAGE RESIDENCE INC. Applicant - and - ATTORNEY GENERAL OF ONTARIO Applicant - and - 1250 WEBER STREET EAST, KITCHENER, ONTARIO OR THE PROCEEDS OF THE SALE THEREOF (IN REM) Respondent INDEX 1. Notice of Motion returnable August 19, 2016 2. Affidavit of Judith Ann Hunking, sworn August 17, 2016 A Order of Justice Penny, dated June 24, 2016 B Template Right to Occupy Agreement 3. Affidavit of Alexis Natasha Laura Radojcic, sworn August 17, 2016 A Property Register Search of EVR Property B Property Register Search of EVH Property C Order of Justice Penny, dated June 24, 2016 D Order of Justice Sloan, dated June 16, 2016 E Order of Justice Broad, dated June 23, 2016 F Order of Justice Hainey dated July 15, 2016 CAN: 22443870.1 - 2 - G Order of Justice Newbould dated July 22, 2016 H Order of Justice Conway dated July 22, 2016 in the Kitchener Application I Order of Justice Conway dated July 22, 2016 in the Toronto Application J Order of Justice Pattillo, dated July 27, 2016 K Parcel Instrument Number WR53031 L Parcel Instrument Number WR608571 M Parcel Instrument Number WR608873 N Order of Master T.R. Hawkins dated May 8, 2012 4. Affidavit of Tim McGowan, sworn August 17, 2016 5. Draft Order CAN: 22443870.1 TAB 1 Court File No.: CV-16-11424-00CL ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: EMMANUEL VILLAGE RESIDENCE INC. Applicant - and - ATTORNEY GENERAL OF ONTARIO Applicant - and - 1250 WEBER STREET EAST, KITCHENER, ONTARIO OR THE PROCEEDS OF THE SALE THEREOF (IN REM) Respondent NOTICE OF MOTION OF EMMANUEL VILLAGE RESIDENCE INC. Emmanuel Village Residence Inc. (“EVR”) will make a Motion to the court on August 19, 2016 at 9:30 a.m. or as soon after that time as the Motion can be heard at the court house, 330 University Avenue, 8th Floor, Toronto, Ontario, M5G 1R7. PROPOSED METHOD OF HEARING: The Motion is to be heard orally. THE MOTION IS FOR: 1. An order: -2- (a) if necessary, abridging the time for service and filing of this notice of motion and the motion record and dispensing with further service thereof; (b) appointing a representative of the EVH Residents (as defined below) for the limited scope and purpose of representing the interests of the EVH Residents in the sale of EVR, which is the subject of an approval and vesting motion scheduled for August 31, 2016; (c) appointing Oldfield, Greaves, D’Agostino as representative counsel to the EVH Residents in these proceedings; and (d) varying the Order of Justice Pattillo, dated July 27, 2016 (the “Preservation Order”), to permit the Order of Master T. R. Hawkins, dated May 18, 2012 in Court File No. 04-CV-271509 CM3 (the “CPL Discharge Order”), to be registered on title to the property described in Schedule “A” (the “Property”) and deleting instruments WR608571 and WR608873 from title to the Property in accordance with the CPL Discharge Order; and 2. Such further and other relief as to this Honourable Court may seem just. THE GROUNDS FOR THE MOTION ARE: Procedural Background (a) EVR is the owner and operator of Emmanuel Village in Kitchener, Ontario. Emmanuel Village is a retirement community that houses between 110 and 130 residents and employs approximately 50 individuals. -3- (b) EVR operates on the Property, which is municipally known as 1250 Weber Street East, in Kitchener, Ontario. There are two additional parcels that share the same municipal address (the “EVH Property”) but are owned by a separate legal entity, Emmanuel Village Homes (Kitchener) Inc. (“EVH”). (c) On or about June 10, 2016, EVR commenced an application to appoint a receiver for the limited purpose of completing a going concern sale of EVR’s business and the assets, undertaking and property used in relation to the Business, including all proceeds thereof (collectively, the “Business”) to a purchaser who is licensed to carry on the Business as a retirement home at the Commercial List in Toronto under Court File No.: CV-16-11424-00CL (the “Toronto Application”). (d) On or about the same date, the AGO commenced an application in Kitchener, Ontario under Court File No.: C-636-16 (the “Kitchener Application”) for the civil forfeiture of the Property. (e) The Kitchener Application and Toronto Application were consolidated by the orders of Justice Conway dated July 22, 2016, in each of the Kitchener Application and the Toronto Application, to proceed as a single application on the Commercial List (the “Consolidated Application”). The Receivership (f) On or about June 24, 2016, EVR obtained an order appointing BDO Canada Limited (“BDO”) as Receiver for the limited purpose of, among other things, completing a going concern sale of EVR’s Business to a -4- purchaser (the “Purchaser”) who is licensed to carry on the Business as a retirement home (the “Appointment Order”). (g) The Appointment Order empowers the Receiver to, among other things: (i) to sell, convey, transfer, lease or assign the Property or any part or parts thereof whether within or out of the ordinary course of business, and in such case notice under subsection 63(4) of the Ontario Personal Property Security Act, or section 31 of the Ontario Mortgages Act, as the case may be, shall not be required, and in each case the Ontario Bulk Sales Act shall not apply; (ii) to apply for an order of this Court approving the sale of the Property or any part thereof (the "Sale Approval Motion") which motion shall include, among other things, the approval of the Court to complete the sale; and (iii) to apply for any vesting order or other orders necessary to convey the Property or any part or parts thereof to a purchaser or purchasers thereof, free and clear of any liens or encumbrances affecting such Property; (h) On or about Friday, August 12, 2016, EVR entered into an agreement of purchase and sale to sell substantially all of its assets to the Purchaser (the “Sale”), subject to Court approval, which is currently scheduled to be heard on August 31, 2016.