Cliffs Over Maple Bay Investments Ltd., Re, (2011) 304 B.C.A.C. 116 (CA)

• Judge: Prowse, Newbury and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: Friday January 14, 2011
• Jurisdiction: British Columbia
• Citations: (2011), 304 B.C.A.C. 116 (CA);2011 BCCA 180

Cliffs Over Maple Bay, Re (2011), 304 B.C.A.C. 116 (CA);

    513 W.A.C. 116

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. AP.048

In The Matter Of the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36

In The Matter Of the Business Corporations Act, R.S.B.C. 2002, c. 57

In The Matter Of The Cliffs Over Maple Bay Investments Ltd.

Fisgard Capital Corporation and Liberty Holdings Excell Corp. (appellants/respondents on cross-appeal) v. Century Services Inc., Lawson Lundell LLP (respondents/appellants on cross-appeal)

(CA038042; 2011 BCCA 180)

Indexed As: Cliffs Over Maple Bay Investments Ltd., Re

British Columbia Court of Appeal

Prowse, Newbury and Chiasson, JJ.A.

April 14, 2011.

Summary:

The Cliffs Over Maple Bay Investments Ltd. defaulted on its loan obligations. Various competing creditors disputed portions of a $500,000 loan made by Century Services Inc. The loan related to a debtor-in-possession (DIP) financing order that was ultimately set aside. A dispute arose between Century and the first-ranking creditor ("Fisgard Liberty") in relation to the first tranche of the DIP funds.

The British Columbia Supreme Court, in a decision reported at [2010] B.C.T.C. Uned. 389, held that Fisgard Liberty was "entitled to priority" in respect of the funds, subject to the claim of a third creditor ("Lawson") to a solicitor's lien. No appeal was taken. Century brought another motion, questioning whether the funds had in law and in fact been advanced. The chambers judge declined to apply res judicata. He found that the advance had never taken place, that the funds remaining in Lawson's trust account had been subject to a Quistclose trust in Century's favour, and that Cliffs had never obtained an interest in the funds to which Fisgard Liberty's security interest could attach. Fisgard Liberty appealed.

The British Columbia Court of Appeal allowed the appeal. The court declared that as between Fisgard Liberty and Century, its interest in the funds ranked in priority to any interest of Century. Pending the court's determination of Lawson's claim to the funds (or settlement of that issue), the funds were to continue to be held by Lawson in trust.

Creditors and Debtors - Topic 8581.1

Debtors' relief legislation - Companies' creditors arrangement legislation - Priorities - A real estate developer defaulted on its loan obligations - Various competing creditors disputed portions of a loan made by Century Services Inc. to the developer - The loan related to a debtor-in-possession (DIP) financing order that was ultimately set aside - A dispute arose between Century and the first-ranking creditor ("Fisgard Liberty") in relation to the first tranche of the DIP funds - The chambers judge held that Fisgard Liberty was "entitled to priority" - Century brought another motion, questioning whether the funds had in law and in fact been advanced - The chambers judge declined to apply res judicata - The British Columbia Court of Appeal concluded that the chambers judge erred in finding that the criteria for issue estoppel were not met - The issue of priority as between Century and Fisgard Liberty was finally determined and the court below did not have jurisdiction to rehear it or to vary or rescind its order - The court disagreed with the suggestion that having made a final order, a court might subsequently adopt a "more informed opinion" of the matter and proceed to contradict its earlier order - The issues of advance, attachment and trust were "necessarily bound up" with or "fundamental to" the determination of priority - Priority was not a "threshold issue"; it was the ultimate issue - "If nothing else, this case is a cautionary tale for practitioners in the insolvency area about the importance of clearly informing the Court as to the issues being raised, and properly stating in the Court's order exactly what was determined and what was not" - See paragraphs 34 to 41, 71.

Creditors and Debtors - Topic 8587.6

Debtors' relief legislation - Companies' creditors arrangement legislation - Advancement of money or credit - What constitutes - A real estate developer defaulted on its loan obligations, which resulted in proceedings under the Companies' Creditors Arrangement Act - Various competing creditors disputed portions of a loan made by Century Services Inc. to the developer - The loan related to a debtor-in-possession (DIP) financing order that was ultimately set aside - A dispute arose between Century and the existing first-ranking creditor ("Fisgard Liberty") in relation to the first tranche of the DIP funds - The chambers judge held that Fisgard Liberty was "entitled to priority", subject to the claim of a third creditor ("Lawson"), to a solicitor's lien - Century brought another motion, questioning whether the funds had been "advanced" to Cliffs - The British Columbia Court of Appeal concluded that, contrary to the finding below, the tranche which Century purported to advance was advanced in fact and in law - Fisgard Liberty's interest thereupon attached to the funds and remained attached to the residue still held by Lawson - The chambers judge fell into clear error in finding that the funds remained held by Lawson on a trust condition "that has not and now never will be satisfied" and that therefore Century was entitled to their return - See paragraphs 49 to 55, 71.

Creditors and Debtors - Topic 8587.6

Debtors' relief legislation - Companies' creditors arrangement legislation - Advancement of money or credit - What constitutes - A real estate developer defaulted on its loan obligations, which resulted in proceedings under the Companies' Creditors Arrangement Act - Various competing creditors disputed portions of a loan made by Century Services Inc. to the developer - The loan related to a debtor-in-possession (DIP) financing order that was ultimately set aside - A dispute arose between Century and the existing first-ranking creditor ("Fisgard Liberty") in relation to the first tranche of the DIP funds - The chambers judge held that Fisgard Liberty was "entitled to priority", subject to the claim of a third creditor ("Lawson"), to a solicitor's lien - Century brought another motion, questioning whether the funds had been "advanced" to Cliffs, though its agent Lawson - The chambers judge found that the funds remaining in Lawson's trust account had been subject to a Quistclose trust in Century's favour, and that Cliffs had never obtained an interest in the funds to which Fisgard Liberty's security interest could attach - The British Columbia Court of Appeal held that the chambers judge erred in finding that a Quistclose trust was intended or created - Although Cliffs agreed as a matter of contract that the funds would be used for the general purpose stated, that restriction did not give rise to any inference of an intention on the part of Century and Cliffs to create the "specialized vehicle" that was a Quistclose trust - The only trust in existence was the usual type created by the undertaking given to the lender by Lawson as Cliffs' solicitors - The terms of that trust were met, as were the terms of the DIP order - See paragraphs 56 to 71.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Creditors and Debtors - Topic 8581.1].

Estoppel - Topic 398

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Exceptions - Special circumstances - In a three-way dispute among "sophisticated lenders", the court below had to determine the parties' respective entitlements to what remained of one tranche of debtor-in-possession financing what the DIP lender ("Century") purported to advance in violation of a term in its letter of commitment - A dispute arose between Century and the existing first-ranking creditor ("Fisgard Liberty") - The chambers judge held that Fisgard Liberty was "entitled to priority" - Century brought another motion, questioning whether the funds had been advanced - The chambers judge found that it would be contrary to justice to apply issue estoppel - The British Columbia Court of Appeal concluded that the chambers judge erred in failing to recognize the finality of his earlier order and in failing to give consideration to the narrowness of the circumstances in which his discretion could properly be exercised - No "special circumstances" existed here - No overriding question of fairness was engaged - See paragraphs 42 to 48, 71.

Trusts - Topic 375

Creation of trust - Purpose or object - "Quistclose" trust - [See second Creditors and Debtors - Topic 8587.6].

Trusts - Topic 628

Creation of trust - Transactions creating trusts - Money advanced for loan purposes - [See both Creditors and Debtors - Topic 8587.6].

Cases Noticed:

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [paras. 10, 25].

R. v. Van Rassel, [1990] 1 S.C.R. 225; 105 N.R. 103; 27 Q.A.C. 285; 53 C.C.C.(3d) 353, refd to. [para. 10].

Henderson v. Henderson, [1843-60] All E.R. Rep. 378; 67 E.R. 313; 3 Hare 100 (Ch.), refd to. [para. 13].

Hoque v. Montreal Trust Co. of Canada et al. (1997), 162 N.S.R.(2d) 321; 485 A.P.R. 321 (C.A.), refd to. [para. 14].

Buschau et al. v. Rogers Communications Inc. et al., [2003] B.C.T.C. 1718; 2003 BCSC 1718, revd. (2004), 200 B.C.A.C. 9; 327 W.A.C. 9; 2004 BCCA 142; 2004 BCCA 143, refd to. [para. 14].

Quistclose Investments Ltd. v. Rolls Razor Ltd. (In Liquidation), [1970] A.C. 567 (H.L.), refd to. [para. 18].

Barclay's Bank Ltd. v. Quistclose Investments Ltd. - see Quistclose Investments Ltd. v. Rolls Razor Ltd. (In Liquidation).

Twinsectra Ltd. v. Yardley, [2002] 2 A.C. 164; [2002] 2 All E.R. 377 (H.L.), refd to. [para. 18].

Westar Mines Ltd. (Bankrupt), Re (2003), 182 B.C.A.C. 161; 300 W.A.C. 161; 2003 BCCA 11, refd to. [para. 18].

Giles et al. v. Westminster Savings Credit Union et al. (2007), 245 B.C.A.C. 213; 405 W.A.C. 213; 2007 BCCA 411, refd to. [para. 18].

Ellingsen (Bankrupt), Re (2000), 142 B.C.A.C. 26; 233 W.A.C. 26; 2000 BCCA 458, refd to. [para. 20].

Ellingsen (Trustee of) v. Hallmark Ford Sales Ltd. - see Ellingsen (Bankrupt), Re.

Kimwood Enterprises Ltd. v. Roynat Inc. and Canadian Imperial Bank of Commerce, [1985] 3 W.W.R. 67; 31 Man.R.(2d) 105; 15 D.L.R.(4th) 751 (C.A.), refd to. [para. 20].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 24].

Stone v. Ellerman et al. (2009), 273 B.C.A.C. 126; 461 W.A.C. 126; 92 B.C.L.R.(4th) 203; 2009 BCCA 294, refd to. [para. 24].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 24].

Hoystead v. Commissioner of Taxation, [1926] A.C. 155 (P.C.), refd to. [para. 25].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 25].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 26].

Revane v. Homersham (2006), 220 B.C.A.C. 292; 362 W.A.C. 292; 53 B.C.L.R.(4th) 76; 2006 BCCA 8, refd to. [para. 26].

Fidelitas Shipping Co. v. V/O Exportchleb, [1965] 2 All E.R. 4 (C.A.), refd to. [para. 27].

Bjarnarson (H.R.) v. Manitoba (1987), 48 Man.R.(2d) 49; 38 D.L.R.(4th) 32 (Q.B.), affd. (1987), 50 Man.R.(2d) 178; 45 D.L.R.(4th) 766 (C.A.), refd to. [para. 28].

Doering v. Grandview (Town), [1976] 2 S.C.R. 621; 7 N.R. 299, refd to. [para. 28].

Mohl v. University of British Columbia (2006), 222 B.C.A.C. 258; 368 W.A.C. 258; 265 D.L.R.(4th) 109; 2006 BCCA 70, refd to. [para. 28].

Comeau et al. v. Breau et al. (1994), 145 N.B.R.(2d) 329; 372 A.P.R. 329 (C.A.), refd to. [para. 28].

Letang v. Cooper, [1965] 1 Q.B. 222 (C.A.), refd to. [para. 28].

Canadian Pacific Airlines Ltd. and Pacific Western Airlines Ltd. v. British Columbia (1985), 21 D.L.R.(4th) 686 (B.C.C.A.), consd. [para. 29].

Heather's House of Fashion Inc. (No. 2), Re (1977), 24 C.P.R.(N.S.) 193 (Ont. Sup. Ct.), consd. [para. 29].

Las Vegas Strip Ltd. et al. v. Toronto (City) and Zanzibar Tavern Inc. (1996), 13 O.T.C. 308; 30 O.R.(3d) 286 (Gen. Div.), consd. [para. 29].

Agil Holdings Ltd., Re (1985), 32 A.C.W.S.(2d) 259 (Ont. H.C.), refd to. [para. 29].

Scherer v. Price Waterhouse - see Agil Holdings Ltd., Re.

McIntosh v. Parent, [1924] 4 D.L.R. 420 (Ont. C.A.), refd to. [para. 31].

Morgan Power Apparatus Ltd. v. Flanders Installations Ltd. (1972), 27 D.L.R.(3d) 249 (B.C.C.A.), refd to. [para. 32].

Hill v. Hill (1966), 57 D.L.R.(2d) 760 (B.C.C.A.), refd to. [para. 32].

Global Aerospace Inc. v. Insurance Co. of the State of Pennsylvania et al. (2010), 359 Sask.R. 209; 494 W.A.C. 209; 2010 SKCA 96, refd to. [para. 32].

Foster v. Reaume, [1927] 1 D.L.R. 1024 (Ont. C.A.), refd to. [para. 32].

Prince et al. v. Eaton (T.) Co. (1992), 14 B.C.A.C. 112; 26 W.A.C. 112; 91 D.L.R.(4th) 509 (C.A.), refd to. [para. 32].

Zimbel Estate, Re (1992), 80 Man.R.(2d) 142 (Q.B.), consd. [para. 37].

Zimbel Estate v. Pascoe - see Zimbel Estate, Re.

Ernst & Young Inc. v. Central Guaranty Trust Co. (2006), 397 A.R. 225; 384 W.A.C. 225; 2006 ABCA 337, consd. [para. 38].

R. v. Duhamel (1981), 33 A.R. 271; 131 D.L.R.(3d) 352 (C.A.), affd. [1984] 2 S.C.R. 555; 57 N.R. 162; 57 A.R. 204, refd to. [para. 38].

Iron et al. v. Saskatchewan (Minister of the Environment and Public Safety) et al., [1993] 6 W.W.R. 1; 109 Sask.R. 49; 42 W.A.C. 49 (C.A.), refd to. [para. 42].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 43].

Furlong v. Avalon Bookkeeping Services Ltd. et al. (2004), 239 Nfld. & P.E.I.R. 197; 709 A.P.R. 197; 2004 NLCA 46, refd to. [para. 43].

Procter & Gamble Pharmaceuticals Canada Inc. et al. v. Canada (Minister of Health) et al., [2004] 2 F.C.R. 85; 313 N.R. 380; 2003 FCA 467, refd to. [para. 44].

Saskatoon Credit Union Ltd. v. Central Park Enterprises Ltd. (1988), 22 B.C.L.R.(2d) 89; 47 D.L.R.(4th) 431 (S.C.), refd to. [para. 44].

Talbot v. Ocean Oil Corp. and Pan Ocean Oil Ltd. (1977), 5 A.R. 361; 3 Alta. L.R.(2d) 354 (C.A.), refd to. [para. 46].

Niedner Ltd. v. Lloyds Bank of Canada (1990), 72 D.L.R.(4th) 147 (Ont. H.C.), refd to. [para. 58].

Authors and Works Noticed:

Bridge, Michael, The Quistclose Trust in a World of Secured Transactions (1992), 12 Oxford J. Leg. Studies 333, pp. 345 [para. 60]; 347, 348 [para. 59].

Klinck, Dennis R., Re-Characterizing the Quistclose Trust: Lord Millett's Obiter Dicta in Twinsectra (2005), 42 Can. Bus. L.J. 427, pp. 428 to 431 [para. 60].

Lange, Donald J., Res Judicata in Canada (3rd Ed. 2010), c. 1 [para. 25]; p. 147 [para. 28].

Millett, P.J., The Quistclose Trust - A Reply (2011), 17:1 Trusts & Trustees 7, generally [para. 60].

Millett, P.J., The Quistclose Trust: Who Can Enforce it (1985), 101 L.Q.R. 269, generally [para. 60].

Smolyansky, Michael, Reining in the Quistclose Trust: A Response to Twinsectra v. Yardley (2010), 16 Trusts & Trustees 558, generally [para. 60].

Spencer-Bower, George S., and Turner, Alexander Kingcome, The Doctrine of Res Judicata (2nd Ed. 1969), p. 160 [para. 37].

Spencer-Bower, George S., Turner, Alexander Kingcome, and Handley, K.R., The Doctrine of Res Judicata (4th Ed. 2009), generally [para. 25]; §§ 8.09, 8.10, 8.12 [para. 38].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), p. 565 [para. 57].

Counsel:

G.J. Tucker and Z.J. Ansley, for the appellant;

M.I.A. Buttery and L. Williams, for the respondent Century Services Inc.;

P. Roberts, for the respondent Lawson Lundell LLP.

This appeal was heard at Vancouver, British Columbia, on January 14, 2011, before Prowse, Newbury and Chiasson, JJ.A., of the British Columbia Court of Appeal. In reasons written by Newbury, J.A., the Court of Appeal delivered the following judgment, dated April 14, 2011.