ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL … · court file no. cv-13-10201-00cl ontario superior court of justice commercial list b e t w e e n: royal bank of canada applicant

Court File No. CV-13-10201-00CL

ONTARIOSUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

B E T W E E N:

ROYAL BANK OF CANADAApplicant

and

ATLAS BLOCK CO. LIMITED, ATLAS BLOCK (BROCKVILLE) LTD. and 1035163 ONTARIO, O/A ATLAS BLOCK TRUCKING

Respondents

APPLICATION UNDER SUBSECTION 243(1) OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED AND SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, c. C.43, AS AMENDED

MOTION RECORD

November 12, 2015 DLA PIPER (CANADA) LLPBarristers & Solicitors1 First Canadian Place100 King Street West, Suite 6000P.O. Box 367Toronto ON M5X 1E2

Jennifer A. Whincup (LSUC# 60326W)Tel: 416-365-3425Fax: [email protected]

Bruce Darlington (LSUC# 25310K)Tel: 416-365-3529Fax: [email protected]

Lawyers for the Receiver

TO: ATTACHED SERVICE LIST

SERVICE LIST

AIRD & BERLIS LLPBarristers and SolicitorsBrookfield Place181 Bay Street, Suite 1800P.O. Box 754Toronto ON M5J 2T9

Sam Babe (LSUC# 49498B)[email protected]

Tel: 416-865-7718Fax: 416-863-1515

Lawyers for the Applicant

By Email

NORTON ROSE FULBRIGHT CANADA LLPBarristers and SolicitorsSuite 25001 Place Ville MarieMontréal PQ H3B 1R1

Daniel [email protected]

Tel: 514-837-4472Fax: 514-286-5474

Lawyers for G. Tackaberry & Sons

By Email

KPMG LLP, TRUSTEE FOR ATLAS BLOCK CO. LIMITED AND ATLAS BLOCK (BROCKVILLE) LTD.Box 976Suite 510, 21 King St. W.Hamilton ON L8N 3R1

Brad [email protected]

Tel: 905-523-2202Fax: 905-523-2200

Trustee

By Email

SIMPSONWIGLE LAW LLPBarristers and SolicitorsSims Square390 Brant StreetSuite 501Burlington ON L7R 4J4

Rosemary [email protected]

Tel: 905-639-1052 ext. 239Fax: 905-333-3960

Lawyers for Business Development Bank of Canada

By Email

RCAP LEASING INC.300 - 5575 North Service RoadBurlington ON L7L 6M1

RCAP Leasing Inc. - [email protected]

By Email

MCAP LEASING INC. AND MCAP LEASING LIMITED PARTNERSHIP300 - 5575 North Service RoadBurlington ON L7L 6M1

By Email

ATLAS POLAR COMPANY LIMITED60 Northline RoadToronto ON M4B 3E5

[email protected]

By Email

MINISTRY OF ECONOMIC DEVELOPMENT, EMPLOYMENT AND INFRASTRUCTURE

Legal Services Branch56 Wellesley Street West, 5th FloorToronto ON M7A 2E7

James G.L. Stewart, Senior [email protected]

Tel: 416-326-1019Fax: 416-326-1021

Susan Snelgrove, Senior [email protected]

Tel: 416-327-0636Fax: 416-327-0646

By Email

MINISTRY OF FINANCELegal Services Branch6th Floor, 33 King Street WestOshawa ON L1H 8H5

Kevin O'[email protected]

Tel: 905-433-6934Fax: 905-436-4510

By Email

ALLAN BLOCK CORPORATION, AND ALLAN BLOCK CANADA LLC7424 West 78th StreetBloomington MN. 55439

B. [email protected]

By Email

INTERSTAR4255 Portland BoulevardSherbrooke, Quebec J1L 3A5

[email protected]

Tel: 1-800.567.1857Fax: 819.563.1317

By Email

DEPARTMENT OF JUSTICEThe Exchange Tower130 King Street West, Suite 3400Toronto ON M5X 1K6

Diane [email protected]

Peter [email protected]

Tel: 416-952-8563Fax: 416-973-0810

By Email

KEITH KITCHEN FULL SERVICE TIRER.R. #2, 3890 Line 13 NorthColdwater ON L0K 1E0

Keith Kitchen Full Service [email protected]

By Email

B & K MOBILE REPAIRS1440 Division Road WestOrillia ON L3V 6H2

[email protected]

By Email

CIT FINANCIAL LTD.PO Box 4094, Station AToronto ON M5W 3T1

[email protected]

By Email

PORAVER NORTH AMERICA INC.2429 Bowman StreetInnisfil ON L9S 3V6

[email protected]

By Email

BALCAN PLASTICS INC.Suite 211 - 6665 Tomken RoadMississauga ON L5T 2C4

[email protected]

By Email

MORTON METALS351 W SOrillia ON L3V 5H1

[email protected]

By Email

PROST ASSOCIATES323 Midland AvenueMidland, ON L4R 3K5

Martin [email protected]

(705) 526-9328

Lawyers for 881229 Ontario Inc.

MINISTRY OF LABOUR400 University Avenue, 11th FloorToronto ON M7A 1T7

Tel: 416-326-7950Fax: 416-326-7985

By Email

By Fax

RASTIN & ASSOCIATES128 Wellington Street WestSuite 210Barrie, ON L4N 8J6

M. Steven [email protected]

Tel: 705-722-6393Fax: 705-722-9451

Lawyers for Donald Gordon

By Email

BRENT SPAGNOLDirector of PlanningTownship of Springwater2231 Nursery RoadMinesing, ON L0L 1Y2Tel: 705-728-4784 x 2049

[email protected]

By Email



COMMERCIAL LIST

B E T W E E N:


and


Respondents

APPLICATION UNDER SUBSECTION 243(1) OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED AND SECTION 101 OF THE

COURTS OF JUSTICE ACT, R.S.O. 1990, c. C.43, AS AMENDED

INDEX

Tab Page No.

1 Notice of Motion.................................................................................................... 1

Schedule A - Discharge Order............................................................................ 15

2 Eighth (and Final) Report of the Receiver dated November 11, 2015 ................ 24

Appendix A - Appointment Order dated October 4, 2013 ................................... 40

Appendix B - Settlement Agreement with Landmasters and Court Order........... 58

Appendix C - October 16, 2009 email from the Township of Springwater .......... 69

Appendix D - May 28, 2014 email from Ainley Group......................................... 70

Appendix E - October 1, 2015 Letter from C.C. Tatham & Associates ............... 71

Appendix F - October 15, 2105 Letter from DLA Piper (Canada) LLP................ 73

-2-

Appendix G - October 29, 2015 Email from the Township of Springwater......... 74

Appendix H - Records Destruction Letters.......................................................... 75

Appendix I - Receiver’s Fee Affidavit – Brad Newton ......................................... 77

Appendix J - Receiver’s Counsel’s Fee Affidavit – Bruce Darlington.................. 94

Appendix K - Copies of invoices from Hiscock & Barclay LLP.......................... 149

Appendix L - Statement of Receipts & Disbursement for the period October 4,2013 to October 30, 2015 ........................................................... 183

Appendix M - Draft Certificate of Completion.................................................... 184

3 Blackline of Discharge Order to Model Order ................................................... 186

TAB 1



COMMERCIAL LIST

B E T W E E N:


and


Respondents


NOTICE OF MOTION(Motion returnable November 23, 2015)

KPMG Inc., in its capacity as receiver (the “Receiver”), without security, of all of

the assets, undertakings and properties of Atlas Block Co. Limited, Atlas Block

(Brockville) Ltd. and 1035163 Ontario, o/a Atlas Blocking Trucking, (collectively, the

“Debtors”), appointed pursuant to the Order of the Honourable Justice Brown, dated

October 4, 2013 (the “Appointment Order”), will make a Motion to a Judge presiding

over the Commercial List on Monday, November 23, 2015 at 10:00 a.m., or as soon after

that time as the Motion can be heard at the court house, 330 University Avenue, 7th Floor,

Toronto, Ontario, M5G 1R7.

1

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PROPOSED METHOD OF HEARING: The Motion is to be heard

[ ] in writing under subrule 37.12.1(1) because it is;

[ ] in writing as an opposed motion under subrule 37.12.1(4);

[X] orally.

THE MOTION IS FOR

(a) An order substantially in the form attached as Schedule “A” (the “Discharge

Order”), inter alia:

Service

(i) if necessary, abridging the time for service and filing of this notice of

motion and the motion record and dispensing with further service

thereof;

Approval of the Receiver’s Eighth Report and Activities

(ii) approving the Eighth Report of the Receiver dated November 11,

2015 (the “Receiver’s Eighth Report”), including the actions and

activities of the Receiver described in the Receiver’s Eighth Report;

Destruction of Records

(iii) approving the destruction of the Debtors’ books and records and the

payment of that service from the receivership;

2

-3-

Receiver’s Fees and Disbursements

(iv) approving the Receiver’s fees and disbursements in the aggregate

amount of $38,735.10;

(v) approving the fees and disbursements of the Receiver’s counsel,

DLA Piper (Canada) LLP (formerly Davis LLP) in the aggregate

amount of $61,400.20;

(vi) approving the fees and disbursements of the Receiver’s U.S.

lawyers, Hiscock & Barclay LLP, in the aggregate amount of $U.S.

31.740.66;

(vii) authorizing and approving the Reserve in the aggregate amount of

$17,500.00 for the completion of the receivership, as outlined in

Section 3 of the Receiver’s Eighth Report;

Distribution

(viii) authorizing and approving the proposed distribution to the Royal

Bank of Canada (“RBC”) of all of the remaining net proceeds of the

receivership, after payment of professional fees and disbursements,

payment of the services for the destruction of the Debtors’ books and

records, subject to the Reserve and any amounts owing on filing the

Receiver’s final HST return.

3

-4-

Receipts and Disbursements

(ix) approving the Receiver’s Statement of Receipts and Disbursements

for the period October 4, 2013 to October 30, 2015;

Vacating Charges

(x) vacating the Receiver’s Borrowing Charge (as defined in the

Appointment Order) upon the Receiver filing with the Court a

Receiver’s Certificate in the form set out as Schedule “A” to the

Discharge Order;

Discharge of Receiver

(xi) discharging and releasing KPMG as Receiver upon the Receiver

filing the Receiver’s Certificate; and

Ancillary Relief

(xii) granting such further and other Relief as to this Honourable Court

may seem just.

THE GROUNDS FOR THE MOTION ARE

Background

(a) the Debtors Atlas Block Co. Limited (“Atlas Block”), Atlas Block (Brockville)

Ltd. (“Atlas Brockville”) (collectively “Atlas” or the “Company”) and

1035162 Ontario Inc. o/a Atlas Block Trucking (“Atlas Block Trucking”)

were a family-owned group of companies that manufactured a range of

4

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concrete building and landscaping products including paving stones,

masonry, concrete veneers and concrete blocks. Atlas products were sold

directly to industrial and commercial construction contractors, residential

builders, brick layers and homeowners, as well as through their store front

locations and a dealership network throughout Ontario, Michigan and New

York State. Atlas Brockville is a wholly-owned subsidiary of Atlas Block;

(b) Atlas Block Trucking’s sole customers were Atlas Block and Atlas

Brockville. Atlas Block Trucking sold its assets and operations to Tombro

Trucking Limited in or about June 2013. Atlas Block Trucking is now

essentially a shell corporation;

(c) the Debtors’ head office was located at 15288 Highway 12, Midland,

Ontario (the “Victoria Harbour Real Property”). Atlas Block operated a

concrete product manufacturing plant from the same premises as the head

office, and a much larger manufacturing plant located at 2108 Flos Road

4 East, Hillsdale, Ontario (the “Hillsdale Plant”) as well. Atlas Brockville

operated a manufacturing plant from premises located at 3007 County

Road 29, Brockville, Ontario (the “Brockville Plant”). The Debtors owned

all premises;

(d) On December 6, 2013, Atlas Block and Atlas Brockville filed assignments in

bankruptcy and KPMG Inc. was appointed as Trustee. On December 20,

2013, this Court approved the sale of substantially all of Atlas’ assets,

including the Inventory, to Brampton Brick Limited, a competitor to Atlas.

5

-6-

(e) The bankruptcies of Atlas Block and Atlas Brockville are complete and the

Trustee has been discharged from both estates. The director of both Atlas

Block and Atlas Brockville have signed a letter requesting that all records of

the Debtors be destroyed.

(f) Since the filing of the Seventh Report of the Receiver, dated October 10,

2014, all outstanding issues have been resolved.

The Appointment Order

(g) pursuant to the Appointment Order, the Receiver was appointed as

receiver, without security, of the Assets;

(h) pursuant to the Appointment Order, the Receiver was given authority to,

inter alia:

(i) to engage consultants, appraisers, agents, experts, auditors,

accountants, managers, counsel and such other persons from time

to time and on whatever basis, including on a temporary basis, to

assist with the exercise of the Receiver's powers and duties,

including without limitation those conferred by this Order;

(ii) to settle, extend or compromise any indebtedness owing to the

Debtor; and

(iii) approving a borrowing charge in favour of the Receiver (the

“Receiver’s Borrowings Charge”);

6

-7-

(iv) apply to the Court for advice and direction in the discharge of its

powers and duties;

(i) the Receiver relies on the grounds set out in the Receiver’s Eighth Report;

(j) The provisions of the BIA and the Courts of Justice Act, RSO 1990, c C43

and the inherent and equitable jurisdiction of the Court.

(k) Rules 1.04, 1.05, 2.01, 2.03, 3.02, 16 and 37 of the Rules of Civil

Procedure, RRO 1990, Reg 194, as amended; and

(l) Such further and other grounds as the lawyers may advise.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

Motion:

(a) Receiver's Eighth Report, including the Appendices thereto;

(b) Such further and other evidence as the lawyers may advise and this

Honourable Court may permit.

7

-8-

November 12, 2015 DLA PIPER (CANADA) LLPBarristers & Solicitors1 First Canadian Place100 King Street West, Suite 6000P.O. Box 367Toronto ON M5X 1E2

Jennifer A. Whincup (LSUC# 60326W)Tel: 416-365-3425Fax: [email protected]

Bruce Darlington (LSUC# 25310K)Tel: 416-365-3529Fax: [email protected]


TO: ATTACHED SERVICE LIST

RCP-E 37A (July 1, 2007)

8

SERVICE LIST

AIRD & BERLIS LLPBarristers and SolicitorsBrookfield Place181 Bay Street, Suite 1800P.O. Box 754Toronto ON M5J 2T9

Sam Babe (LSUC# 49498B)[email protected]

Tel: 416-865-7718Fax: 416-863-1515

Lawyers for the Applicant

By Email

NORTON ROSE FULBRIGHT CANADA LLPBarristers and SolicitorsSuite 25001 Place Ville MarieMontréal PQ H3B 1R1

Daniel [email protected]

Tel: 514-837-4472Fax: 514-286-5474

Lawyers for G. Tackaberry & Sons

By Email

KPMG LLP, TRUSTEE FOR ATLAS BLOCK CO. LIMITED AND ATLAS BLOCK (BROCKVILLE) LTD.Box 976Suite 510, 21 King St. W.Hamilton ON L8N 3R1

Brad [email protected]

Tel: 905-523-2202Fax: 905-523-2200

Trustee

By Email

9

SIMPSONWIGLE LAW LLPBarristers and SolicitorsSims Square390 Brant StreetSuite 501Burlington ON L7R 4J4

Rosemary [email protected]

Tel: 905-639-1052 ext. 239Fax: 905-333-3960

Lawyers for Business Development Bank of Canada

By Email

RCAP LEASING INC.300 - 5575 North Service RoadBurlington ON L7L 6M1

RCAP Leasing Inc. - [email protected]

By Email

MCAP LEASING INC. AND MCAP LEASING LIMITED PARTNERSHIP300 - 5575 North Service RoadBurlington ON L7L 6M1

By Email

ATLAS POLAR COMPANY LIMITED60 Northline RoadToronto ON M4B 3E5

[email protected]

By Email

10

MINISTRY OF ECONOMIC DEVELOPMENT, EMPLOYMENT AND INFRASTRUCTURE

Legal Services Branch56 Wellesley Street West, 5th FloorToronto ON M7A 2E7

James G.L. Stewart, Senior [email protected]

Tel: 416-326-1019Fax: 416-326-1021

Susan Snelgrove, Senior [email protected]

Tel: 416-327-0636Fax: 416-327-0646

By Email

MINISTRY OF FINANCELegal Services Branch6th Floor, 33 King Street WestOshawa ON L1H 8H5

Kevin O'[email protected]

Tel: 905-433-6934Fax: 905-436-4510

By Email

ALLAN BLOCK CORPORATION, AND ALLAN BLOCK CANADA LLC7424 West 78th StreetBloomington MN. 55439

B. [email protected]

By Email

INTERSTAR4255 Portland BoulevardSherbrooke, Quebec J1L 3A5

[email protected]

Tel: 1-800.567.1857Fax: 819.563.1317

By Email

11

DEPARTMENT OF JUSTICEThe Exchange Tower130 King Street West, Suite 3400Toronto ON M5X 1K6

Diane [email protected]

Peter [email protected]

Tel: 416-952-8563Fax: 416-973-0810

By Email

KEITH KITCHEN FULL SERVICE TIRER.R. #2, 3890 Line 13 NorthColdwater ON L0K 1E0

Keith Kitchen Full Service [email protected]

By Email

B & K MOBILE REPAIRS1440 Division Road WestOrillia ON L3V 6H2

[email protected]

By Email

CIT FINANCIAL LTD.PO Box 4094, Station AToronto ON M5W 3T1

[email protected]

By Email

PORAVER NORTH AMERICA INC.2429 Bowman StreetInnisfil ON L9S 3V6

[email protected]

By Email

BALCAN PLASTICS INC.Suite 211 - 6665 Tomken RoadMississauga ON L5T 2C4

[email protected]

By Email

12

MORTON METALS351 W SOrillia ON L3V 5H1

[email protected]

By Email

PROST ASSOCIATES323 Midland AvenueMidland, ON L4R 3K5

Martin [email protected]

(705) 526-9328

Lawyers for 881229 Ontario Inc.

MINISTRY OF LABOUR400 University Avenue, 11th FloorToronto ON M7A 1T7

Tel: 416-326-7950Fax: 416-326-7985

By Email

By Fax

RASTIN & ASSOCIATES128 Wellington Street WestSuite 210Barrie, ON L4N 8J6

M. Steven [email protected]

Tel: 705-722-6393Fax: 705-722-9451

Lawyers for Donald Gordon

By Email

13

BRENT SPAGNOLDirector of PlanningTownship of Springwater2231 Nursery RoadMinesing, ON L0L 1Y2Tel: 705-728-4784 x 2049

[email protected]

By Email

14



COMMERCIAL LIST

THE HONOURABLE ) MONDAY, THE 23RD)

JUSTICE ) DAY OF NOVEMBER, 2015

B E T W E E N:


and


Respondents


DISCHARGE ORDER

THIS MOTION, made by KPMG Inc., in its capacity as receiver (the “Receiver”),

without security, of all of the assets, undertakings and properties of Atlas Block Co.

Limited, Atlas Block (Brockville) Ltd. and 1035163 Ontario, o/a Atlas Blocking Trucking,

(collectively, the “Debtors”), appointed pursuant to the Order of the Honourable Justice

Brown, dated October 4, 2013 (the “Appointment Order”), is for an order:

1. Abridging the time for service of the Notice of Motion and the Motion herein, if

necessary, and validating service thereof;

15

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2. approving the Eighth Report of the Receiver dated November 11, 2015 (the

“Receiver’s Eighth Report”), including the actions and activities of the Receiver

described in the Receiver’s Eighth Report;

3. approving the destruction of the Debtors’ books and records and the payment of

that service from the receivership;

4. approving the fees and disbursements of the Receiver, its counsel and its U.S.

counsel;

5. approving the distribution of the remaining proceeds available in the estate of the

Debtors;

6. approving the Receiver’s Statement of Receipts and Disbursements for the period

October 4, 2013 to October 30, 2015;

7. vacating the Receiver’s Borrowing Charge (as defined in the Appointment Order)

upon the Receiver filing with the Court a Receiver’s Certificate in the form set out as

Schedule “A” to the Receivership Discharge Order;

8. discharging KPMG Inc. as Receiver without security, of all of the assets,

undertakings and properties of the Debtors;

9. releasing KPMG Inc. from any and all liability, as set out in paragraph 5 of this

Order;

was heard this day at Toronto, Ontario.

16

-3-

ON READING the Eighth Report, the affidavits of the Receiver and its counsel as

to fees (the “Fee Affidavits”), and on hearing the submissions of counsel for the Receiver,

no one else appearing although served as evidenced by the Affidavit of Kim Hamill, sworn

November 12, 2015, filed;

1. THIS COURT ORDERS that the time for service of the Notice of Motion and the

Motion is hereby abridged and validated so that this motion is properly returnable today

and hereby dispenses with further service thereof.

2. THIS COURT ORDERS that the activities of the Receiver, as set out in the

Receiver’s Eighth Report, are hereby approved.

3. THIS COURT ORDERS that the destruction of the Debtors’ books and records

and the payment of that service from the receivership is hereby approved.

4. THIS COURT ORDERS that the fees and disbursements of the Receiver and its

counsel, as set out in the Receiver’s Eighth Report and the Fee Affidavits, are hereby

approved.

5. THIS COURT ORDERS that the anticipated further accrued and future fees and

disbursements of the Receiver and its counsel, DLA Piper (Canada) LLP, required to

complete the administration of the receivership estate, including in connection with this

motion, in the maximum amount of $17,500 (the “Reserve”).

6. THIS COURT ORDERS that the Receiver shall not be required to seek further

Court approval in respect of any distributions made on account of the Reserve and that

the Receiver and its counsel, DLA Piper (Canada) LLP, shall not be required to pass their

17

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accounts in respect of any further activities in connection with the administration of these

receivership proceedings, provided that the distributions made on account of the Reserve

do not exceed the all-inclusive aggregate amount of the Reserve.

7. THIS COURT ORDERS that, after payment of the fees and disbursements herein

approved, subject to any amounts owing on filing the Receiver’s final HST return, the

Receiver shall pay the monies remaining in its hands to Royal Bank of Canada

8. THIS COURT ORDERS that upon payment of the amounts set out in paragraphs 4,

5, and 7 hereof, and upon the Receiver filing a certificate certifying that it has completed

the other activities described in the Report, the Receiver shall be discharged as Receiver

of the undertaking, property and assets of the Debtors, provided however that

notwithstanding its discharge herein (a) the Receiver shall remain Receiver for the

performance of such incidental duties as may be required to complete the administration

of the receivership herein, and (b) the Receiver shall continue to have the benefit of the

provisions of all Orders made in this proceeding, including all approvals, protections and

stays of proceedings in favour of KPMG Inc. in its capacity as Receiver.

9. THIS COURT ORDERS that the Receiver’s Statement of Receipts and

Disbursements for the period October 4, 2013 to October 30, 2015 is hereby approved.

10. THIS COURT ORDERS that upon the Receiver filing the Receiver’s Certificate,

the (Receiver’s Borrowing Charge (as defined in the Appointment Order) shall be

terminated, discharged and released.

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11. THIS COURT ORDERS AND DECLARES that KPMG Inc. is hereby released and

discharged from any and all liability that KPMG Inc. now has or may hereafter have by

reason of, or in any way arising out of, the acts or omissions of KPMG Inc. while acting in

its capacity as Receiver herein, save and except for any gross negligence or wilful

misconduct on the Receiver's part. Without limiting the generality of the foregoing, KPMG

Inc. is hereby forever released and discharged from any and all liability relating to matters

that were raised, or which could have been raised, in the within receivership proceedings,

save and except for any gross negligence or wilful misconduct on the Receiver's part.

19

Schedule “A”Court File No. CV-13-10201-00CL


COMMERCIAL LIST



B E T W E E N:


and


Respondents


RECEIVER’S DISCHARGE CERTIFICATE

RECITALS

A. Pursuant to an Order of the Honourable Justice Brown of the Ontario Superior

Court of Justice (Commercial List) (the “Court”) dated October 4, 2013, KPMG Inc.,

was appointed as the receiver without security, of all of the assets, undertakings

and properties of Atlas Block Co. Limited, Atlas Block (Brockville) Ltd. and

1035163 Ontario, o/a Atlas Blocking Trucking, (collectively, the “Debtors”).

B. Pursuant to an Order of the Court dated November 23, 2015 (the “Discharge

Order”), KPMG Inc. was discharged as Receiver of the undertaking, property and

20

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assets of the Debtors to be effective upon the filing by the Receiver with the Court

of a certificate confirming that the Receiver has completed the activities described

in the Eighth Report and all matters to be attended to in connection with the

receivership have been provided for to the satisfaction of the Receiver, provided,

however, notwithstanding its discharge: (a) the Receiver shall remain Receiver for

the performance of such incidental duties as may be required to complete the

administration of the receivership herein, and (b) the Receiver shall continue to

have the benefit of the provisions of all Orders made in this proceeding, including

all approvals, protections and stays of proceedings in favour of KPMG Inc. in its

capacity as Receiver.

C. Unless otherwise indicated herein, terms with initial capitals have the meanings

set out in the Discharge Order

THE RECEIVER CERTIFIES that the Receiver has completed all activities

described in the Eighth Report and all matters to be attended to in connection with the

receivership have been provided for to the satisfaction of the Receiver.

KPMG Inc., in its capacity as Receiver,

without security, of all of the assets,

undertakings and properties of Atlas

Block Co. Limited, Atlas Block

(Brockville) Ltd. and 1035163 Ontario,

o/a Atlas Blocking Trucking, and not

in its personal or corporate capacity

Per: ___________________________

Name:

Title:

21

ROYAL BANK OF CANADA -and- ATLAS BLOCK CO. LIMITED et al.Applicant Respondents



COMMERCIAL LIST

PROCEEDING COMMENCED ATTORONTO

DISCHARGE ORDER

DLA PIPER (CANADA) LLP

Barristers & Solicitors1 First Canadian Place100 King Street West, Suite 6000P.O. Box 367Toronto ON M5X 1E2

Jennifer A. Whincup (LSUC# 60326W)[email protected]

Tel: 416-365-3425Fax: 416-369-5240

Bruce Darlington (LSUC# 25310K)[email protected]

Tel: 416-365-3529Fax: 416-369-5210


CAN: 20419932.1

22




COMMERCIAL LIST


NOTICE OF MOTION

DLA PIPER (CANADA) LLPBarristers & Solicitors1 First Canadian Place100 King Street West, Suite 6000P.O. Box 367Toronto ON M5X 1E2

Jennifer A. Whincup (LSUC# 60326W)[email protected]: 416-365-3425Fax: 416-369-5240

Bruce Darlington (LSUC# 25310K)[email protected]: 416-365-3529Fax: 416-369-5210


CAN: 20419938.1

23

TAB 2

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

TAB A

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

TAB B

58

59

60

61

62

63

64

65

66

67

68

TAB C

69

TAB D

70

TAB E

C.C.Tatham & Associates Ltd.Consulting Engineers

50 Anrlrew Stre ct Sor¡th, Sr¡itc 100

0rillla, 0ntario t3V 7T5

Tel: (705) 325-1753

Fax: (705) 325-7420

Email: [email protected]

Web: www.cctatlram.cornCollingwood llracebriclge 0rillia Barrie

October 1, 2015 via Email (brent,spagnol@springwater,ca)

CCïA File 307818

Brent SpagnolDirector of Planning

Township of Springwater2231 Nursery Road

Minesing, 0N LOL 1Y2

Atlas Block, 2108 Flos Road Four East, Township of SpringwaterRequest for Release of Letter of Credit

Dear Brent:

0n behalf of KPMG lnc.(court appointed receiver for Atlas Block) we are requesting the letter of credit

currently being held by the Township as security for the DevelopmentAgreement be released in full,

The deficiencies noted in the emaildated May 28,2014 (attached)from the Township Engineer (Ainley

Group) have been rectified and an inspection by C,C, Tatham & Associates Ltd. and Ainley Group on

July 27,2015 verified the repairs were acceptable,

Yours truly,C.C. Tatham & Associates Ltd

Re

Michael Buske, C,E,TProject ManagerMAB:ha

copy: Brad Newton, KPMG lnc. (via email: bradnewton@kmpg,ca)Mark Archer, Township of Springwater (via email: mark,archer@springwater,ca)John Bradbury, Ainley Group (via email: Bradbury@ainleygroup,com)

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Newton Brad

From:Sent:To:Cc:Sublect:

John M. Bradbury, C.E.T. lbradbury@ainleygroup,comlWednesday, MaY 28, 2014 3:56 PMMichaelBuskeClaude Marchand ; Ainley File; Mark Archer; Brad Sokachl Brenl SpagnolAtlas Block Site Plan

Hi Michael,

We noted the following deficiencies at our meeting this morn¡ng:

r Erosion at each driveway headwall is evident. The owner will reinstate with rip raplfilter cloth

and repair driveway headwalls as required,. Scouring of the ditch is evident at the outlet of each driveway culvert. These areas are to be

reinstated with filter cloth and rip rap.c The hickenbottom standpipe requires a galvanized steel, hinged cover,o The hickenbottom outlet pipe requires a rodent grate,o Various sections of road side ditch require reinstatement with topsoil and seed.

ln addition, the Township has provided the following comments:

o The rock check dams in the road side ditch are to remain in place,

o The Township is inquiring if it would be possible to pave the driveway aprons into the site as

gravel is constantly being tracked onto the road. They realize that this was not parl of theóriginal site plan works but it would really help them from a maintenance perspective.

Thanks Michaeland please let us know if you have any questions.

Regards,

John Bradbury, CETSenior Engineering Technologist

n550 Welham RoadBarrie. Ontario, L4N 827bradbny @ a i nlev o rou P. co mTel: (705) 726-3371Ext. 255Fax: (705) 7264391Cell: (705)790-6858

io^píelenoss ol lhe inlomoion w¡lh the oî¡Vnatü Ptr¡¿so ¿clvrso lha sondor il you ltoliovo ll,,s ttossage ,rûs ôeon rccoivod by you ,tt otto(.

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Whincup, Jennifer A.

From: Brent Spagnol <[email protected]>

Sent: October-29-2015 3:39 PM

To: Darlington, Bruce

Cc: 'Newton, Brad'

Subject: RE: 2108 Flos Road Four East, Township of Springwater

Good afternoon Mr. Darlington,

The Township is reviewing the matter with its engineers. Typically the process requires further inspection and verification that the identified deficiencies have been completed prior to the release of the remaining securities.

I assure you that the Township is taking the necessary steps to close the file and have the securities released.

Please feel free to call or email if you have any questions.

Brent Spagnol, MCIP, RPPManager of PlanningTownship of Springwater705-728-4784 x 2049

From: Darlington, Bruce [mailto:[email protected]] Sent: October 15, 2015 10:54 AMTo: Brent Spagnol <[email protected]>Cc: 'Newton, Brad' <[email protected]>Subject: 2108 Flos Road Four East, Township of Springwater

Dear Mr. Spagnol:

Please see the attached correspondence and the enclosures referred to therein.

Regards, Bruce

Bruce DarlingtonPartner

T 416.365.3529F 416.369.5210E [email protected]

DLA Piper (Canada) LLPSuite 6000, 1 First Canadian PlacePO Box 367, 100 King St WToronto ON M5X 1E2Canadawww.dlapiper.com

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COMMERCIAL LIST



B E T W E E N:


and


Respondents



RECITALS








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Per: ___________________________

Name:

Title:

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ONTARIO

SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

THE HONOURABLE

JUSTICE

)))

WEEKDAY, THE #

DAY OF MONTH, 20YR MONDAY, THE 23RD

)JUSTICE ) DAY OF NOVEMBER, 2015

B E T W E E N: PLAINTIFF

Plaintiff

-ROYAL BANK OF CANADA

Applicant

and –DEFENDANT

Defendant


Respondents


DISCHARGE ORDER

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THIS MOTION, made by [RECEIVER'S NAME]KPMG Inc., in its capacity as the

Court-appointed receiver (the "Receiver") of the undertaking, property and assets of

[DEBTOR] (“Receiver”), without security, of all of the assets, undertakings and properties

of Atlas Block Co. Limited, Atlas Block (Brockville) Ltd. and 1035163 Ontario, o/a Atlas

Blocking Trucking, (collectively, the “Debtors”), appointed pursuant to the

"Debtor"),Order of the Honourable Justice Brown, dated October 4, 2013 (the

“Appointment Order”), is for an order:

1. approving theAbridging the time for service of the Notice of Motion and the Motion

herein, if necessary, and validating service thereof;

1.2. approving the Eighth Report of the Receiver dated November 11, 2015 (the

“Receiver’s Eighth Report”), including the actions and activities of the Receiver as set

outdescribed in the report of the Receiver dated [DATE] (the "Report"); Receiver’s Eighth

Report;

3. approving the destruction of the Debtors’ books and records and the payment of

that service from the receivership;

2.4. approving the fees and disbursements of the Receiver and, its counsel; and its

U.S. counsel;

3.5. approving the distribution of the remaining proceeds available in the estate of the

Debtor; [and] Debtors;

6. approving the Receiver’s Statement of Receipts and Disbursements for the period

October 4, 2013 to October 30, 2015;

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7. vacating the Receiver’s Borrowing Charge (as defined in the Appointment Order)

upon the Receiver filing with the Court a Receiver’s Certificate in the form set out as

Schedule “A” to the Receivership Discharge Order;

4.8. discharging [RECEIVER'S NAME]KPMG Inc. as Receiver without security, of all of

the undertaking, property and assets, undertakings and properties of the Debtor[;

andDebtors;

5.9. releasing [RECEIVER'S NAME]KPMG Inc. from any and all liability, as set out in

paragraph 5 of this Order]1, ;

was heard this day at 330 University Avenue, Toronto, Ontario.

ON READING the Eighth Report, the affidavits of the Receiver and its counsel as

to fees (the "“Fee Affidavits"),”), and on hearing the submissions of counsel for the

Receiver, no one else appearing although served as evidenced by the Affidavit of

[NAME]Kim Hamill, sworn [DATE],November 12, 2015, filed2; ;

1. THIS COURT ORDERS that the time for service of the Notice of Motion and the

Motion is hereby abridged and validated so that this motion is properly returnable today

and hereby dispenses with further service thereof.

1.2. THIS COURT ORDERS that the activities of the Receiver, as set out in the

Receiver’s Eighth Report, are hereby approved.

1

If this relief is being sought, stakeholders should be specifically advised, and given ample notice. See also Note 4, below. 2

This model order assumes that the time for service does not need to be abridged.

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3. THIS COURT ORDERS that the destruction of the Debtors’ books and records

and the payment of that service from the receivership is hereby approved.

2.4. THIS COURT ORDERS that the fees and disbursements of the Receiver and its

counsel, as set out in the Receiver’s Eighth Report and the Fee Affidavits, are hereby

approved.

5. THIS COURT ORDERS that the anticipated further accrued and future fees and

disbursements of the Receiver and its counsel, DLA Piper (Canada) LLP, required to

complete the administration of the receivership estate, including in connection with this

motion, in the maximum amount of $17,500 (the “Reserve”).

6. THIS COURT ORDERS that the Receiver shall not be required to seek further

Court approval in respect of any distributions made on account of the Reserve and that

the Receiver and its counsel, DLA Piper (Canada) LLP, shall not be required to pass their

accounts in respect of any further activities in connection with the administration of these

receivership proceedings, provided that the distributions made on account of the Reserve

do not exceed the all-inclusive aggregate amount of the Reserve.

3.7. THIS COURT ORDERS that, after payment of the fees and disbursements herein

approved, subject to any amounts owing on filing the Receiver’s final HST return, the

Receiver shall pay the monies remaining in its hands to [NAME OF PARTY]3. Royal Bank

of Canada

3

This model order assumes that the material filed supports a distribution to a specific secured creditor or other party.

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4.8. THIS COURT ORDERS that upon payment of the amounts set out in paragraph

3paragraphs 4, 5, and 7 hereof [, and upon the Receiver filing a certificate certifying that it

has completed the other activities described in the Report],, the Receiver shall be

discharged as Receiver of the undertaking, property and assets of the DebtorDebtors,

provided however that notwithstanding its discharge herein (a) the Receiver shall remain

Receiver for the performance of such incidental duties as may be required to complete

the administration of the receivership herein, and (b) the Receiver shall continue to have

the benefit of the provisions of all Orders made in this proceeding, including all approvals,

protections and stays of proceedings in favour of [RECEIVER'S NAME]KPMG Inc. in its


9. [THIS COURT ORDERS that the Receiver’s Statement of Receipts and

Disbursements for the period October 4, 2013 to October 30, 2015 is hereby approved.

10. THIS COURT ORDERS that upon the Receiver filing the Receiver’s Certificate,

the (Receiver’s Borrowing Charge (as defined in the Appointment Order) shall be

terminated, discharged and released.

5.11. THIS COURT ORDERS AND DECLARES that [RECEIVER'S NAME]KPMG Inc.

is hereby released and discharged from any and all liability that [RECEIVER'S

NAME]KPMG Inc. now has or may hereafter have by reason of, or in any way arising out

of, the acts or omissions of [RECEIVER'S NAME]KPMG Inc. while acting in its capacity

as Receiver herein, save and except for any gross negligence or wilful misconduct on the

Receiver's part. Without limiting the generality of the foregoing, [RECEIVER'S

NAME]KPMG Inc. is hereby forever released and discharged from any and all liability

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relating to matters that were raised, or which could have been raised, in the within

receivership proceedings, save and except for any gross negligence or wilful misconduct

on the Receiver's part.]4.

_______________________________________

4

The model order subcommittee was divided as to whether a general release might be appropriate. On the one hand, the Receiver has presumably reported its activities to the Court, and presumably the reported activities have been approved in prior Orders. Moreover, the Order that appointed the Receiver likely has protections in favour of the Receiver. These factors tend to indicate that a general release of the Receiver is not necessary. On the other hand, the Receiver has acted only in a representative capacity, as the Court's officer, so the Court may find that it is appropriate to insulate the Receiver from all liability, by way of a general release. Some members of the subcommittee felt that, absent a general release, Receivers might hold back funds and/or wish to conduct a claims bar process, which would unnecessarily add time and cost to the receivership. The general release language has been added to this form of model order as an option only, to be considered by the presiding Judge in each specific case. See also Note 1, above.

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and


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RECITALS








192

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Per: ___________________________

Name:

Title:

193

Revised: May 11, 2010

DOCSTOR: 1201925\8




COMMERCIAL LIST


DISCHARGE ORDER

DLA PIPER (CANADA) LLP

Barristers & Solicitors1 First Canadian Place100 King Street West, Suite 6000P.O. Box 367Toronto ON M5X 1E2

Jennifer A. Whincup (LSUC# 60326W)[email protected]

Tel: 416-365-3425Fax: 416-369-5240

Bruce Darlington (LSUC# 25310K)[email protected]

Tel: 416-365-3529Fax: 416-369-5210


CAN: 20419932.1

194




COMMERCIAL LIST


MOTION RECORD

DLA PIPER (CANADA) LLPBarristers & Solicitors1 First Canadian Place100 King Street West, Suite 6000P.O. Box 367Toronto ON M5X 1E2

Jennifer A. Whincup (LSUC# 60326W)[email protected]: 416-365-3425Fax: 416-369-5240

Bruce Darlington (LSUC# 25310K)[email protected]: 416-365-3529Fax: 416-369-5210


Documents

ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL … · court file no. cv-13-10201-00cl ontario superior court of justice commercial list b e t w e e n: royal bank of canada applicant