No. S133713 Vancouver Registry

No. S133713
Vancouver Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT ACT,
R.S.C. 1985, C. c-36, AS AMENDED
AND
IN THE MATTER OF THE BUSINESS CORPORATIONS ACT,
S.B.C. 2002, c. 57, AS AMENDED
AND
IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF 505396 B.C.
LTD., COUGAR CRUSHING & SCREENING LTD., COUGAR SERVICES LTD.,
COWICHAN VALLEY CONTRACTING LTD., WINDCHIME DEVELOPMENTS INC., D.S.
JOHEL INDUSTRIES LTD., ISLAND EXCAVATING LTD., JOHEL BROTHERS
CONTRACTING LTD., JBC HOLDINGS LTD., JOHEL BROTHERS CONSTRUCTION
CORPORATION, COWICHAN VALLEY CONCRETE LTD., COWICHAN LAKE
CONCRETE LTD., JOHEL IN VESTMENTS LTD., 0716973 B.C. LTD., DAVINCO
INDUSTRIES LTD., AND COWICHAN LAKE DEVELOPMENT CORPORATION
PETITIONERS
NOTICE OF APPLICATION
Name of applicant:
To:
Maynards Industries Ltd.
The Service List and their counsel
TAKE NOTICE that an application will be made by the applicant to Madam Justice Brown at the
courthouse at 800 Smithe Street, Vancouver, British Columbia, on Friday, December 20, 2013 at
9:15 a.m. for the order set out in Part I below.
Part 1:
1.
ORDERS SOUGHT
An Order in substantially the form of the draft Order attached hereto as Schedule "A"
that:
DMVAN/2858690000618737568.2
2
(a)
The 51h Affidavit of Aaron Stewardson, dated December 19, 2013, including the
exhibit thereto (the "Second Stewardson Confidential Affidavit"), be sealed in
the court file in these proceedings and be segregated from, and not form part of,
the public record; and
(b)
The Second Stewardson Confidential Affidavit be filed with the Court under seal
in an envelope labelled with (a) the style of cause in this action, (b) a description
of the contents of the envelope and (c) the words "Confidential - SUBJECT TO
THE ORDER OF THE COURT MADE DECEMBER 20, 2013". The Second
Stewardson Confidential Affidavit be kept under seal by court registry staff unless
otherwise directed by the Court.
Part 2:
2.
FACTUAL BASIS
By agreement dated December 19, 2013, Maynards Industries Ltd. ("Maynards") and
PricewaterhouseCoopers Inc., in its capacity as receiver (the "Receiver") of certain of the
Petitioners (collectively, the "Johel Receivership Companies") entered into an
agreement (the "Auction Agreement") pursuant to which Maynards was engaged to sell
certain equipment (the "Equipment") of the Johel Receivership Companies in
accordance with the terms of the Auction Agreement.
3.
The Auction Agreement includes the following terms that Maynards believes should not
be made public for the following reasons:
(a)
Sections 6.3, 6.4 and 6.6 of the Auction Agreement specify the minimum
guaranteed amounts Maynards will pay to the Receiver in respect of the
Equipment, which are enumerated in Schedules "B" through "E" to the Auction
Agreement (the "Net Minimum Guarantee"). Maynards is of the view that if
this information were made public, it may enable potential purchasers to
determine the lower end of the range of values ascribed to the assets by
Maynards, thereby potentially resulting in lower bids for the assets upon their
sale.
DMVAN/285869(OO6/8737568.2
3
(b)
Sections 5.5, 6.1, 6.4 and 8.3 of the Auction Agreement include pricing terms
which constitute Maynards' competitive pricing information. If that information
were made public, it might in the future be used by Maynards' competitors to gain
a competitive advantage when making proposals to clients. Those same clients
likely benefit from competitive bid processes where the bidders' pricing terms on
past deals are not known to one another,
Part 3:
4.
LEGAL BASIS
The court may order that material filed with the court be kept confidential and filed under
seal in cases where it is necessary to prevent a serious risk to an important interest,
including a commercial interest.
Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 SCR 522 at pp. 543-544
5.
In the present case, there are several commercial interests at stake, including those of the
secured lenders with registered security interests in the Equipment, all of which are
concerned to see the best possible sale price obtained for the Equipment being sold by
Maynards. Similarly, Maynards is concerned that the pricing terms of the Auction
Agreement not be made public at it may give its competitors an unfair advantage on
future proposals to potential clients.
6.
In the circumstances, it is appropriate that an order be made in order to keep the pricing
terms of the Auction Agreement confidential. The sealing order sought by Maynards best
accomplishes that purpose.
Part 4 MATERIAL TO BE RELIED ON
1
4th
2.
5th Affidavit of Aaron Stewardson made December 19, 2013
3.
all pleadings had and taken herein; and
4.
such further and other material as counsel may advise and this Honourable Court deems
admissible.
Affidavit of Aaron Stewardson made December 19, 2013;
The applicant estimates that the application will take 10 minutes.
DM_VAN/285869.OO/8737568.2
-4-
This matter is not within the jurisdiction of a Master.
TO THE PERSONS RECEIVING THIS NOTICE OF APPLICATION: If you wish to respond
to this Notice of Application, you must, within 5 business days after service of this Notice of
Application or, if this application is brought under Rule 9-7, within 8 business days after service
of this Notice of Application,
(a)
file an Application Response in Form 33,
(b)
file the original of every affidavit, and of every other document, that
(c)
Dated:
(i)
you intend to refer to at the hearing of this application, and
(ii)
has not already been filed in the proceeding, and
service on the applicant 2 copies of the following, and on every other party of
record one copy of the following:
(i)
a copy of the filed Application Response;
(ii)
a copy of each of the filed affidavits and other documents that you intend
to refer to at the hearing of this application and that has not already been
served on that person;
(iii)
if this application is brought under Rule 9-7, any notice that you are
required to give under Rule 9-7(9).
19-Dec-20 13
Signature of Lawyer for Applicant
To be completed by the court only:
Order made
in the terms requested in paragraphs ............ of Part 1 of
0
this Notice of Application
0
with the following variations and additional terms:
Date:
Signature of 0 Judge 0 Master
DM VAN/285869.OOOO6/873756.2
5
The Solicitors for the applicant, Maynards Industries Ltd., are Fasken Martineau DuMoulin LLP, whose office
address and address for delivery is 2900 550 Burrard Street, Vancouver B.C. V6C 0A3 Telephone: 604 631 3131
(Reference: Danielle Toigo/ 285869.00006)
DMVAN1285869.uXxie/8737568.2
APPENDIX
THIS APPLICATION INVOLVES THE FOLLOWING:
El
discovery: comply with demand for documents
0
discovery: production of additional documents
other matters concerning document discovery
extend oral discovery
other matter concerning oral discovery
amend pleadings
add/change parties
summary judgment
El
summary trial
0
service
mediation
0
adjoumments
proceedings at trial
o
case plan orders: amend
o
case plan orders: other
El
experts
DMVAN/25869OOOO6/8737568 .2
SCHEDULE "A"
No. S133713
Vancouver Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF THE COMPANIES' CREDITORS ARRANGEMENT A CT,
R.S.C. 1985, C. c-36, AS AMENDED
AND
IN THE MATTER OF THE BUSINESS CORPORA TIONS ACT,
S.B.C. 2002, c. 57, AS AMENDED
AND
IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF 505396 B.C.
LTD., COUGAR CRUSHING & SCREENING LTD., COUGAR SERVICES LTD.,
COWICHAN VALLEY CONTRACTING LTD., WINDCHIME DEVELOPMENTS INC., D.S.
JOHEL INDUSTRIES LTD., ISLAND EXCAVATING LTD., JOHEL BROTHERS
CONTRACTING LTD., JBC HOLDINGS LTD., JOHEL BROTHERS CONSTRUCTION
CORPORATION, COWICHAN VALLEY CONCRETE LTD., COWICHAN LAKE
CONCRETE LTD., JOHEL INVESTMENTS LTD., 0716973 B.C. LTD., DAVINCO
INDUSTRIES LTD., AND COWICHAN LAKE DEVELOPMENT CORPORATION
PETITIONERS
ORDER MADE AFTER APPLICATION
)
)
BEFORE
)
)
THE HONOURABLE
MADAM JUSTICE BROWN
)
)
DECEMBER 20, 2013
ON THE APPLICATION OF Maynards Industries Ltd. ("Maynards") coming on for hearing at
Vancouver, British Columbia on the date noted above, and on hearing Danielle Toigo, counsel
for Maynards, and those other counsel listed on Schedule "A" hereto;
THIS COURT ORDERS that:
The time for service of the Notice of Application be and is hereby abridged and that the
Notice of Application is properly returnable today and service upon any interested party,
other than those parties on the service list for this proceeding, is hereby dispensed with.
DMVAN/285869.00006/87382 18.1
-22.
The 4th Affidavit of Aaron Stewardson, sworn December 19, 2013, including the exhibit
thereto (the "Second Stewardson Confidential Affidavit"), be sealed in the court file in
these proceedings and be segregated from, and not form part of, the public record;
3.
The Second Stewardson Confidential Affidavit be filed with the Court under seal in an
envelope labelled with (a) the style of cause in this action, (b) a description of the
contents of the envelope and (c) the words "Confidential - SUBJECT TO THE ORDER
OF THE COURT MADE DECEMBER 20, 2013". The Second Stewardson Confidential
Affidavit be kept under seal by court registry staff unless otherwise directed by the Court;
and
4.
Endorsement of this Order by counsel appearing on this application, other than counsel
for Maynards, is hereby dispensed with.
THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:
Signature of Lawyer for Maynards Industries Ltd.
Danielle Toigo
BY THE COURT
REGISTRAR
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-3-
SCHEDULE "A"
List of Counsel
Counsel Name
DM_VAN/285869.00006/87382 18.1
Name of Party
No. S133713
Vancouver Registry
IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATFER OF THE COMPANIES' CREDITORS
ARRANGEMENT A CT,
R.S.C. 1985, C. c-36, AS AMENDED
AND
IN THE MATTER OF THE BUSINESS CORPORATIONS
A CT,
S.B.C. 2002, c. 57, AS AMENDED
AND
IN THE MATTER OF A PLAN OF COMPROMISE OR
ARRANGEMENT OF 505396 B.C. LTD. et al
PETITIONERS
ORDER MADE AFTER APPLICATION
FASKEN MARTINEAU DuMOULIN LLP
Banisters and Solicitors
2900 - 550 Burrard Street
Vancouver, BC, V6C 0A3
+1 604631 3131
Counsel: Danielle Toigo
Matter No: 285869.00006
DM_VAN/28586900006187382 18.1