Second Report to Court of

Transcription

1 Second Report to Court of Duff & Phelps Canada Restructuring Inc. as Trustee of the Bankrupt Estates of Ornge Global GP Inc. and Ornge Global Holdings LP and First Report to Court as Trustee of the Bankrupt Estate of Ornge Global Solutions Inc. April 11, 2012

2 Contents Page 1.0 Introduction Purposes of this Report Background Investigations Ministry of Finance OPP Standing Committee on Public Accounts Service Recommendation...4 Appendices Tab Corporate Organizational Chart... A Record Sharing Protocol Orders... B Duff & Phelps Page i of i

3 ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST) Court File No.: IN THE MATTER OF THE BANKRUPTCY OF ORNGE GLOBAL GP INC., A CORPORATION INCORPORATED UNDER THE LAWS OF ONTARIO, CARRYING ON BUSINESS IN THE CITY OF MISSISSAUGA, IN THE PROVINCE OF ONTARIO AND IN THE MATTER OF THE BANKRUPTCY OF ORNGE GLOBAL HOLDINGS LP, A LIMITED PARTNERSHIP, ESTABLISHED UNDER THE LAWS OF ONTARIO, CARRYING ON BUSINESS IN THE CITY OF MISSISSAUGA, IN THE PROVINCE OF ONTARIO AND IN THE MATTER OF THE BANKRUPTCY OF ORNGE GLOBAL SOLUTIONS INC., A CORPORATION INCORPORATED UNDER THE LAWS OF ONTARIO, CARRYING ON BUSINESS IN THE CITY OF MISSISSAUGA, IN THE PROVINCE OF ONTARIO REPORT OF DUFF & PHELPS CANADA RESTRUCTURING INC. AS TRUSTEE IN BANKRUPTCY APRIL 11, Introduction On February 2, 2011, the Ontario Superior Court of Justice (In Bankruptcy and Insolvency) ( Court ) made orders (the Bankruptcy Orders ) pursuant to the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B.-3, as amended (the BIA ) adjudging Ornge Global GP Inc. ( GP ) and Ornge Global Holdings LP ( LP ) bankrupt. The applications for the Bankruptcy Orders were made by Ornge Global Real Estate Inc. Pursuant to the Bankruptcy Orders, Duff & Phelps Canada Restructuring Inc. ( D&P ) was appointed trustee of the bankrupt estates of GP and LP. Duff & Phelps Page 1 of 4

4 LP owns the shares of Ornge Global Solutions Inc. ( Solutions ), among other companies. On March 22, 2012, D&P, in its capacity as trustee in bankruptcy of LP, by its general partner GP, made an assignment in bankruptcy pursuant to the BIA on behalf of Solutions (Solutions, GP and LP are collectively referred to as the Companies ). D&P was also appointed trustee of the bankrupt estate of Solutions. For the balance of this report, Trustee refers to D&P in its capacity as trustee in bankruptcy of the Companies. A corporate organizational chart is attached as Appendix A. This report ( Report ) is being filed by D&P in its capacity as Trustee. 1.1 Purposes of this Report The purposes of this Report are to: a) Provide background information about the Companies; b) Advise the Court of a request by Fasken Martineau DuMoulin LLP ( Faskens ), the Companies pre-bankruptcy legal counsel, to allow Fasken to provide privileged information, documentation and testimony in any investigation being undertaken by the Ministry (as defined below), the Ontario Provincial Police ( OPP ), the Ontario Legislature s Standing Committee on Public Accounts (the Committee ) or other authorities (collectively, the Authorities ) concerning the Companies; and c) Recommend that this Court make an order authorizing the Trustee to waive privilege on behalf of the Companies for the purpose of allowing Faskens to provide information, documentation and testimony to the Authorities. 2.0 Background The Companies are part of a group of for-profit and not-for-profit entities (collectively the Ornge Group ). Ornge provides air transport medical services to patients requiring critical, acute or emergency care in Ontario. The services provided by Ornge are a component of Ontario s publicly funded healthcare system. The Companies and their subsidiaries were formed as part of Ornge s initiative to create for-profit businesses to offer: a) Consulting and advisory services related to patient transport systems and transport medicine to governments and agencies outside of Ontario; and b) Travel healthcare solutions to individuals and corporations under a membership plan. Duff & Phelps Page 2 of 4

5 3.0 Investigations In connection with the investigations described below, which the Trustee believes is in the public interest, it is necessary for the Ministry, the OPP and the Committee to have access to Faskens information, documentation and testimony, including communications that are subject to legal professional privilege or other privileges. The Trustee believes that it cannot waive privilege without Court approval. The inspector appointed in the GP and LP bankruptcies has authorized the Trustee to seek the Court s approval in this regard. No inspectors have been appointed in the Solutions estate as of the date hereof. The Trustee has also been advised by Faskens and its counsel that all Ornge entities that may claim an interest in such privileged information have authorized Faskens to provide information and documents in its files ( Records ) to the Authorities in connection with the investigations. The Trustee therefore respectfully recommends that the Court grant such approval. 3.1 Ministry of Finance The Trustee has previously reported that the Ministry of Finance (Ontario) ( Ministry ) has been conducting an investigation of the Ornge Group since January 16, Pursuant to orders made February 8, 2012 (the Record Sharing Protocol Orders ), the Court approved a protocol (the Record Sharing Protocol ) between the Trustee and the Ministry concerning access to and the safeguarding of physical and electronic documents that may be in the possession of either party during the course of the bankruptcy as well as the sharing of findings and information between the parties. Copies of the Record Sharing Protocol Orders are provided as Appendix B. Pursuant to Section 3 of the Record Sharing Protocol, directions are to be sought from the Court in the event either party wishes to review Records subject to, or which may be subject to, privilege. 3.2 OPP The Trustee is continuing to cooperate with the Ministry in its investigation. On February 22, 2012, the Trustee met with a representative of the OPP. The Trustee understands that the OPP is also investigating certain matters involving the Ornge Group. Faskens has requested that the Trustee waive privilege on behalf of the Companies so that Faskens can provide the Companies Records to the OPP. Duff & Phelps Page 3 of 4

6 3.3 Standing Committee on Public Accounts On March 21, 2012, the Office of the Auditor General of Ontario released the Special Report on Ornge Air Ambulance and Related Services (the Auditor General s Report ) to the Honourable Speaker of the Legislative Assembly of the Province of Ontario, as requested by the Minister of Health and Long-Term Care and in accordance with Section 17 of the Auditor General Act, R.S.O. 1990, c. A.35. The Trustee has been advised by Faskens that certain current and former lawyers at Faskens have been invited to attend public meetings of the Committee to answer questions arising out of the Auditor General s Report. 4.0 Service The Trustee is serving the former directors of the Companies with its motion materials in the event they wish to respond to the relief being sought. 5.0 Recommendation Based on the foregoing, the Trustee respectfully recommends that this Court make an order granting the relief detailed in Section 1.1 (c) of this Report. All of which is respectfully submitted, * * * DUFF & PHELPS CANADA RESTRUCTURING INC. IN ITS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATES OF ORNGE GLOBAL GP INC., ORNGE GLOBAL HOLDINGS LP AND ORNGE GLOBAL SOLUTIONS INC. AND NOT IN ITS PERSONAL CAPACITY Duff & Phelps Page 4 of 4

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