COURT OF APPEAL FOR ONTARIO Court of Appeal File No. C60871 Court File No. 31-2016058 IN THE MATTER OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3, AS AMENDED AND IN THE MATTER OF THE PROPOSAL OF COGENT FIBRE INC. AMENDED NOTICE OF APPEAL COGENT FIBRE INC. (the Appellant or CFI ) APPEALS to the Court of Appeal from the decision and Order of the Honourable Mr. Justice Michael Penny (the Motion Judge ) dated August 12, 2015, made at the Superior Court of Justice (Commercial List) in Toronto. THE APPELLANT ASKS that the judgment decision and Order be set aside and a judgment be granted as follows: 1. an Order Ddismissing the motion of NS United Kaiun Kaisha, Ltd. ( NSU ), seeking to terminate the thirty day period for the Appellant to file a proposal pursuant to Section 50.4(11) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the BIA ); and 2. if necessary, an Order Ggranting the Appellant an extension of time to file its proposal pursuant to Section 50.4(9) of the BIA for a period of up to 45 days. 3. costs of the motion below and of this appeal. 4. such further and other relief as this Honourable Court may deem just. THE GROUNDS OF APPEAL are as follows: 1. As no reasons have yet to be provided but given the urgent nature of the Notice of Appeal, the Appellant believes that the motion judge applied the incorrect tests in his approach to both Sections 50.4(9) and 50.4(11) of the BIA.
- 2-2. More refined grounds will be provided following receipt of written reasons from the motion judge. 1. The Motion Judge erred in law in: (a) misinterpreting sections 50.4(9) and 50.4(11) of the BIA as requiring CFI to lead evidence of the terms of a proposal to creditors. (b) improperly applying the test for termination of the 30-day stay under Section 50.4(11) of the BIA. In particular, the Motion Judge erred in failing to give proper consideration to the interests of another material creditor, Nippon Yusen Kaisha ( NYK ), and the likelihood of CFI being able to make a viable proposal to creditors, including NYK, within the timeframe provided under the BIA. (c) improperly applying the test under Section 50.4(9) of the BIA for extending the 30-day stay. In particular, the Motion Judge erred in basing his decision on the absence of a proposal rather than on the evidence of good faith, due diligence and the likelihood of CFI being able to make a viable proposal within the timeframe provided under the BIA. (d) finding that CFI should have disclosed the contents of without prejudice negotiations. (e) extended. disregarding the recommendation of the Proposal Trustee that the stay should be (f) failing to properly consider NYK s status as a material creditor. (g) assuming that NSU was in a position to veto any proposal when the amount of its claim was still subject to being appealed before the courts of the United States of America. (h) failing to give weight to NSU s evidence that they would consider a proposal that provided better recovery than a bankruptcy. 2. Further evidence, which was not available at the hearing before the Motion Judge, is now available. That evidence is decisive, credible and would be expected to affect the result of this appeal.
- 3 - THE BASIS OF THE APPELLATE COURT S JURISDICTION IS: 1. Section 193(1)(a) of the BIA. 2. Leave to appeal is not required. 3. Section 134(4)(b) of the Courts of Justice Act. August 12, 2015 DENTONS CANADA LLP Toronto-Dominion Centre 77 King Street West, Suite 400 Toronto, Ontario M5K 0A1 Kenneth D. Kraft Tel: (416) 863-4374 Email:kenneth.kraft@dentons.com Sara-Ann Van Allen Tel: (416) 863-4402 Email:sara.vanallen@dentons.com Canadian Lawyers for the Appellant, Cogent Fibre Inc. TO: AIRD & BERLIS LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9 Kenneth R. Rosenstein Tel: (416) 865-3427 Email: krosenstein@airdberlis.com Sam Babe Tel: (416) 865-7718 Email: sbabe@airdberlis.com Counsel to the Respondent, The Fuller Landau Group Inc.
- 4 - BORDEN LADNER GERVAIS LLP Scotia Plaza 40 King Street West Toronto, ON M5H 3Y4 Roger Jaipargas Tel: (416) 367-6266 Email: RJaipargas@blg.com Doug Smith Tel: (416) 367-6015 Email: dsmith@blg.com Counsel to the Respondent, NS United Kaiun Kaisha, Ltd. BURKE & PARSONS 100 Park Avenue New York, NY 10017-5533 Christopher H. Dillon Tel: (212) 354-3817 Email: dillon@burkeparsons.com Counsel to the Respondent, Nippon Yusen Kaisha, Toyko DEPARTMENT OF JUSTICE Tax Section, P.O. Box 36, Exchange Tower 130 King Street West, Suite 3400 Toronto, Ontario M5X 1K6 Diane Winters Tel: (416) 973-3172 Email: diane.winters@justice.gc.ca MINISTRY OF FINANCE LEGAL SERVICES BRANCH Michael Starr Building 33 King Street West, 6 th Floor P.O. Box 627, Station A Oshawa, Ontario L1H 8H5 Kevin O Hara Tel: (905) 433-6934 Email: kevin.ohara@ontario.ca
- 5 - ARTHUR BIRNBAUM Barrister & Solicitor 208-90 Eglinton Ave E Toronto, ON M4P 2Y3 1801-5000 Yonge St Toronto, ON M2N 7E9 COURTESY COPIES: Email: arthur.birnbaum@rogers.blackberry.net Counsel to the Respondent, Cogent Biomass Inc. and CFP International Inc. TO: DENTONS US LLP 1221 Avenue of the Americas New York, New York 10020-1089 D. Farrington Yates Tel: (212) 768-6878 Email: farrington.yates@dentons.com James A. Copeland Tel: (212) 768-6937 Email: james.copeland@dentons.com U.S. Counsel for Cogent Fibre Inc. THE FULLER LANDAU GROUP INC. 151 Bloor Street West 12th Floor Toronto, Ontario M5S 1S4 Ken Pearl Tel: (416) 645-6519 Email: kpearl@fullerllp.com Proposal Trustee
Court of Appeal File No: Court File No. 31-2016058 IN THE MATTER OF THE PROPOSAL OF COGENT FIBRE INC. ONTARIO COURT OF APPEAL AMENDED NOTICE OF APPEAL DENTONS CANADA LLP 77 King Street West, Suite 400 Toronto-Dominion Centre Toronto, ON M5K 0A1 Fax: (416) 863-4592 Kenneth Kraft LSUC No. 31919P Tel: (416) 863-4374 Email: kenneth.kraft@dentons.com Sara-Ann Van Allen LSUC No. 56016C Tel: (416) 863-4402 Email: sara.vanallen@dentons.com Lawyers for the Appellant, Cogent Fibre Inc.