923451 Ontario Limited (formerly known as Comstock Canada Ltd.), CCL Realty Inc. and CCL Equities Inc.

CCAA Filing

Page last updated: October 16, 2014

This page is for information purposes only and you should consult your professional adviser if you have any questions or are uncertain as to your rights or obligations.


On July 9 2013, Comstock Canada Ltd., (“Comstock”), CCL Realty Inc. (“Realty”) and CCL Equities Inc. (“Equities” and collectively with Comstock and Realty the “Comstock Group” or the “Applicants”) applied for and received an order (the “Initial Order”) for protection pursuant to the Companies’ Creditors Arrangement Act (“CCAA”), R.S.C.1985, c.C-36 from the Ontario Superior Court of Justice, which includes, among other things, a stay of proceedings against the Comstock Group, and the appointment of PwC as monitor of the Applicants (the “Monitor”).

The Initial Order permitted the Comstock Group to continue its restructuring proceedings under the CCAA and provided that the Comstock Group’s proposal proceedings commenced under the Bankruptcy and Insolvency Act (Canada) (the “BIA”) should be continued under the CCAA and that the provisions of BIA shall have no further application to the Comstock Group.

The Initial Order, also, among other things:

  1. granted a priority charge over certain property of the Applicants, in the amount of $750,000 to secure the fees and disbursements of the Monitor, counsel to the Monitor, counsel to the Directors and the Applicants’ counsel (the “Administration Charge”);
  2. granted a priority charge over certain property of the Applicants, in the amount of $4.6 million, in order to protect the applicants’ directors and officers from certain potential liabilities (the “Directors’ Charge”);
  3. authorized the Applicants to obtain and borrow under a Debtor-in-Possession Demand Revolving Credit Facility with Bank of Montreal (the “DIP Lender”) up to $7.8 million and granted a priority charge in favour of the DIP Lender (the “DIP Lender’s Charge”);
  4. granted a stay of proceedings against the Comstock Group and its Directors and Officers until August 8, 2013;
  5. authorized the Comstock Group to pay certain expenses incurred prior to or after the date of the Initial Order, subject to the provisions of the Initial Order;
  6. sealed confidential documentation; and
  7. approved the Cost Reimbursement Agreement made between Comstock and Rio Tinto Alcan Inc.

In accordance with section 23 (1)(ii)(b) of the CCAA and the Initial Order, a notice was sent to all creditors owed more than $1,000 on July 11, 2013.

Notice to Creditors
List of Creditors

Status of File as of October 16, 2014

On October 15, 2014, the Court issued orders that:

  1. approved the Minutes of Settlement between 923451 Ontario Limited and Vale Canada Limited (“Vale”);
  2. approved the Minutes of Settlements between 923451 Ontario Limited and EllisDon Corporation (“EllisDon”);
  3. ordered the Accountant of the Superior Court of Justice to deliver to Advocates LLP on behalf of EllisDon certain Lien Bonds for cancellation;
  4. ordered that the Claim for Lien #AT34009056 in LRO #80 of Comstock is discharged;
  5. ordered that Comstock’s action issued under Court File No. CV-13-00492471 (Toronto), is dismissed on a without cost basis;
  6. ordered that the Monitor be authorized to discontinue the maintenance of the Companies’ corporate extra-provincial registrations; and
  7. approved the activities of the Monitor as set out in the Monitor’s Fourteenth Report.

Status of File as of October 10, 2014

On October 9, 2014, the Monitor filed its Fourteenth Report to provide the Court with information in respect of:

  1. the Monitor’s activities since September 8, 2014,
  2. the Monitor’s negotiations with Vale Canada Limited (“Vale”) regarding certain holdback and project receivable amounts owing by Vale to Comstock;
  3. the Monitor’s negotiations with EllisDon corporation (“EllisDon”) regarding certain holdback and project receivable amounts owing by EllisDon to Comstock;
  4. the Monitor’s request to discontinue the maintenance of the Applicants’ corporate extra-provincial registrations;
  5. the Monitor’s consent to the request by Hamilton Health Sciences Corporation for a lifting of the stay of proceedings for the purpose of permitting Hamilton Health Sciences Corporation to proceed in the Ontario Superior court of Justice, Court File No. CV-11-424055-00;

and to recommend that the Court issue an order:

  1. approving the settlement agreement to be entered into by the Monitor, on behalf of Comstock, with Vale;
  2. approving the settlement agreement to be entered into by the Monitor, on behalf of Comstock, with EllisDon;
  3. authorizing the Monitor to discontinue the maintenance of the Applicants’ corporate extra-provincial registrations without prejudice to the Applicants’ ability within these proceedings to enforce actions or claims against parts located in such provinces; and
  4. approving the Fourteenth Report and the activities of the Monitor as set out in the Fourteenth Report.

A motion will be heard on October 15, 2014.

Status of File as of September 15, 2014

On September 15, 2014, the Court granted an order approving a settlement agreement between the Monitor, on behalf of 923, and Ontario Power Generation Inc.

On the same day, the Court granted an order approving the Monitor’s activities as outlined in its Thirteenth Report and at the same time, adjourning the request to destroy certain books and records of the Company to be brought back before the Court in six months.

Status of File as of September 9, 2014

On September 8, 2014, the Monitor completed its Thirteenth Report to provide the Court with information in respect of:

  1. the Monitor’s activities since the date of the Twelfth Report;
  2. 923’s receipts and disbursements from the date of the Enhanced Powers Order (as defined in the Twelfth Report) to August 31, 2014;
  3. the Monitor’s negotiations with Ontario Power Generation Inc. (“OPG”) regarding certain holdback and project receivable amounts owing by OPG to 923;
  4. the Monitor’s discussions with certain significant stakeholder creditors regarding the allocation of professional fees incurred during 923’s CCAA proceedings, source deduction arrears amounts and potential D&O Claims; and
  5. the Monitor’s review of various Lien Claims (as defined in the Lien Regularization Order), Trust Claims and D&O Claims filed pursuant to the Lien Regularization Order and Claims Procedure Order, respectively;

and to seek an order of the Court:

  1. approving the settlement agreement to be entered into by the Monitor, on behalf of 923, with OPG;
  2. permitting the Monitor to destroy such books, records and documents relating to the Companies that are no longer required for the administration of the Companies’ estates; and
  3. approving the Thirteenth Report and the activities of the Monitor as set out in the Thirteenth Report.

A motion will be heard on September 15, 2014.

Status of File as of July 21, 2014

On July 14, 2014, Bank of Montreal (“BMO”) filed a bankruptcy application with the Court. BMO will take no further steps with respect to the application without prior written consent of the Monitor or leave of the Court.

Status of File as of June 25, 2014

On June 25, 2014, the Court approved a Claims Procedure Order for the identification, resolution and barring of certain construction trust claims (“Trust Claims”) against Comstock and certain claims against any of Comstock’s respective present and former directors and officers (D&O Claims”), collectively (the “Claims Process”). All Trust Claims or D&O Claims must be delivered to the Monitor on or before the Claim Bar Date of 5:00 p.m. Eastern Standard Time on July 31, 2014 or such later date as may be order by the Court.

Complete details of the Claims Process are posted under the Claims Process tab of this website.

Also, on June 25, 2014, the Court issued an order:

  1. extending the Stay Period to December 31, 201;
  2. authorizing the Monitor to make a distribution to Bank of Montreal, in the amount of $2,250,000, from the proceeds of real estate;
  3. approving the activities of the Monitor as set out in the Monitor’s Twelfth Report;
  4. approving the fees and disbursements of the Monitor and its legal counsel as set out in the Twelfth Report; and
  5. discharging the Critical Supplier Charge (as defined in the Twelfth Report);

The relief being sought by the Monitor to pay the employee portion of the source deduction arrears owed by the Applicants to Canada Revenue Agency was withdrawn at this time.

Status of File as of June 17, 2014

On June 17, 2014, the Monitor completed its Twelfth Report to provide the Court with information in respect of:

  1. the Monitor’s activities, including its efforts to realize on the Companies residual assets;
  2. the Companies’ cash receipts and disbursements from October 4, 2013 to May 31, 2014;
  3. the Monitor’s ongoing efforts to collect accounts receivable owing to 923451 Ontario Limited (“923”) from its customers and the Monitor’s dealings with various lien claimants, including the process the Monitor has undertaken to review lien claims;
  4. the portion of the proceeds of realization of real property sold to HB Construction Company Ltd. (“HB”) that is currently distributable to the Bank of Montreal (“BMO”) and the calculation of such distribution;
  5. the review of the BMO’s security in respect of the real property sold to HB;

and to seek an order of the Court:

  1. setting aside the critical supplier charge in the amount of $2,000,000 granted to Refac Industrial Suppliers Inc. pursuant to an order of the Court dated July 26, 2013;
  2. approving the real estate distribution to BMO, in the amount of $2,250,000;
  3. approving the payment of the employees portion of source deduction arrears to Canada Revenue Agency;
  4. approving a procedure (“Trust Claims Procedure”) for the solicitation, submission, evaluation, adjudication and barring of the claims of any subcontractors claiming to be creditors of the Companies, as the beneficiary of any trust fund constituted or otherwise provided for pursuant to applicable provincial builders’ lien or construction lien legislation and that have not already been paid or assumed during the CCAA proceedings or barred pursuant to the Lien Regularization Order;
  5. authorizing and directing the Monitor to administer the Trust Claims Procedure;
  6. approving a procedure (the “D&O Claims Procedure”) for the solicitation, submission, evaluation, adjudication and barring of claims against the directors and officers of the Companies which arose or arise on or after June 28, 2013;
  7. authorizing and directing the Monitor to administer the D&O Claims Procedure;
  8. approving the accounts of the Monitor, including the accounts of the Proposal Trustee and the Interim Receiver for the period up to April 30, 2014;
  9. approving the accounts of the Monitor’s legal counsel for the period up to April 30, 2014;
  10. approving the Twelfth Report and the activities of the Monitor as set out in the Twelfth Report; and
  11. extending the Stay of Proceedings until December 31, 2014.

A motion will be heard on June 25, 2014.

Status of File as of April 28, 2014

On April 30, 2014, the Court issued an order approving the amendment (the “Amending Agreement”) to the Agreement of Purchase and Sale between Comstock, CCLRealty and HB Construction Ltd (the “Purchaser”) and vesting in the Purchaser the RSW Claim, as described in the Amending Agreement.

On the same day the Court issued an endorsement to an order dated April 9, 2014 with respect to certain outstanding relieve sought by Nadalin Energy Services Inc. indicating that the matter had been resolved and the motion withdrawn.

Status of File as of April 24, 2014

On April 23, 2014, the Monitor filed its Eleventh Report to provide the Court with information regarding:

  1. the amendment to the Agreement of Purchase and Sale HB APA entered into on April 23, 2014 between Comstock, CCL Realty and HB Construction Company Ltd. and
  2. the motion brought by Nadalin Energy Services Inc. (“Nadalin”) seeking an order lifting of the stay of proceedings to allow it to perfect its lien against the Hullmark Project and directing Comstock and the Monitor to disclose documents and information in their possession or control in respect of certain claims for lien filed by Nadalin;

    and to recommend that the Court:

  3. issue the Approval and Vesting Order (as defined in the Eleventh Report); and
  4. dismiss the outstanding relief being sought by Nadalin.

A motion will be heard on April 30, 2014.

Status of File as of April 10, 2014

On April 9, 2014, the Court granted, which among other things approved adopted the E-Service Protocol of the Commercial List, approved the sale process and Agreement of Purchase and Sale between CCL Realty Inc. (“CCL”) and 1906320 Ontario Inc. for the sale of CCL’s real property located at 3475 Landmark Road, Burlington, Ontario (the “Burlington Real Property”) and authorized the Monitor to make a distribution to BMO from the proceeds of sale of the Burlington Real Property.

Status of File as of April 1, 2014

On March 31, 2014, the Monitor filed its Tenth report to provide the Court with information in respect of:

  1. the truncation of the Service List;
  2. the sales process (the “Sales Process”) undertaken in respect of the Burlington Real Property;
  3. the Agreement of Purchase and Sale (the “33475 APS”), as amended, between CCL Realty and 1906320 Ontario Inc. (the “Purchaser”);
  4. the review of the Bank of Montreal’s security in respect of real property municipally known as 3475 Landmark Road, Burlington, Ontario (“3475 Landmark”) and the opinion of the Monitor’s independent legal counsel, Davis Ward Phillips & Vineberg LLP with respect to the validity and enforceability of the such security with respect to 3475 Landmark;

and to seek an order of the Court:

  1. approving and adopting by reference the E-Service Protocol of the Commercial List (“Protocol”) and declaring that subsequent service of documents in the proceedings made in accordance with the Protocol to be valid and effective service;
  2. approving the list of stakeholders upon whom subsequent service is to be effected in the proceedings by e-mail in accordance with the Protocol, which is to be posted on the Monitor’s website subject to the court’s approval;
  3. approving the 3475 APS as amended, and vesting 923 and CCL Realty’s right, title and interest in and to 3475 Landmark in the Purchaser;
  4. approving an interim distribution to BMO from the proceeds of sale of 3475 Landmark, subject to the maintenance of a reserve for costs associated therewith;
  5. authorizing the Monitor to make subsequent distributions from the proceeds of sale of 3475 Landmark, once all costs arising out of the sale have been paid; and
  6. sealing the List Price Summary, the 3475 Landmark Offer Summary, the 3475 APS and the Amending agreement, pending the closing of the 3475 Transaction.

A motion will be heard on April 9, 2014.

Status of File as of January 9, 2014

On January 8, 2014, the Court granted an order lifting the stay of proceedings in favour of Comstock for the limited purpose of permitting AMEC Americas Limited (“AMEC”) to proceed with a motion in the New Brunswick Court of Queen’s Bench Action, Court file Number C/S.404/1 to dismiss Comstock’s action against AMEC or in the alternative, with a motion for an order for additional security for costs to increase the present security to 75% of projected costs, which order may be granted as against Comstock for the purpose of protecting AMEC’s ability to effect payment to AMEC under the existing security for costs.

Status of File as of December 16, 2013

On December 16, 2013, in accordance with the Approval and Vesting Order granted by the Court on December 13, 2013, Comstock filed Articles of Amendment pursuant to section 171 (3) of the Business Corporations Act (Ontario) changing the corporate name of Comstock to 923451 Ontario Limited.

Status of File as of December 13, 2013

On December 13, 2013, the Monitor filed a second Supplemental Report to its Eighth Report to provide the Court with a summary of the further amendments to the asset purchase agreement (the “APA”) between HB Construction Company Ltd. (carrying on business in the Province of British Columbia under its assumed name, HBBC Construction Company Ltd.) (the “Purchaser”), Comstock and CCL Realty Inc..

Also on December 13, 2013, the Court granted orders:

  1. approving the APA between the Purchaser, Comstock and CCL Realty Inc;
  2. approving the sealing of the Confidential Appendix “I” to the Monitor’s Eighth Report to Court;
  3. authorizing and directing counsel for the Comstock Group, Gowlings Lafleur Henderson LLP (“Gowlings”), to pay to Bank of Montreal (“BMO”), the proceeds from the sale of the Sudbury Property, which proceeds are currently held in trust by Gowlings; and
  4. authorizing and directing the Monitor to pay BMO the amount of $5,000 currently held in trust by the Monitor to BMO to reduce the Pre-Filing Indebtedness owing to BMO.

Status of File as of December 12, 2013

On December 12, 2013, the Court approved an order:

  1. extending the Stay Period, as defined in paragraph 22 of the Amended and Restated Initial Order dated July 9, 2013 to and including Monday, June 30, 2014;
  2. approving the Monitor’s Ninth Report and the Supplemental Report and the activities of the Monitor as described therein; and
  3. approving the Amendment to the Cost Reimbursement Agreement between Comstock and PCL Constructors Canada Inc. dated December 9, 2013.

Also on December 12, 2013 the Court issues an endorsement adjourning the AMEC motion to lift the stay of proceedings to January 8, 2013.

Status of File as of December 11, 2013

On December 10, 2013, the Monitor filed a Supplemental Report to its Ninth Report to;

  1. provide the Court with a summary of the proposed amendments to the cost reimbursement agreement (the “CRA”) between PCL Constructors Canada Inc. and Comstock; and
  2. recommend that the Court issue an order approving the agreement to amend the CRA.

The Applicants will be seeking approval of the amendments to the CRA at the motion returnable on December 12, 2013.

Status of File as of December 9, 2013

On December 9, 2013, the Monitor filed a Supplemental Report to its Eighth Report (the “Supplemental Report”) to provide the Court with a summary of the following:

  1. the amendments to the asset purchase agreement (the “APA”) between HB Construction Company Ltd. (carrying on business in the Province of British Columbia under its assumed name, HBBC Construction Company Ltd.) (the “Purchaser”), Comstock and CCL Realty;
  2. the Monitor’s views on paragraph 11 of the draft Approval and Vesting Order, as defined in the Supplemental Report, included in Comstock’s motion record returnable December 9, 2013; and
  3. additional information on the APA.

The Monitor’s Supplemental Report also recommends that the Court issue an order approving the APA, as amended by the amending agreement between the Purchaser, Comstock and CCL Realty.

Status of File as of December 6, 2013

On December 6, 2013, the Monitor filed its Ninth Report to Court to:

  1. Provide the Court with a summary of the following:
    1. the Monitor’s activities since the date of the Approval and Vesting Order; and
    2. the Monitor’s views on the extension of the stay of proceedings.
  2. Recommend that the Court issue an order;
    1. approving the activities of the Monitor as set out in the Ninth report; and
    2. approving and granting the extension of the stay of proceedings to and including June 30, 2014.

Status of File as of December 5, 2013

On December 12, 2013, the Applicants will make a motion for an Order extending the stay of proceedings up to and including Monday, June 30, 2014 and approving the Monitor’s Ninth Report to Court.

Status of File as of December 4, 2013

On December 3, 2013, the Monitor filed its Eighth Report to Court to:

  1. provide the Court with a summary of the following:
    1. the results of the sales and investor solicitation process (“SISP”) and the proposed sale agreement (the “APA”) between HB Construction Company Ltd. (the “Purchaser”), Comstock and CCL Realty; and
    2. the completion of the sale of the Sudbury Property; and
  2. recommend that the Court issue the following orders:
    1. an order approving the APA and authorizing the proposed sale transaction contemplated under the APA.
    2. an order authorizing and directing the Monitor to pay to BMO the amount of $5,000.00 currently being held in trust by the Monitor, to be applied to reduce the Pre-Filing Indebtedness and directing counsel to the Companies, Gowling Lafleur Henderson LLP (“Gowlings”) to pay to BMO the amount of $469,884.80 currently being held in trust by Gowlings, to be applied to reduce the Pre-Filing Indebtedness.

On December 4, 2013, the Applicants filed an amended notice of motion for the hearing on December 9, 2013, for an Approval and Vesting Order and a Distribution Order, amending the motion to include an order:

  1. approving the Eighth Report and actions and activities of the Monitor;
  2. sealing the Sale Agreement to be appended as a Confidential Appendix to the Monitor’s Eighth Report to Court;
  3. Authorizing and directing the Monitor to pay to BMO the amount of $5,000 currently being held in trust by the Monitor; and
  4. Authorizing and directing counsel for the Comstock Group, Gowlings, to pay to BMO the proceeds from the sale of the Sudbury Property, which proceeds are currently held in trust by Gowlings.

Status of File as of December 3, 2013

On December 2, 2013, the Monitor filed its Seventh Report to Court to assist the Court in considering the I.W. Kuhn Environmental Ltd. and I.W. Kuhn Environmental Corp motion and the Enbridge Inc. (collectively referred to as the “Lien Claimants”) motion filed November 28, 2013. Copies of the two motions can be found under the Motion Materials section.

As the Lien Claimants collectively agreed to their respective lien rights and amounts owing, a consent endorsement was obtained in connection with this matter. A copy of the endorsement is posted in the Orders section of the website.

Status of File as of November 29, 2013

On November 29, 2013, the Applicants filed a motion for an order:

  1. Approving the sale transaction contemplated by an Agreement of Purchase and Sale (the “Sale Agreement”) as between Comstock and CCL Realty (the “Sellers”), and HB Construction Company Ltd. (the “Purchaser”), dated November 28, 2013;
  2. Vesting in the Purchaser the Sellers right, title and interest in and to the property and assets as described in the Sale Agreement;
  3. Sealing the Sale Agreement to be appended as a Confidential Appendix to the Seventh Report to Court of the Monitor; and
  4. Approving the Seventh Report and the actions and activities of the Monitor.

A motion will be heard on December 9, 2013.

On November 29, 2013, the Court approved an order amending the Cost Reimbursement Agreement made between Comstock and Rio Tinto Alcan Inc.

Status of File as of November 28, 2013

On November 27, 2013, the Applicants filed a Notice of Motion for an order approving the Amendment to Cost Reimbursement Agreement dated November 26, 2013, made between Comstock and Rio Tinto Alcan Inc.

Status of File as of October 30, 2013

On October 29, 2013, the Applicants filed a Notice of Motion for an Order directing Refac Industrial Contractors Inc. (“Refac”) to comply with the order of the Honourable Mr. Justice Morawetz dated July 26, 2013, which, inter alia, declared Refac to be a critical supplier and to supply Comstock with the quality assurance documents required under their contract with Comstock. The motion was to be heard on November 1, 2013 and was adjourned.

The Refac matter is now pending resolution outside of Court.

Status of File as of October 16, 2013

On October 15, 2013, the Court issued orders approving the PCL Cost Reimbursement Agreement and the 177 Cost Reimbursement Agreement.

The motion for the injunction restraining Trotter and Morton Limited, or any of its affiliates, including Whaler Industrial Contracting, from employing Mr. West was adjourned until Friday, October 18, 2013.

Status of File as of October 15, 2013

On October 11, 2013, the Monitor filed its Sixth Report to Court to assist the Court in considering the Companies’ motion to approve the Companies’ cost reimbursement agreements with PCL (the “PCL Cost Reimbursement Agreement”) and 1776501 Alberta Ltd. (the “177 Cost Reimbursement Agreement”), an indirect subsidiary of Williams. A motion will be heard on October 15, 2013.

At the same time, the Applicants will make a motion for an Order for a permanent, mandatory, or interlocutory injunction restraining Trotter and Morton Limited, or any of its affiliates, including Whaler Industrial Contracting, from employing Mr. West Hildebrand and that any employment agreement already entered into is void and of no force or effect and for Comstock’s costs of this motion on a substantial indemnity basis.

Status of File as of October 7, 2013

On October 4, 2013, the Court issued an Order ordering that, among other things:

  1. The DIP Lender is authorized and empowered to set off any amounts in the BMO Accounts against the obligations of the Applicants to the DIP Lender under the Commitment Letter, the Definitive Documents and the DIP Lender’s Charge, other than the amount of $750,000, which shall be paid to the Monitor for the benefit of the beneficiaries of the Administration Charge;
  2. The DIP Lender shall retain in the BMO Accounts the amount of $220,000 pending determination of the priority of the claims of certain employees of the International Brotherhood of Electrical Workers Construction Council of Canada;
  3. The Applicants are authorized and empowered to carry on business to the limited extent necessary to perform its obligations under the contracts (collectively, the “Ongoing Contracts”) entered into with Rio Tinto Alcan Inc. (“Rio Tinto”), PCL Constructors Canada Ltd. (“PCL”) in respect of the St. Joseph’s Hamilton Healthcare West 5th Campus Redevelopment Project and certain contracts that are subject to a proposed transaction with an indirect subsidiary of The Williams Companies (“Williams”);
  4. The Applicants shall not continue to perform its obligations under its construction contracts without the consent of the Monitor;
  5. Any and all costs from the date of the Order associated with the Applicants’ performance of the Ongoing Contracts shall be funded by Rio Tinto, PCL and Williams into separate, segregated trust accounts in the name of the Monitor (the “Ongoing Contracts Accounts”) by no later than Wednesday, October 9, 2013 or such later date as the Monitor may agree;
  6. Nothing in the Order shall, in and of itself, cause an employer/employee relationship to be formed between PCL and Rio Tinto and any employee of the Applicants;
  7. Funding by PCL shall not constitute PCL to be the employer, successor employer or related employer of the employees of the Applicants;
  8. The Monitor is fully and exclusively authorized and empowered to take any and all actions and steps, and execute any and all documents and writings, on behalf, and in the name of the Applicants or any of them in order to facilitate the performance of the Ongoing Contracts by the Applicants;
  9. The Monitor is authorized and empowered to operate on behalf of the Applicants any of the Applicants’ existing accounts at any financial institution;
  10. All employees of the Applicants shall remain the employees of the Applicants until such time as the Monitor, on the Applicants’ behalf, may terminate the employment of such employees;
  11. The Monitor is empowered and authorized to act at once in respect of the Residual Assets;
  12. The Monitor and counsel to the Monitor shall be paid their reasonable fees and disbursements in connection with realizing upon the Residual Assets;
  13. The fees of counsel for the Directors, incurred from and after the date hereof, shall not be eligible for the protection of the Administration Charge; and
  14. The Amended Cost Reimbursement Agreement (the “ACRA”) between Comstock and Rio Tinto is approved, ratified and confirmed and the execution of the ACRA by Comstock is authorized and approved.

A copy of the complete order and endorsement is posted under the Orders tab.

Status of File as of October 4, 2013

On October 4, 2013, the Monitor filed its Fifth Report to Court to update the Court, at a summary and high level, as to the outcome of negotiations and discussions which have followed the hearing on October 2, 2013.

Status of File as of October 3, 2013

On October 2, 2013, Justice Newbould issued an endorsement with regards to the motion of BMO to freeze the bank accounts so that it may exercise its set off rights. The money now held by BMO is frozen until the return of BMO’s motion to appoint a receiver to be heard on Friday, October 5, 2013, except to the extent of payroll due before then in the approximate amount of $750,000, and except as may be agreed by BMO and the Monitor.

Status of File as of October 2, 2013

On October 2, 2013, the Bank of Montreal (“BMO” or the “Bank”) will make a motion for:

  1. an interim order prohibiting Comstock from using or otherwise dealing with its collected accounts receivable or other receipts and from paying any accounts payable or other obligations of any of the Applicants without the consent of the Monitor and BMO until the Bank’s motion for the appointment of a receiver is heard by the Court;
  2. an interim order authorizing the Bank to freeze the BMO Accounts until the Bank’s motion for the appointment of a receiver is heard by the Court; and
  3. an order appointing PricewaterhouseCoopers Inc. as receiver of the property, assets and undertakings of the applicants.

Status of File as of September 25, 2013

On September 24, 2013, the Court approved orders approving, recognizing and vesting title in certain lands (the “Belisle Property”), amending and restating the Initial Order as detailed in the September 20, 2013 status update below and approving activities and conduct of the Monitor as set out in its Fourth Report.

Status of File as of September 20, 2013

On September 20, 2013, the Monitor filed its Fourth Report to the Court (“Fourth Report”)

  1. to provide the Court with a summary of the following:
    1. An update on the activities of the Companies and the Monitor activities since the date of the Third Report;
    2. The Companies’ cash flow forecast for the period from September 4 to December 13, 2013;
    3. A summary of Comstock’s contracts as at September 16, 2013;
    4. An update on the Hospital for Sick Children project;
    5. An update on the Winnipeg Women’s Hospital project;
    6. An update on the St. Joseph’s Project;
    7. An update on the Monitor retaining Altus Group Limited as a mechanical and electrical engineering advisor to the Monitor;
    8. An update on the SISP; and
    9. An update on the Sudbury Property and Sale Agreement.
  2. to recommend that the Court issue the following orders:
    1. An order approving, recognizing and vesting title in certain lands to R.F. Walker Holdings Inc. pursuant to an Agreement of Purchase and Sale between Comstock and R. F. Walker Holdings Inc. made as of September 16, 2013; and
    2. An order amending and restating the Initial Order to clarify that paragraph 12(c) thereof is intended to apply to all pre-filing project payables.

A motion will be heard on September 24, 2013.

Status of File as of August 23, 2013

On August 23, 2013, the Court adjourned the motion until September 6, 2013. The CNRL matter was resolved outside of Court. The Endorsement of Justice Morawetz dated September 16, 2013, withdrawing the motion is posted on the website under the Orders section.

Status of File as of August 22, 2013

On August 21, 2013, the Applicants filed a motion for an Order:

  1. Directing Canadian Natural Resources Limited (“CNRL”) to pay to Comstock all amounts owing to Comstock and its suppliers and subtrades as set out in the invoices issued, or to be issued in the future, to CNRL by Comstock for goods, aterials, and/or services rendered before June 28, 2013 (the “Pre-Filing Invoiced Amounts”) by Comstock and/or its suppliers and/or its subcontractors in respect of the CWP Building and the Tailing Plant;
  2. Directing CNRL to pay to Comstock all amounts owing to Comstock as set out in the invoices issued, or to be issued in the future, to CNRL by Comstock for goods, materials, and or services rendered on or after June 28, 2013 (the “Post-Filing Invoiced Amounts”) by Comstock and/or its suppliers and/or its subcontractors in respect of the CWP Building and the Tailing Plant;
  3. Directing CNRL to forthwith pay to the Monitor all amounts owing to Comstock and its suppliers and subtrades in respect of notice holdback and statutory holdback;
  4. Staying CNRL from applying set-off to the Pre-Filing Invoiced Amounts, Post-Filing Invoiced Amounts, and holdback, subject to further Order of the Court;
  5. Restraining CNRL from discontinuing, altering, interfering with, or terminating any and all agreement(s) with Comstock and/or Comstock’s suppliers and/or subcontractors in respect of the CWP Building and the Tailing Plant;
  6. Approving the Fourth Report to Court of the Court-appointed Monitor of the Comstock Group and the actions and activities of the Monitor; and
  7. Granting Comstock its costs of this motion on a full indemnity basis.

The motion will be heard on August 23, 2013.

Status of File as of August 8, 2013

On August 6, 2013, the Monitor filed its Third Report with the Court (the “Third Report”) to provide the Court with information relating to:

  • the Monitor’s activities since the date of the Initial Order;
  • the Company’s July 27, 2013 Revised Forecast (as defined in the Third Report) for the period July 27, 2013 to October 25, 2013;
  • a summary of contracts Comstock has abandoned and/or contracts under review to determine financial viability as at August 5, 2013 (the “August 5 Contract Summary”);
  • a summary of the proposed lien regularization process (the “Lien Regularization Process”);
  • a summary of the proposed expedited Sale and Investor Solicitation Process (the “SISP”);
  • the Monitor’s comments and observations regarding the SISP; and
  • the Monitor’s views on the requested extension of the stay of proceedings.

The Third Report also provided the Court with the Monitor’s recommendations with respect to the Applicants’ motion seeking an order from the Court to, among other things:

  • approve the Monitor’s Third Report and the actions and activities of the Monitor described therein;
  • approve the SISP as described in the Affidavit of Dennis Forlin and the Third Report;
  • authorize the Monitor and the Comstock Group to carry out the SISP;
  • approve the Lien Regularization Process;
  • extend the stay of proceedings defined as the Stay Period in the Amended & Restated Initial Order, in respect of the Comstock Group to and including December 17, 2013; and
  • approve the Monitor’s Statement of Receipts and Disbursements appended to the Third Report.

The motion was heard on August 7, 2013 and the aforementioned orders were granted by the Court.

Status of File as of August 1, 2013

On August 1, 2013, the Monitor filed its Second Report with the Court with respect to the adjourned motion relating to the relief sought by the Dissenting Lien Claimants.

Status of File as of July 31, 2013

On July 25, 2013, the Monitor prepared its First Report to Court to assist the Court in considering the Companies’ motion to:

  • approve the Settlement Agreement made between the Companies, PCL Constructor Canada Inc., Honeywell Limited, Class 1 Incorporated, Sonepar Canada Inc., Anixter Canada Inc., 4361814 Canada Inc. c.o.b. as Nobel Trade, NCS International Inc., Rexel Canada Electrical Inc., and United Rentals of Canada Inc., dated July 25, 2013, in respect of the St. Joseph’s Hamilton Healthcare West 5th Campus Redevelopment Project; and
  • amend the Initial Order to remedy any ambiguity that the stay of proceedings provided for in the Initial Order prevents any construction lien or trust claimant from registering any lien against any party in connection with any amounts owing to it by any of the Companies, and permit any such registrations to be discharged or vacated as appropriate.

On July 26, 2013, the aforementioned orders were granted by the Court. Also on July 26, 2013, the Court granted the following orders to:

  • declare Refac Industrial Contractors Inc. a critical supplier;
  • discharge certain liens, as listed in paragraph 1, of the order, and declaring that certain lien bonds, as listed in paragraph 2 of the order, having been paid into Court by PCL Constructors Canada Inc. to vacate certain claims for lien, be delivered up to Osler, Hoskin & Harcourt LLP, in trust, for cancellation.

In response to the Applicants’ motion of June 26, 2013, Cofely Adelt Ltd., Rexel Canada Electrical Inc., 4361814 Canada Inc. c.o.b. as Noble Trade, Class 1 Incorporated, Emco Corporation and NCS International Co. (collectively the “Dissenting Lien Claimants”) brought a motion seeking to oppose certain of the relief sought by the Applicants. In view of the opposition from the Dissenting Lien Claimants in respect of certain relief sought by the Applicants, Justice Morawetz adjourned the remainder of the Applicants’ motion and the motion of the Dissenting Lien Claimants to be heard on August 1, 2013.

Status of File as of July 26, 2013

On July 25, 2013, the Monitor prepared its First Report to Court to assist the Court in considering the Companies’ motion to:

  • approve the Settlement Agreement made between the Companies, PCL Constructor Canada Inc., Honeywell Limited, Class 1 Incorporated, Sonepar Canada Inc., Anixter Canada Inc., 4361814 Canada Inc. c.o.b. as Nobel Trade, NCS International Inc., Rexel Canada Electrical Inc., and United Rentals of Canada Inc., dated July 25, 2013, in respect of the St. Joseph’s Hamilton Healthcare West 5th Campus Redevelopment Project; and
  • amend the Initial Order to remedy any ambiguity that the stay of proceedings provided for in the Initial Order prevents any construction lien or trust claimant from registering any lien against any party in connection with any amounts owing to it by any of the Companies, and permit any such registrations to be discharged or vacated as appropriate.

This Web site will be updated as information becomes available.

For more information, please contact: Sara de Verneuil, Telephone: +1 416 815 5010, +1 855 447 4044 toll free, Fax: +1 416 814 3219, or via Email.