33 Yorkville Residences Inc. and 33 Yorkville Residences Limited Partnership (Cresford Group)

Receivership

^{Page last updated: May 11, 2021}

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 March 27, 2020 (the “Date of Appointment”), pursuant to an order (the “Receivership Order”) of the Ontario Superior Court of Justice (Commercial List) (the “Court”), PricewaterhouseCoopers Inc., LIT (“PwC”) was appointed as receiver and manager (the “Receiver”), without security, of all of the assets, undertakings and properties (the “Property”) of 33 Yorkville Residences Inc. and 33 Yorkville Residences Limited Partnership (collectively the “Companies”) acquired for, or used in relation to a business carried on by the Companies, or either of them, including, without limitation, the real property known municipally as 33 Yorkville Avenue, Toronto, ON, 27-37 Yorkville Avenue, Toronto, ON and 26-50 Cumberland Street, Toronto, ON (together referred to as “33 Yorkville” or the “Real Property”), pursuant to section 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended (the “BIA”) and section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended. The Receivership Order was granted pursuant to an application made by bcIMC Construction Fund Corporation and Otéra Capital Inc. (collectively, the “Applicants”).

In accordance with the provisions of the BIA, a Notice and Statement of the Receiver (the “Notice”) will be sent to all known creditors of the Companies. A copy of the Notice will be posted on the “Notices” page of this website.

Please note that PwC has only been appointed as Receiver over the companies responsible for the 33 Yorkville, Clover and Halo projects.  Other Cresford Group entities are not included in this receivership. If your query relates to any other of the Cresford Group projects or entities, please contact your normal Cresford contacts.  

To view information on Clover and Halo projects, please click here.

Status of File as of April 7, 2021

On April 7, 2021, the Court issued an order (the “Deposit Return Procedure Order”) which, among other things:

1. Approved the Deposit Claims Process for the identification, quantification, and resolution of claims for the return of deposits to Pre-Sale Purchasers in the 33 Yorkville project;

2. Authorized and directed the Receiver to make an interim distribution or distributions to Westmount, as set out in the Sixth Report, subject to any necessary or desirable reserves as determined by the Receiver;

3. Approved the fees and disbursements of the Receiver and its counsel; and

4. Approved the activities of the Receiver as described in the Sixth Report.

Status of File as of March 30, 2021

On March 30, 2021, the Receiver filed its motion with the Court for an order (the “Deposit Return Procedure Order”) to among other things:

1. Approve a procedure (the “Deposit Claims Process”) for the identification, quantification, and resolution of claims for the return of deposits to certain purchasers of pre-construction units in the 33 Yorkville project (the “Pre-Sale Purchasers”);
2. Authorize and direct the Receiver to make an interim distribution or distributions to Westmount, as set out in the Sixth Report (as defined below), subject to any necessary or desirable reserves as determined by the Receiver;
3. Approve the fees and disbursements of the Receiver and its counsel; and
4. Approve the activities of the Receiver as described in the Sixth Report of the Receiver, dated March 30, 2021 (the “Sixth Report”).

On the same date, the Receiver filed its Sixth Report with the Court to provide information to the Court with respect to:

1. The Receiver’s activities since the Fifth Report to date;
2. The cumulative receipts and disbursements in the receivership proceedings since the Date of Appointment; and
3. The Receiver’s motion in connection to the Deposit Return Procedure Order.

The motion will be heard on April 7, 2021.

Status of File as of March 4, 2021

On March 4, 2021, the Receiver filed its motion with the Court for

1. An order (the “Approval and Vesting Order”) to, among other things:
   • Approve the Transaction between the Receiver and PEM (Yorkville) Holdings Inc. (the “Purchaser”);
   • Vesting in the Purchaser 33 Yorkville’s right, title, and interest in and to the Purchased Assets as defined in the APS (the “Purchased Assets”) pursuant to the terms of the Transaction free and clear of encumbrances;
   • Terminate the existing agreements of purchase and sale for pre-sale condominium units with pre-sale purchasers (the “Pre-Sale Agreements”) on the closing of the Transaction; and
   • Sealing Confidential Appendix “B” to the Fifth Report of the Receiver, dated March 4, 2021 (the “Fifth Report”), from the public record, until the closing of the Transaction or further order of this court; and
2. An order (the “Priority Claims Procedure Order”) to, among other things, approve a limited claims process (the “Priority Claims Procedure”) to identify claims against the Companies that are secured or rank in priority to the claims of the Secured Lenders (as defined in the Priority Claims Procedure Order”);
3. An order (the “Interim Distribution and Receiver’s Borrowings Order”) to, among other things:
   • Authorize and direct the Receiver to make an interim distribution or distributions to BCIMC Construction Fund Corporation (“BCI”), Otéra Capital Inc. (“Otéra”) and KingSett Mortgage Corporation (“KingSett”) (together, the “Secured Lenders”) respectively, promptly after April 12, 2021;
   • Increase the principal amount the Receiver is authorized to borrow as secured by the Receiver’s Borrowing Charge from $12,000,000 to $14,000,000; and
   • Approving the Fifth Report (as defined below) and the activities of the Receiver described therein.

On the same date, the Receiver filed its Fifth Report (the “Fifth Report”) to provide the Court with the information concerning:

1. The Receiver’s activities since the Fourth Report to the date of the Fifth Report;
2. The cumulative receipts and disbursements in the Receivership Proceedings since the Date of Appointment; and
3. The activities completed in the SISP and the status of the Transaction with PEM pursuant to the APS; and
4. The Receiver’s motion for the Approval and Vesting Order, the Priority Claims Procedure Order and the Interim Distribution and Receiver’s Borrowings Order as described above.

The motion will be heard on March 11, 2021.

Status of File as of December 11, 2020

On December 11, 2020, the Receiver filed a motion for an order (the “Supplemental SISP Order”) to, among other things:

1. Approve the Fourth Report (the “Fourth Report”) of the Receiver, dated December 10, 2020, and the activities described therein;
2. Authorize the Receiver to enter into a definitive agreement of purchase and sale (as amended, the “APS”), with PEM (Yorkville) Holdings Inc. (the “Proposed Successful Bidder” with its bid being the “Proposed Successful Bid”) and authorize the Receiver to take such steps it considers necessary or desirable to complete the transaction described in the APS;
3. Deem the Proposed Successful Bid a Qualified Bid for the purposes of the SISP attached as Schedule “A” to the SISP Approval Order, dated June 4th, 2020;
4. Deem that the deposit paid by the Proposed Successful Bidder pursuant to the APS will be governed by the provisions of the APS and will not be subject to any provisions of the SISP, including paragraphs 40 and 41 of the SISP; and
5. Deem that in the case of any conflict or inconsistency between provisions of the SISP and the provisions of the APS, the provisions of the APS shall govern in all respects provided that the APS shall remain subject to court approval pursuant to an Approval and Vesting Order (to be granted).

On December 10, 2020, the Receiver filed its Fourth Report with the Court to provide the Court of the information with respect to:

1. The Receiver’s activities between the date of the Third Report and the date of this Fourth Report;
2. The cumulative receipts and disbursements in the Receivership Proceedings since the Date of Appointment;
3. The status of the Transaction pursuant to the APS; and,
4. The Receiver’s motion for the Supplemental SISP Order.

The motion will be heard on December 16, 2020.

Status of File as of November 17, 2020

A motion for an Approval and Vesting Order or alternative relief, scheduled to be heard December 16, 2020 at 10:00am via Zoom.

Status of File as of October 9, 2020

On October 9, 2020, the Court issued an order (the “Approval of Receiver Activities, Increase Receiver Borrowings, Sealing Order”) which, among other things:

1. Approved the Third Report and the Supplement to the Third Report of the Receiver and the activities of the Receiver described therein;
2. Approved the increase in the principal amount the Receiver is authorized to borrow as secured by the Receiver’s Borrowing Charge from $5,500,000 to $12,000,000;
3. Sealed the Confidential Appendix B to the Receiver’s Third Report; and
4. Adjourned the hearing of the amendments to the SISP to a date to be scheduled.

Status of File as of October 8, 2020

On October 8, 2020, the Receiver filed a Supplement to the Third Report (the “Supplement to the Third Report”) to provide the Court with an update on the status of the SISP and propose changes for the Receiver’s requested motion for the Supplemental SISP Order. In particular, the Receiver will not seek relief relating to the APS.

The motion for the Supplemental SISP Order will be heard on October 9, 2020.

Status of File as of September 4, 2020

On September 3, 2020, the Receiver filed its motion with the Court for an order (the “Supplemental SISP Order”) to, among other things:

1. Approved the Third Report (defined below) of the Receiver;
2. Increase the principal amount the Receiver is authorized to borrow as secured by the Receiver’s Borrowing Charge from $5,500,000 to $12,000,000;
3. Seal the Confidential Appendix B of the Third Report until the further order of the Court, or until the APS (as defined below) is served publicly pursuant to a motion  for an Approval and Vesting Order or until further order of this Court;
4. Authorize the Receiver to enter into a definitive agreement of purchase and sale (the “APS”) with PEM (Yorkville) Holdings Inc. (the “Proposed Successful Bidder” with its bid being the “Proposed Successful Bid”) and authorize the Receiver to take such steps it considers necessary or desirable to complete the transaction described in the APS;
5. Deem the Proposed Successful Bid a Qualified Bid for the purposes of the SISP;
6. Deem that the deposit paid by the Proposed Successful Bidder pursuant to the APS will be governed by the provisions of the APS and will not be subject to any provisions of the SISP, including paragraphs 40 and 41 of the SISP; and
7. Deem that in the case of any conflict or inconsistency between provisions of the SISP and the provisions of the APS, the provisions of the APS shall govern in all respects provided that the APS shall remain subject to court approval pursuant to an Approval and Vesting Order.

On the same date the Receiver filed its Third Report (the “Third Report”) with the Court to provide the Court with the information with respect to:

1. The Receiver’s activities since the Second Report;
2. The cumulative receipts and disbursements in the Receivership Proceedings since the Date of Appointment;
3. The Receiver’s motion to request an increase the Receiver’s Borrowing Charge from $5.5 million to $12 million; and
4. The status of the SISP and the Receiver’s motion to authorize the Receiver to enter into the APS with the Proposed Successful Bidder and to supplement the SISP as required by the APS.

The motion’s date has not been fixed yet.

Status of File as of June 5, 2020

On June 4, 2020, the Court issued the Sale Approval Order, which approved the SISP (as summarized in Schedule A to the Sale Approval Order). Further information relating to the SISP can be found on the “SISP” page of this website.

Status of File as of May 25, 2020

On May 25, 2020, the Receiver filed its Second Report (the “Second Report”) with the Court to provide the Court with the information with respect to:

1. The Receiver’s activities since the First Report, to the date of this Second Report; and,
2. The Receiver’s motion to request the approval for the proposed Sale and Investor Solicitation Process (the “SISP”).

The motion for an order to approve the SISP will be heard on June 4, 2020 and the Receiver will seek an order (the “Sale Approval Order”), to among other things: 

1. Approve the SISP (as summarized in Schedule A to the Sale Approval Order);
2. Authorize and direct the Receiver and the Broker (as defined in the SISP) to implement the SISP and perform their respective obligations, including all things that are reasonably necessary or desirable to carry out and give full effect to the SISP;
3. Declaring that neither the Receiver nor the Broker shall have any liability whatsoever to any person or party for any act or omission related to the SISP, except to the extent such act or omission is the result of gross negligence or wilful misconduct of the Receiver or Broker;
4. Declaring that, to the extent desirable in furtherance of the SISP, the Receiver may disclose personal information to prospective purchasers or bidders and to their advisors, and in so doing will not be in violation of the Personal Information Protection and Electronic Documents Act; and
5. Approving the First Report of the Receiver, dated May 10, 2020, the Supplementary Report to the First Report of the Receiver, dated May 14, 2020 and the Second Report of the Receiver dated May 25, 2020.

Status of File as of May 19, 2020

On May 15, 2020, the Court issued the Receiver’s Borrowing Order, which among other things, approved the increase of the Receiver’s Borrowings Charge from $2,000,000.00 to $5,500,000.00 and the rate from 5% to 8% plus a 1% advance fee for all additional advances in excess of the originally approved amount.

Status of File as of May 15, 2020

On May 14, 2020, the Receiver filed a supplementary motion for the Receiver’s Borrowing Order, including a Supplementary Report to the First Report (the “Supplementary Report”), to be read in conjunction with the Receiver’s First Report, the purpose of which was to provide the Court with an update on:

1. The Work (defined in the Supplementary Report) required to secure and safeguard the Property; and,
2. Provide an update on the need for an increase to the maximum amount of the Receiver’s borrowings.

The motion will be heard on May 15, 2020.

Status of File as of May 13, 2020

The motion for the Receiver’s Borrowing Order has been rescheduled to May 15, 2020.

Status of File as of May 11, 2020

On May 10, 2020, the Receiver filed a motion with the Court for an order (the “Receiver’s Borrowing Order”) to, among other things, increase the Receiver’s Borrowings Charge (as defined in paragraph 22 of the Receivership Order) from $2,000,000.00 to $5,500,000.00 and increase the rate from 5% to 8% plus a 1% advance fee for all additional advances in excess of the originally approved amount.

On the same date, the Receiver filed its First Report (the “First Report”) with the Court to provide the Court with the information with respect to:

1. The Receiver’s activities from the date of appointment to the date of the First Report;
2. The receipts and disbursements for the receivership proceedings; and
3. The Receiver’s motion for the Receiver’s Borrowing Order.

The motion will be heard on May 14, 2020.