For the time being, therefore, the framework developed by the
Supreme Court of Canada in Newfoundland and Labrador v. AbitibiBowater
Inc. will continue to be the binding precedent on Canadian
courts applying the Companies' Creditors Arrangement
Act (CCAA). As such, when assessing whether a claim by the
Ministry of the Environment is a regulatory order or a monetary
claim, the determining factor will likely be whether it is possible
to attach a monetary value to the claim or obligation and, more
specifically, whether it is "sufficiently certain" that
the ministry will perform the work itself. If a regulatory agency
has no realistic alternative to performing the remediation work
required by its order itself, the order will almost certainly
constitute a provable claim that is subject to the CCAA stay of
proceedings and can be compromised in the debtor's claims
process – without disrupting the priority scheme set out in
the CCAA. Whether or not a regulatory agency has "no realistic
alternative" will be a factual inquiry in each case, and may
or may not be easily identified. The "untidy
intersection" remains, pending further court
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