In Re Canadian Red Cross Society, the Ontario Superior Court
relied heavily on the Alberta Court of Appeal decision in Re
Blue Range Resources in addressing questions of jurisdiction
relating to the late or irregular filing of claims in a CCAA
proceeding. This case was part of a lengthy CCAA process which
arose from the tainted blood tragedy of 1998.
The process involved the creation of a trust to satisfy damage
claims of victims infected with HIV, Hepatitis C, and
Creutzfeld-Jacob Disease. A claims submission process was drafted
into the Plan of Compromise with a Plan Implementation Date of
October 5, 2001. A Trustee and a Referee were appointed to moderate
claims, which were to be submitted to the Referee within four
months of the Plan Implementation Date.
As of September 29, 2008, no distributions had been made from
the trust in favour of the HIV claimants; the four-month claims
period expired on February 5, 2002. Eighty-nine infected persons
filed claims before the Claims Bar Date, and the Trustee sought
direction from the Court regarding an additional 38 claims that
were submitted either late or in an irregular manner. The
particular issue with which the Trustee was concerned was whether
the Court has the jurisdiction to either extend or relieve the
deadline imposed in the Plan.
The Court confirmed that it held a basic supervisory
jurisdiction over the administration of the trust and over the CCAA
proceedings generally. Looking at the particular application of
this jurisdiction in cases of late or irregular filing of claims,
the Court considered Re Blue Range Resources Corp., 
A.J. No. 1232 (C.A.) to be most influential. The Court, in
particular, adopted the criteria set out by Honourable Justice
Wittmann to be applied when considering whether or not to accept
late claims, including the determination of good faith in the
claimant's delay, any relevant prejudice stemming therefrom,
the potential for alleviation of any such prejudice, and other
factors warranting late filing.
Blue Range Resources has been variously cited for the
Court's recognition of the equitable jurisdiction to extend
relief in individual cases to those failing to file their claims in
time. Re Red Cross Society noted various cases that have
followed the Blue Range precedent. However, the Court in
Re Red Cross Society found further guidance in Blue Range,
citing that it was implicitly intended in that case that a
Plan be read, not as ousting a Court's equitable jurisdiction
to relieve against late claims, but as being subject to it. This
implied authority could have far reaching consequences for loosely
or ambiguously worded provisions.
The Plan in Re Red Cross Society provided that the
surplus from the HIV trust should be paid to the HCV trust
following the disposition of claims filed within the four month
claim period. It was argued that this provision intended the
closure of claims at the Claims Bar Date as indicated by the
payment over of the surplus. This seems a fairly clearly worded
provision, but, as being subject to the equitable jurisdiction of
the Court it was not read that way. The Court cited Wittmann J.A.
It necessarily follows that a claims bar order and its schedule
should not purport to "forever bar" a claim without a
saving provision. That saving provision could be simply worded with
a proviso such as "without leave of the court", which
appears to be not only what was contemplated but what in fact
The Court ultimately found that the Claims Bar Date should be
extended and that late claims should be considered by the Trustee
and Referee in reference to the Court's particular
recommendations for inclusion. The Court stressed that the exercise
of such jurisdiction should be sparing, and in each case will be
heavily fact dependant.
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