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Corporations - Arrangements. NexJ Systems Inc. (Re)
In NexJ Systems Inc. (Re) (Ont CA, 2023) the Court of Appeal considered an appeal from a corporate [CBCA s.192] non-insolvency 'arrangement'-approving order:[2] They appeal the application judge’s order approving the plan of arrangement put forward by NexJ Systems Inc. under s. 192(4) of the Canada Business Corporations Act, R.S.C. 1985, c. C-44 (“the CBCA”).
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[6] While it will not be appropriate or possible in every s. 192 application to summarily determine all issues, that decision is firmly within the discretion of the application judge. It will be up to the application judge to determine if the fair adjudication of the issues requires a trial in accordance with the required cultural shift in the civil process promulgated by the Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at paras. 2, 27-28; Re: Mid-Bowline Group Corp., 2016 ONSC 669, at paras. 47-49. Here, there was no procedural unfairness. The appellants participated fully in the application, filing several affidavits. They filed factums and made lengthy submissions.
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[8] In considering whether to approve the proposed plan of arrangement, the application judge correctly adverted to the governing criterion in issue as argued by the appellants and as articulated by the Supreme Court in BCE Inc. v. 1976 Debentureholders, 2008 SCC 79, [2008] 3 S.C.R. 69, at paras. 137-138, namely, whether the plan of arrangement was fair and reasonable, including whether it had a valid business purpose. He concluded that this criterion had been met. His conclusions are grounded in his interpretation of the 2011 agreements and the evidence from NexJ Systems that the application judge was entitled to accept.
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