





CITATION:
Hollinger Inc. (Re) , 2011 ONCA 765



DATE: 20111205



DOCKET: M40692 (C53706)



COURT OF APPEAL FOR ONTARIO



Sharpe J.A. (In Chambers)



BETWEEN



In the Matter of the
Companies
        Creditors Arrangement Act
, R.S.C. 1985, c. C-36, As Amended



And in
          the Matter of a Proposed Plan of Compromise or Arrangement with Respect to Hollinger Inc.,
          4322525 Canada Inc. and Sugra Limited



Applicants
          (Respondents on Motion)



Earl A. Cherniak Q.C., and Jason
          Squire, for Conrad Black and Conrad Black Capital Corporation

Michael E. Barrack and Megan
          Keenberg, for Hollinger Inc.

Ronald Foerster, for Torys LLP

Matthew Fleming, for KPMG LLP

Matthew B. Lerner, for Ernst &
          Young Inc. (Monitor)



Sarah L.M. Weingarten, for
          Independent Directors



Heard: November 28, 2011



On appeal from the order of Justice Colin L. Campbell of the
          Superior Court of Justice dated February 5, 2011.



Sharpe J.A.:



[1]

Conrad Black and the Conrad Black Capital Corporation (collectively Black)
    move for a stay of proceedings relating to a sealing order granted in a
Companies
    Creditors Arrangement Act
, R.S.C. 1985, c. C-36 (CCAA) proceeding pending
    determination of Blacks application to the Supreme Court of Canada for leave
    to appeal the order of this court upholding the validity of the sealing order.

[2]

The underlying facts relating to the sealing order are fully set out in
    the reasons of this court in
Re Hollinger Inc
. 2011 ONCA 579, 107 O.R.
    (3d) 1, and need not be repeated here.

[3]

Blacks stay motion is brought pursuant to the
Supreme Court of
    Canada Act
, R.S.C., 1985, c. S-26, s. 65.1 (1):

The Court, the court appealed from or a judge of
    either of those courts may, on the request of the party who has served and
    filed a notice of application for leave to appeal, order that proceedings be
    stayed with respect to the judgment from which leave to appeal is being sought,
    on the terms deemed appropriate.

[4]

I dismiss Blacks request for a stay for the following reasons.

[5]

This is not a typical request for a stay to suspend the operation of a
    judgment of this court or to suspend the operation of the order we upheld. Rather,
    Black is asking for an order pending the approval of the settlements which gave
    rise to the sealing order being made in the CCAA proceedings.

[6]

There is some question as to whether s. 65.1(1) gives me jurisdiction to
    grant that relief, as I am not being asked to stay proceedings with respect to
    the judgment from which leave to appeal is being sought. If a judge of this
    court lacks jurisdiction to grant a stay, it still would, of course, be open to
    the CCAA judge to suspend process, as that would not interfere in any way with
    the effect of this courts judgment.

[7]

Even if I were to accept Blacks submission and interpret s. 65.1(1)
    generously so as to clothe me with necessary authority, out of deference to the
    CCAA judge, I would exercise my discretion to refuse the a stay. The CCAA judge
    is, in my view, much better placed to assess whether the interests of the
    parties and the interests would be served by granting Blacks request.

[8]

As the matter was fully argued before me, I add that in any event, it is
    my view that Black has failed to satisfy the test for a stay.

[9]

I think it unlikely that the Supreme Court of Canada will grant Black
    leave to appeal this courts judgment.  However, given the wide range of
    factors that are weighed by the Supreme Court in dealing with leave
    applications, I am not prepared to say that the leave application is frivolous
    and vexatious.

[10]

I am not persuaded, however, that Black has demonstrated that refusing
    the stay and allowing the settlement approval process to proceed would cause
    him irreparable harm. As noted at para. 14 of our sealing order decision, Black
    concedes that his attack on the sealing order rests solely on his desire to
    uphold the open court principle. He does not assert that the terms of the
    sealing order give rise to any procedural disadvantage to him in the settlement
    approval process, nor does he allege any other harm resulting from the sealing
    order. The only interest Black asserts is what Mr. Cherniak describes a
    substantive right to challenge the sealing order as a violation of the open
    court principle.

[11]

I am not persuaded that a stay of the approval process is required to
    protect that right. If no stay is granted and the settlement is approved, the
    redacted portions of the settlement agreements will be made public. Although that
    would render the proposed appeal moot, the substance of the right claimed by
    Black would not be defeated as the redacted details of the settlement would still
    be made public. On the other hand, if the settlement is not approved, it would
    still be open to Black to argue before the Supreme Court of Canada that the
    sealing order never should have been made and that the redacted portions of the
    agreements should therefore be disclosed.

[12]

Finally, it is my view that the balance of convenience does not favour a
    stay. Blacks professed concern for the open court principle must be weighed against
    the interest of all other parties in bringing the CCAA process to a timely
    conclusion. I have no hesitation in saying that I would give more weight to the
    latter.

[13]

Accordingly, the motion for a stay is dismissed with costs to the
    respondent, Hollinger Inc., fixed in the agreed amount of $3,250 plus HST.

Robert J. Sharpe J.A.

RELEASED:  December 5, 2011


