



COURT OF APPEAL FOR ONTARIO

CITATION: U.S. Steel Canada Inc. (Re), 2017 ONCA 99

DATE: 20170208

DOCKET: M46908 and M46916

Strathy C.J.O., Weiler and Benotto JJ.A.

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 U.S. Steel Canada Inc.

Ken Rosenberg, Lily Harmer, Karen Jones and Robert
    Healey, for the moving party, the United Steel, Paper and Forestry, Rubber,
    Manufacturing, Energy, Allied Industrial and Service Workers International
    Union

Sharon L.C. White, for the moving party, USW Local 1005

Andrew J. Hatnay, Barbara Walancik and Amy Tang, for the
    moving party, Representative Counsel to the non-union active employees and
    retirees of U.S. Steel Canada Inc.

James Gage and Paul Steep, for the responding party,
    U.S. Steel Canada Inc.

Robert Staley, Kevin Zych, and William A. Bortolin, for
    the responding party, the Monitor, Ernst & Young Inc.

Heard: In writing

ENDORSEMENT

[1]

These motions for leave to appeal arise in the context of the ongoing
    proceedings under the
Companies Creditors Arrangement Act
,
R.S.C. 1985, c. C-36, involving U.S. Steel Canada Inc. (USSC).

[2]

In 2015, an order was made suspending the payment of certain benefits,
    referred to as OPEBs (other post-employment benefits, for example,
    prescription, dental and vision benefits) to retirees. The United Steel, Paper
    and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
    Workers International Union (USW), together with its local unions and
    representative counsel to the non-USW active and retired members, jointly
    brought a motion. They sought to have the payment of OPEBs reinstated on the
    basis that USSCs financial position had improved since the 2015 order was
    made.

[3]

The
CCAA
judge dismissed the motion on the condition that USSC
    make a one-time payment of $2.7 million towards the benefits. The moving
    parties now seek leave to appeal from that decision.

[4]

There is no dispute about the applicable test. Leave to appeal is
    granted sparingly in
CCAA
proceedings and only where there are serious
    and arguable grounds that are of real and significant interest to the parties.
    In assessing whether leave should be granted, the court must consider:

a.

whether the proposed appeal is
prima facie
meritorious
    or frivolous;

b.

whether the point on the proposed appeal is of significance to the
    practice;

c.

whether the point on the proposed appeal is of significance to the
    action; and

d.

whether the proposed appeal will unduly hinder the progress of the
    action.

See:
Nortel Networks Corporation (Re)
, 2016
    ONCA 332, 36 C.B.R. (6th) 1, at para. 34;
Nortel Networks Corporation (Re)
,
    2016 ONCA 749, at para. 6;
Stelco Inc. (Re)
(2005), 75 O.R. (3d) 5
    (C.A.), at para. 24.

[5]

In this case, the
CCAA
judge had broad discretion under s. 11.
    The test governing the exercise of that discretion is whether the order
    furthers the remedial objectives of the statute, namely, to permit the debtor
    to carry on business and avoid the social and economic consequences of
    liquidation:
Century Services Inc. v. Canada (Attorney General)
, 2010
    SCC 60, [2010] 3 S.C.R. 379, at para. 70.

[6]

It is rare that this court will interfere with a discretionary decision
    of a
CCAA
judge. In our view, there is no
prima facie
merit
    to the moving parties submission that this court should do so in this case.
    The
CCAA
judge, who has extensive familiarity with the circumstances
    of the debtor, considered the evidence before him, the submissions of the
    parties and their respective with prejudice settlement discussions. He
    carefully balanced competing considerations, including the goal of a successful
    reorganization, which would benefit all interested parties, including the moving
    parties. In the final analysis, while he refused to reinstate the payment of
    benefits to the end of 2016, he ordered that USSC make a one-time payment of
    $2.7 million towards benefits. We are not satisfied that an appeal from that
    order has any real prospect of success.

[7]

Given the fact-specific nature of the exercise of discretion in this
    case, the issue is not of significance to the insolvency practice.

[8]

In the circumstances, it is unnecessary to consider the other aspects of
    the leave test.

[9]

For these reasons, leave to appeal is denied.
    The motion is dismissed with costs to the respondent USSC, fixed at $2,500,
    inclusive of disbursements and all applicable taxes.

G.R. Strathy C.J.O.

K.M. Weiler J.A.

M.L. Benotto J.A.


