Ball v, 2022 ABKB 814

Court of King’s Bench of Alberta Citation: Ball v 1979927 Alberta Ltd, 2022 ABKB 814 Date: 20221208 Docket: 1901 06890 Registry: Calgary Between: Michael Ball, Craig Ball, Ross Benedict, Paivi Blackburn, Jan Bracha, Richard Bracha, Thora Gwen Bracha (Estate Of) by Its Executor Richard Bracha, Paul Carlson, Diane Carlson (Estate Of) by its Executor Paul Carlson, Donelyn Jan Driver, Ronald Evans, Brenda Ferschweler, Barabara Fraser, 1407905 Alberta Ltd, Keith Hampton, 385321 Alberta Ltd, Rita Hampton, Danielle Hampton, Lloyd Hampton, Ryan Hampton, Kevin Hampton, Dan Hampton, Bruce Hampton, Jack Hampton, Peter Hasapes, Larry Hrabarchuck, Bonnie Ingles, Marilyn Jack, Neil Jobin, Kathleen Jost, Hugh Keith, Regan Keith, Harold Kinasewich, Rita Kinasewich, Dale Laniuk, Mark Levack, George Liaridis, Bernadette Lucki, Louie Marinakos, Ronald Nadeau, Carole Nadeau, Ohio Diagnostics LLC, Ork Holdings Corporation, Prasino Capital Management, Evan Remenda, John Ryan, Loretta Ryan, Kerry Lee Smith, Harry Clifford Smith, Tracey Tregidgo, Vinco Foods Inc, John Yannitsos, and Ernie Zacher Plaintiffs - and - 1979927 Alberta Ltd, Bradley Meadows, Christopher Morris, CIBC World Markets Inc, Fasken Martineau Dumoulin LLP, Francis McKeever, FTI Consulting Canada Inc, Jeffrey M.

Seibert, Jim Laird, John Goetz, Kyle Greene, Lowy Gunnewiek, Milan Cacic, Paul Casey, R.C. Morris & Company S.O. Debt Fund GP Ltd., R.C. Morris & Company S.O. Debt Fund G.P. II Ltd., R.C. Morris & Company S.O. Debt Fund Holdings Ltd., R.C. Morris & Company S.O. Debt Fund Ii Holdings Ltd., R.C. Morris & Company S.O. Fund III GP Ltd, R.C. Morris & Company Special Opportunities Fund III Limited Partnership, R.C. Morris & Company Special Opportunities Fund III PF1 Limited Partnership, R.C. Morris & Company Special Opportunities Fund III PF2 Limited Partneship, R.C.

Morris & Company Special Opportunities Fund III PF3 Limited Partnership, R.C. Morris & Company Special Opportunities Debt Fund IV Limited Partnership, R.C. Morris & Company Special Opportunities Debt Fund IV PF1 Limited Partnership, Samrat Karmik, Seair Inc, Vicki Tickle, And Wayne McNeill Defendants _______________________________________________________ Reasons for Judgment of the

Honourable Justice D.B. Nixon _______________________________________________________ I. Introduction [ 1 ] The Plaintiffs advance this application to either validate service or extend time for service of the underlying Statement of Claim (the “ Application ”). The issue of service concerns two individuals who reside outside of Canada. [ 2 ] The two foreign Respondents are Jeffery Seibert (“ Seibert ”) and Francis McKeever (“ McKeever ”). They appear conditionally on this Application, only to oppose the relief sought by the Plaintiffs (“ Applicants ”). II.

Facts [ 3 ] The underlying Statement of Claim was filed by the Applicants on May 16, 2019 (the “ May 2019 SOC ”). [ 4 ] Since Seibert and McKeever had not appeared by August 2019, a desk application authorizing service ex juris was filed by the Applicants. The Applicants took this step because these two Respondents were thought to reside outside of Canada. [ 5 ] On September 17, 2019, the law firm of Duncan Craig LLP wrote the Merchant Law Group LLP and advised that it had been retained by McKeever, among others.

In that correspondence, Duncan Craig LLP informed the Merchant Law Group LLP that it was gathering information and records from its clients for the purpose of preparing a Statement of Defence. [ 6 ] The Applicants assert that Duncan Craig LLP gave them a reasonable impression that McKeever had knowledge of the May 2019 SOC. However, on November 1, 2019, the law firm of Duncan Craig LLP again wrote the Merchant Law Group LLP and clarified that it had been retained to represent certain Defendants but not others.

In that correspondence, Duncan Craig LLP informed the Merchant Law Group LLP that it anticipated it would be retained to represent Seibert and McKeever if the Applicants decided to proceed against them and served them with the May 2019 SOC. [ 7 ] As of November 1, 2019, the Applicants had 6.5 months to effect service. [ 8 ] Counsel for the Applicant later discovered that an order permitting service ex juris on Seibert and McKeever had not been issued. [ 9 ] Concerning residency, Seibert resides in the United States and McKeever resides in the United Kingdom. [ 10 ] The United States and the United Kingdom are signatories to the Convention on The Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters: 15 November 1965, Hague Conference on Private International Law, 658 UNTS 163 [“ Hague Service Convention ”]. [ 11 ] There is no evidence the Applicants complied with the Hague Service Convention .

III. Issue [ 12 ] Are the Applicants entitled to proceed against Seibert and McKeever notwithstanding that neither of those individuals were served with a copy of the May 2019 SOC or an Order for service ex juris . IV. Analysis A. Overview [ 13 ] Proper service is important in any litigation. As mentioned above, Seibert and McKeever reside in the United States and the United Kingdom, respectively. That simple fact is critical in this Application. [ 14 ] Since we are dealing with two individuals who are not resident in Canada, we must be attentive to cross-border rules concerning service.

This is important because the Applicants are asking the Court to impose its jurisdiction over individuals who reside in foreign sovereign countries. [ 15 ] In an effort to advance their case, the Applicants assert that they have a reasonable belief that both Seibert and McKeever were members of the Seair Inc board at the time the May 2019 SOC was commenced. Seair Inc was served with the May 2019 SOC at its registered office.

In the view of the Applicants, it was inconceivable that the May 2019 SOC against both Seair Inc and personally against the Directors did not come to the attention of Seibert and McKeever. [ 16 ] But for this Application, the May 2019 SOC expired as against Seibert and McKeever on May 17, 2020.

B. Have Seibert and McKeever attorned to the jurisdiction of the Alberta Courts? [ 17 ] At the outset of the hearing, the Applicants acknowledged and accepted that the Seibert and McKeever were not attorning to the jurisdiction of this Court by responding to this Application.

This concession by the Applicants is consistent with my understanding of the law: see Norfolk Southern Railway Company v Crowshaw , 2014 ABQB 273 at paras 21 and 22 ; and Bansal v Ferrara Pan Candy Co Inc , 2014 ABQB 384 at paras 23 to 25 . [ 18 ] Given the concession by the Applicants on the attornment issue, the facts that are in evidence and an analysis of the law, I find Seibert and McKeever have not attorned to the jurisdiction of the Alberta Courts. C.

Is there an ability to cure defects of service under Rule 1.5? [ 19 ] The law firm of Duncan Craig LLP made it clear to the Merchant Law Group LLP in a letter dated November 1, 2019 that it had been retained to represent certain Defendants but not others.

Of particular relevance is that fact that Duncan Craig LLP explicitly informed the Merchant Law Group LLP that it anticipated that it would be retained to represent Seibert and McKeever if the Applicants decided to proceed against them and served them with the May 2019 SOC. [ 20 ] Based on my review of the facts, there is no evidence that either Seibert or McKeever retained Duncan Craig LLP. In making this comment, I acknowledge the narrative in the September 17, 2019 letter from Duncan Craig LLP to Merchant Law Group LLP.

However, while Duncan Craig LLP had indicated in September 2019 that they had been retained by McKeever, the evidence indicates, on a balance of probabilities, neither Seibert nor McKeever retained that firm. I make this determination because the November 1, 2019 letter from Duncan Craig LLP to Merchant Law Group LLP implied that the retainer had not been finalized in respect of Seibert or McKeever.

Further, there is no further evidence to suggest that Seibert or McKeever retained Duncan Craig LLP other than to address the narrow issue before me in this hearing concerning service. [ 21 ] Notwithstanding its deficiencies in this case, the Applicants assert that I have authority under Rule 1.5(1) to validate service.

The Applicants assert that if a person does not comply with procedural requirements or if there is an irregularity in a commencement document, a party may apply to the court to cure the contravention, non-compliance or irregularity. [ 22 ] The Applicants further assert that the utility of this rule with respect to service validation was acknowledged in Alberta Human Rights Commission (Director) v Vegreville Autobody

(1993) Ltd , 2018 ABCA 246 at paras 37 and 38 . In citing Vegreville Autobody , the Applicants referred to the comments of the dissenting Justice (Berger, JA). I also note that Vegreville Autobody is not concerned with any cross-border elements. It is a case where service issue was all within the boundaries of the Province of Alberta.

As a result, I give no weight to the judicial guidelines enunciated in Vegreville Autobody because the particulars in that case did not need to address the requirements of service in respect of a person who resides outside of Canada in a jurisdiction to which the Hague Service Convention applies. [ 23 ] When Duncan Craig LLP indicated to Merchant Law Group LLP on November 1, 2019 that they might be retained by Seibert and McKeever, the Applicants had over six months left to effect service.

While I acknowledge that the Applicants commenced steps to seek a desk application authorizing service ex juris , that process was never completed. Based on the evidence, that omission was an oversight of the Applicants. Importantly, there is no evidence that either Seibert or McKeever contributed to the oversight. Further, there is no evidence the Applicants took any additional steps to effect service within the time provided under the Rules .

As a result, there is a defect of service in respect of Seibert and McKeever. [ 24 ] As I understand the law, mere knowledge of a statement of claim is not enough to effect service; a Defendant must understand that his or her legal rights are being engaged: 1226911 Alberta Ltd v Redecopp , 2012 ABQB 776 at para 34 ; see also Reed, D J, & Poelman, G H (2022), Civil Procedure and Practice in Alberta 2022 LexisNexis Canada Inc at 453. Based on my review of the facts in this case, I find no evidence that either Seibert or McKeever understood that their legal rights had been engaged.

In making this statement, I distinguish between: (

i) a risk that legal rights might be engaged; and (ii) steps taken to actually engage those legal rights. [ 25 ] Given that determination, the next question is whether the defect of service in respect of either Seibert or McKeever can be corrected. Rule 1.5 is a general curative provision. However, the ability of Rule 1.5 to cure defects of service has limitations. It does not apply to noncompliance with Rule 11.25(2)(

b) and irregular methods or manners of service: Acciona Infrastructure Canada Inc v Posco Daewoo Corporation , 2019 ABCA 241 at para 90 . In particular and notwithstanding its broad terms, Rule 1.5 does not apply to noncompliant methods or manners of service outside Canada: Acciona at para 175. [ 26 ] In considering this matter, I also note that Rule 1.5(5) states that the Court must not cure any contravention, non-compliance or irregularity if to do so would have the effect of extending a time period that the Court is prohibited from extending.

As I read the relevant framework, Rule 1.5 is limited by Rule 3.26(3), which states that Rule 13.5 [which allows the Court to vary time periods] does not apply to this rule [relating to time for service of a statement of claim] or to an extension of time for service. Given this legal framework, there are very limited abilities for the Applicants to cure defects of service in respect of service outside of Canada. [ 27 ] Based on the evidence and my analysis of the law, I find there is no ability under Rule 1.5 to cure defects of service of the May 2019 SOC in these circumstances in respect of Seibert and McKeever.

D. Is the failure of the applicants to obtain an order for service ex juris fatal ? [ 28 ] The operative and mandatory rules governing the service of commencement documents outside Canada are well-defined. A commencement document may be served outside Canada only if the Court, on application supported by a satisfactory affidavit, permits service outside Canada, and the person served with the commencement document is also served with a copy of the order permitting service outside Canada: Rule 11.25(2)(

b) and (c). In this regard, it is important to recognize the different rules as between: (

i) service of a

commencement document outside of Alberta but within Canada; and (ii) service outside of Canada: see Rule 11.25(1) and Rule 11.25(2), respectively. [ 29 ] There is also a distinction in respect of how service is dealt with as between countries that are signatories to the Hague Service Convention and countries that are not signatories to that convention. Since Seibert and McKeever both reside in countries which are signatories to the Hague Service Convention , that is our focus in this case. [ 30 ] Where a commencement document is to be served in a jurisdiction to which the Hague Service Convention applies, the document must be served in accordance with Division 8 of

Part 11 of the Rules : see Rule 11.26(2). Service under Rule 11.26(2) is effected on the date service is achieved under the Hague Service Convention : Rule 11.26(4). [ 31 ] The Rules governing the service of documents outside the jurisdiction of Alberta and Canada must be adhered to strictly. Further, the Court must not “sanction service outside the jurisdiction without careful consideration”: Acciona at paras 15 and 16; see also Dreco Energy Services Ltd v Wenzel Downhole Tools Ltd , 2008 ABCA 395 at para 6 .

As a result, the failure to comply with Rules 11.25 and 11.26 cannot be validated retroactively: Acciona at paras 23 to 25. [ 32 ] Based on the evidence in this case and an analysis of the law, I have determined the Applicants cannot rely on either Rule 1.5 or Rule 11.27 without first obtaining judicial permission in the form of an Order for service ex juris to serve the May 2019 SOC outside of Canada. [ 33 ] As I read Rule 11.26, the method of service outlined by that provision is mandatory.

Based on the evidence and an analysis of the law, I find the Applicants’ failure to comply with the requirement to obtain an order for service ex juris or to comply with the Hague Service Convention is fatal to the Application. E. Can the failure to comply with the Hague Service Convention be cured? [ 34 ] As mentioned above, Seibert and McKeever reside in the United States and the United Kingdom, respectively. Both the United States and the United Kingdom are signatories to the Hague Service Convention .

In these circumstances, each of Seibert and McKeever are entitled to insist on proper service under the Rules and the Hague Service Convention : Acciona at para 29. [ 35 ] If an order for service ex juris is obtained (which never occurred in this case), compliance with Rules 11.33 and 11.34, as well as the Hague Service Convention , are mandatory: Rules 11.26(2) and 11.27(1). The scheme of the Hague Service Convention promotes cordiality in Canada’s international relations: Metcalfe Estate v Yamaha Motor Power Products Co, Ltd. , 2012 ABCA 240 at para 51 .

That Convention accommodates fundamental differences between civil and common law systems. [ 36 ] Rule 11.27 is not to be used to circumvent or avoid the international standards created by the Hague Service Convention : Metcalfe at para 50. Further, service of a commencement document should not be validated without proof that the Hague Service Convention has either been: (

i) accomplished; or (ii) frustrated within the meaning of

article 15 of the Convention: Acciona at para 22. [ 37 ] Even if the May 2019 SOC may have come to the notice of either or both of Seibert and McKeever, correcting such an irregularity in service would undermine the objectives of the Hague Service Convention and encroach upon the sovereignty of the United States and the United Kingdom.

For reasons of comity, strict compliance with the Hague Service Convention must be followed: Metcalfe at paras 55 and 60. [ 38 ] Based on the evidence in this case and an analysis of the law, I have determined that the failure of Applicants to comply with the requirements of the Hague Service Convention cannot be cured. F.

Is there an ability to effect a curative power to validate service under Rule 11.27 [ 39 ] The Applicants argue that this Court has authority under to Rule 11.27(1) to validate service of a document, such as the May 2019 SOC, whether it has been served inside or outside Alberta in a manner that is not specified by the Rules if the Court is satisfied that the method of service used brought or was likely to have brought the document to the attention of the person to be served. The Applicant cites Pappas v BCE Inc , 2015 ABQB 435 as authority for this proposition: see paras 50, 57 and 59.

The Pappas decision is from Master Prowse (as he then was). I disagree with the Applicants assertion concerning the scope of Rule 11.27. [ 40 ] In my view, the comments of the Applicants concerning Pappas overstate this Court’s powers in respect of serve outside of Alberta, particularly in respect of service outside of Canada. I make this comment for two reasons. First, there is no evidence, on the balance of probabilities, that either Seibert or McKeever was served. Second, Pappas is distinguishable because it dealt with service within Canada.

In contrast, this case deals with service in respect of individuals who are outside of Canada. In my view, that is an important distinction. [ 41 ] My views on this are supported by the following comment of Justice Strekaf in Venture Helicopters v European Aeronautic Defence and Space Company , 2010 ABQB 633 at para 46 : ...It is not sufficient that the action came to the attention of... [Seibert and McKeever]. Absent proper service, this court has no jurisdiction over these foreign entities.

A plaintiff should not be able to avoid the requirement to satisfy the express statutory requirement of Rule 30 in order to effect valid service on an extraterritorial party by simply demonstrating that the Statement of Claim was brought to their attention. As Master Funduk pointed out in A.B.S. at paragraph 43, “(

a) lack of jurisdiction cannot be overcome by the fact a foreigner knows of the action against him.” [ 42 ] Rule 11.27 is expressly subject to Division 8 of

Part 11 of the Rules : see Rules 11.27(1), 11.33 and 11.34. As a result of the carve-out in Rule 11.27, the Court does not have the power to validate non-compliance with Rule 11.25(2)(

b) and (c). That particular

Rule requires an order permitting service outside Canada. It only permits the Court “to make an order validating the service of a document served outside Alberta in a manner that is not specified by the Rules”: Acciona at para 94. [ 43 ] Further, a Court acting under Rule 11.27 may only validate a manner or method of service that is not compliant with

Article 15 of the Hague Service Convention in extraordinary circumstances. An onerous standard is imposed because sovereign states generally regard service not in accord with

Article 15 as a trespass on their sovereign jurisdiction: Acciona at para 95. [ 44 ] In these circumstances, the Applicants cannot rely on Rule 11.27. I make that comment for three reasons. [ 45 ] First, there was no “method of service used”: Rule 11.27(1). There is no evidence to suggest that any attempt whatsoever was made by the Applicants to actually serve either Seibert or McKeever. This is not a case of unconventional service. This is a case of no service. In my view, that is an important distinction. [ 46 ] Second, Rule 11.25(2)(

c) requires that the commencement documents be served concurrent with an order permitting service outside Canada. In this case, no order for service ex juris was obtained by the Applicants. As a result, service cannot be validated for a non-existing document. [ 47 ] Third, the suggestion that the Applicants had reasonable belief that Seibert and McKeever had notice is contrary to a letter issued on November 1, 2019 by Duncan Craig LLP to the Merchant Law Group LLP.

Counsel for Seibert and McKeever deliberately wrote to counsel for the Applicants on November 1, 2019 to advise that “I anticipate that I will be retained to represent Jeff Seibert and/or Francis McKeever if you decide you want to proceed against them and serve them with the Statement of Claim” (emphasis added). [ 48 ] Clearly, the November 1, 2019 letter from Duncan Craig LLP to the Merchant Law Group LLP clarified that it had been retained to represent certain Defendants but not others.

In that correspondence, Duncan Craig LLP informed the Merchant Law Group LLP that it anticipated that it would be retained to represent Seibert and McKeever if the Applicants decided to proceed against them and served them with the May 2019 SOC.

That statement indicated they had not been served with that commencement document and that it was unclear as to whether the Applicants wished to proceed against either Seibert or McKeever. [ 49 ] Based on the evidence before me, I infer that Applicants knew they had to obtain an Order for service ex juris , and then serve Seibert and McKeever with both the pleading and the order in accordance with the Hague Service Convention . I make this determination because the Applicants started the process to obtain an order for service ex juris, but they did not complete the steps.

In the circumstances of this case, counsel for the Applicants alone bears the responsibility for failure to serve the pleading and nonexistent Order within the time prescribed by the Rules . In making this comment I acknowledge the illness of one of the lawyers for the Applicants. However, that illness did not impact the delay of the necessary steps.

As a result, that illness is not relevant to my analysis. [ 50 ] As stated by Master Prowse (as he then was) where no order for service ex juris is obtained in advance, an order retroactively validating service ex juris cannot be obtained: Viallon v Bumper Development Corporation Ltd , 2019 ABQB 52 at para 23 ; see also Venture Helicopters at paras 17 and 56 ; BTI Corp (Delaware) Inc v Gener SA , 2003 ABQB 223 at paras 13 and 14 ; and Metcalfe at paras 46 and 65. If retroactivity is to be permitted, unambiguous language would be required in Rule 11.27.

Such unequivocal language does not exist within that provision. [ 51 ] Based on the evidence and my analysis of the law, I find there is no curative power under Rule 11.27 to validate service of the May 2019 SOC in respect of Seibert and McKeever. G. Is there an ability to extend the time for service under Rule 3.27? [ 52 ] Rules 3.27(1)(

a) and (

c) relate to the conduct of Seibert and McKeever and their counsel. In this case, however, neither the conduct of Seibert nor McKeever caused the failure to serve the May 2019 SOC in time. [ 53 ] Based on the evidence above, the failure to serve the May 2019 SOC was not related to either these two Respondents or their anticipated counsel. It was related solely to the activities within the offices of the Merchant Law Group LLP. [ 54 ] The “special or extraordinary circumstances” referred to in Rule 3.27(1)(

c) is qualified by the language which requires the existence of circumstances that result “solely from the defendant’s conduct or from the conduct of a person who is not a party to this action”.

An extension of time for service of a Statement of Claim under Rule 3.27 should not be permitted under the circumstances where the failure to serve is caused by the inadvertence of the Plaintiff’s counsel, even in situations where there is no prejudice to either Seibert or McKeevers: McGowan v Lang , 2015 ABCA 217 at paras 27 and 28 . [ 55 ] I am also of the view that the jurisprudence cited by the Applicants concerning Rule 3.27 was not helpful to its Application.

The Scott v Westwinds Communities , 2021 ABCA 30 case is distinguishable because it deals with Rule 3.26, and the case does not involve any cross-border aspect. Similarly, the Oberg v Foothills Provincial General Hospital , 1999 ABCA 76 case is also distinguishable because it does not involve any cross-border aspect. In my view, the international border aspect of the case at bar changes everything. [ 56 ] Based on the evidence and my analysis of the law, I find there are no grounds to extend the time for service of the May 2019 SOC under Rule 3.27 in respect of Seibert and McKeever.

That Rule simply has no application in the circumstances of this case. H. Is there an ability to vary time periods under Rule 1.4? [ 57 ] Rule 1.4(1) is “subject to any special provisions of these Rules”. In particular, Rule 1.4(2)(

h) allows the Court to extend time or do anything in proceedings. However, that subrule is qualified by the phrase, “unless specifically limited by these Rules”.

[ 58 ] The ability of the Court to vary time periods pursuant to Rule 13.5 of the technical rules is limited by Rule 13.5(1). That limiting provision reads “unless…a Rule otherwise provides, the parties may agree to extend any time period specified in these Rules”: Rule 13.5(1).

As I already stated above in a different context, Rule 3.26(3) specifically provides that Rule 13.5 [variation of time periods] does not apply to this Rule or to an extension of time ordered under this Rule : Rule 3.26(3). [ 59 ] As I read the relevant framework, neither Rule 1.4(1) nor Rule 1.4(2) can be utilized because the Rules specifically address the need for service within a specified time period.

It is clear that service can be extended only under special or exceptional circumstances under Rule 3.27. [ 60 ] Based on the evidence and my analysis of the law, I find there is no ability to vary the time periods for service under Rule 1.4. I. What is the effect of not serving the May 2019 SOC in time? [ 61 ] If the May 2019 SOC is not served on Seibert and McKeever within the time or extended time for service, no further proceeding may be taken in the action against those Defendants: Rule 3.28(a).

That is, a lawsuit against either Seibert or McKeever who is not served within the required timeframe is exhausted. [ 62 ] If the May 2019 SOC in respect of a particular individual is exhausted, it cannot revive or be brought back to life except in strict compliance with the rules: Nixon v Timms , 2013 ABCA 84 at paras 5 , 6, 8 and 10.

In stating this legal parameter, I acknowledge that the Timms decision relates to former Rule 11 and the issue as to whether new Rule 3.27 can revive a dead action. [ 63 ] Given these legal parameters, if the May 2019 SOC is not served within the required timeframe in respect of Seibert and McKeever, the lawsuit against them is exhausted. J. Conclusion [ 64 ] Given my above findings and determinations, the Applicants are not entitled to proceed against Seibert and McKeever in respect of the May 2019 SOC. The lawsuit against those two individuals is dead.

As a result, I direct that no further proceedings be taken in this action against Seibert or McKeever: Rule 3.28. In the result, the Application is dismissed. V. Costs [ 65 ] Costs may be spoken to if the parties cannot otherwise agree. Heard on the 21 st day of November, 2022. Dated at the City of Calgary, Alberta this 8 th day of December, 2022. D.B. Nixon J.C.Q.B.A. Appearances: Evatt Francis, E.F. Anthony Merchant, KC and Anthony Tibbs for the Applicants Edward Feehan, KC for the Respondents Francis McKeever and Jeffrey M. Seibert Matthew Riskin for the Defendant CIBC World Markets Inc

Jakub D. Ksiazek for the Pre-Default Board Members Paul Casey, Lowy Gunnewick, Samrat Karnik and John Goetz Catriona Otto-Johnston for the Defendant Wayne McNeill