By: Jassmine Girgis
PDF Version: A Generalized Duty of Good Faith Applied to Disclaimer Under the CCAA
Case Commented On: Laurentian University v Sudbury University, 2021 ONSC 3392 (CanLII)
In this case, the court considered the new generalized duty of good faith in relation to setting aside a disclaimer under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (CCAA). When Laurentian University (LU), sought to disclaim agreements with the University of Sudbury (Sudbury) as part of its restructuring, Sudbury brought this motion to set the disclaimer aside, arguing that LU was using the CCAA restructuring process for a collateral or illegitimate purpose, namely to destroy a competitor (at paras 22—24). Sudbury argued that LU’s attempt to disclaim these agreements was a violation of its duty to act in good faith as per s 18.6. Concurrent to this motion, Thornloe University (Thornloe) also brought a motion against LU, dealing with the same issue – to set aside a disclaimer – using similar good faith arguments (Laurentian University of Sudbury, 2021 ONSC 3272 (CanLII) [Laurentian University]). Each motion was dismissed.