Abitibi wins, Newfoundland cleanup order unenforceable after insolvency

As expected, Newfoundland has lost its attempt to enforce its environmental cleanup orders against AbitibiBowater after insolvency. Newfoundland issued the cleanup orders in an attempt to jump the queue of Abitibi’s creditors. Crucially, Abitibi no longer owned or used the contaminated sites in its business, because the province had already expropriated them.

In an important and long awaited decision, the Supreme Court of Canada agreed that these orders were really financial claims, and were therefore barred by the insolvency. The province could have made its claims in the Companies Creditors Arrangement Act proceeding like any other creditor, but chose not to. Since little money was available for unsecured creditors, it would not have received much that way.

Provincial governments must therefore do more to ensure that cleanup costs are provided by financial assurance during the active life of a business, and not rely on getting innocent third parties to pay for cleanups after the fact.

Polluter pay is not the same as third party pay

The court said:

“[39] Having highlighted three requirements for finding a claim to be provable in a CCAA process that need to be considered in the case at bar, I must now discuss certain policy arguments raised by the Province and some of the interveners.

[40] These parties argue that treating a regulatory order as a claim in an insolvency proceeding extinguishes the debtor’s environmental obligations, thereby undermining the polluter-pay principle …This objection demonstrates a misunderstanding of the nature of insolvency proceedings. Subjecting an order to the claims process does not extinguish the debtor’s environmental obligations any more than subjecting any creditor’s claim to that process extinguishes the debtor’s obligation to pay its debts. It merely ensures that the creditor’s claim will be paid in accordance with insolvency legislation. Moreover, full compliance with orders that are found to be monetary in nature would shift the costs of remediation to third-party creditors, including involuntary creditors, such as those whose claims lie in tort or in the law of extra-contractual liability. In the insolvency context, the Province’s position would result not only in a super-priority, but in the acceptance of a “third party-pay” principle in place of the polluter-pay principle.

[41]                      Nor does subjecting the orders to the insolvency process amount to issuing a licence to pollute, since insolvency proceedings do not concern the debtor’s future conduct. A debtor that is reorganized must comply with all environmental regulations going forward in the same way as any other person. To quote the colourful analogy of two American scholars, “Debtors in bankruptcy have — and should have — no greater license to pollute in violation of a statute than they have to sell cocaine in violation of a statute” ….

[42]                      Furthermore, corporations may engage in activities that carry risks. No matter what risks are at issue, reorganization made necessary by insolvency is hardly ever a deliberate choice. When the risks materialize, the dire costs are borne by almost all stakeholders. To subject orders to the claims process is not to invite corporations to restructure in order to rid themselves of their environmental liabilities.”

Two of the justices dissented, and would have allowed Abitibi to enforce some of the orders.

 

 The text of the decision:

The judgment of Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis JJ. was delivered by

 

Deschamps J. —

[1]                      The question in this appeal is whether orders issued by a regulatory body with respect to environmental remediation work can be treated as monetary claims under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”).

[2]                      Regulatory bodies may become involved in reorganization proceedings when they order the debtor to comply with statutory rules. As a matter of principle, reorganization does not amount to a licence to disregard rules. Yet there are circumstances in which valid and enforceable orders will be subject to an arrangement under the CCAA. One such circumstance is where a regulatory body makes an environmental order that explicitly asserts a monetary claim.

[3]                      In other circumstances, it is less clear whether an order can be treated as a monetary claim. The appellant and a number of interveners posit that an order issued by an environmental body is not a claim under the CCAA if the order does not require the debtor to make a payment. I agree that not all orders issued by regulatory bodies are monetary in nature and thus provable claims in an insolvency proceeding, but some may be, even if the amounts involved are not quantified at the outset of the proceeding. In the environmental context, the CCAA court must determine whether there are sufficient facts indicating the existence of an environmental duty that will ripen into a financial liability owed to the regulatory body that issued the order.  In such a case, the relevant question is not simply whether the body has formally exercised its power to claim a debt. A CCAA court does not assess claims — or orders — on the basis of form alone. If the order is not framed in monetary terms, the court must determine, in light of the factual matrix and the applicable statutory framework, whether it is a claim that will be subject to the claims process.

[4]                      The case at bar concerns contamination that occurred, prior to the CCAA proceedings, on property that is largely no longer under the debtor’s possession and control.  The CCAA court found on the facts of this case that the orders issued by Her Majesty the Queen in right of the Province of Newfoundland and Labrador (“Province”) were simply a first step towards remediating the contaminated property and asserting a claim for the resulting costs. In the words of the CCAA court, “the intended, practical and realistic effect of the EPA Orders was to establish a basis for the Province to recover amounts of money to be eventually used for the remediation of the properties in question” (2010 QCCS 1261, 68 C.B.R. (5th) 1, at para. 211).  As a result, the CCAA court found that the orders were clearly monetary in nature. I see no error of law and no reason to interfere with this finding of fact. I would dismiss the appeal with costs.

I.  Facts and Procedural History

[5]                      For over 100 years, AbitibiBowater Inc. and its affiliated or predecessor companies (together, “Abitibi”) were involved in industrial activity in Newfoundland and Labrador.  In 2008, Abitibi announced the closure of a mill that was its last operation in that province.

[6]                      Within two weeks of the announcement, the Province passed the Abitibi-Consolidated Rights and Assets Act, S.N.L. 2008, c. A-1.01 (“Abitibi Act”), which immediately transferred most of Abitibi’s property in Newfoundland and Labrador to the Province and denied Abitibi any legal remedy for this expropriation.

[7]                      The closure of its mill in Newfoundland and Labrador was one of many decisions Abitibi made in a period of general financial distress affecting its activities both in the United States and in Canada. It filed for insolvency protection in the United States on April 16, 2009. It also sought a stay of proceedings under the CCAA in the Superior Court of Quebec, as its Canadian head office was located in Montreal. The CCAA stay was ordered on April 17, 2009.

[8]                      In the same month, Abitibi also filed a notice of intent to submit a claim to arbitration under NAFTA (the North American Free Trade Agreement Between the Government of the United Mexican States and the Government of the United States of America, Can. T.S. 1994 No. 2) for losses resulting from the Abitibi Act, which, according to Abitibi, exceeded $300 million.

[9]                      On November 12, 2009, the Province’s Minister of Environment and Conservation (“Minister”) issued five orders (“EPA Orders”) under s. 99 of the Environmental Protection Act, S.N.L. 2002, c. E-14.2 (“EPA”). The EPA Orders required Abitibi to submit remediation action plans to the Minister for five industrial sites, three of which had been expropriated, and to complete the approved remediation actions. The CCAA judge estimated the cost of implementing these plans to be from “the mid-to-high eight figures” to “several times higher” (para. 81).

[10]                   On the day it issued the EPA Orders, the Province brought a motion for a declaration that a claims procedure order issued under the CCAA in relation to Abitibi’s proposed reorganization did not bar the Province from enforcing the EPA Orders. The Province argued — and still argues — that non-monetary statutory obligations are not “claims” under the CCAA and hence cannot be stayed and be subject to a claims procedure order. It further submits that Parliament lacks the constitutional competence under its power to make laws in relation to bankruptcy and insolvency to stay orders that are validly made in the exercise of a provincial power.

[11]                   Abitibi contested the motion and sought a declaration that the EPA Orders were stayed and that they were subject to the claims procedure order. It argued that the EPA Orders were monetary in nature and hence fell within the definition of the word “claim” in the claims procedure order.

[12]                   Gascon J. of the Quebec Superior Court, sitting as a CCAA court, dismissed the Province’s motion. He found that he had the authority to characterize the orders as “claims” if the underlying regulatory obligations “remain[ed], in a particular fact pattern, truly financial and monetary in nature” (para. 148). He declared that the EPA Orders were stayed by the initial stay order and were not subject to the exception found in that order. He also declared that the filing by the Province of any claim based on the EPA Orders was subject to the claims procedure order, and reserved to the Province the right to request an extension of time to assert a claim under the claims procedure order and to Abitibi the right to contest such a request.

[13]                   In the Court of Appeal, Chamberland J.A. denied the Province leave to appeal (2010 QCCA 965, 68 C.B.R. (5th) 57). In his view, the appeal had no reasonable chance of success, because Gascon J. had found as a fact that the EPA Orders were financial or monetary in nature. Chamberland J.A. also found that no constitutional issue arose, given that the Superior Court judge had merely characterized the orders in the context of the restructuring process; the judgment did not ‘“immunise’ Abitibi from compliance with the EPA Orders” (para. 33). Finally, he noted that Gascon J. had reserved the Province’s right to request an extension of time to file a claim in the CCAA process.

II.  Positions of the Parties

[14]                   The Province argues that the CCAA court erred in interpreting the relevant CCAA provisions in a way that nullified the EPA, and that the interpretation is inconsistent with both the ancillary powers doctrine and the doctrine of interjurisdictional immunity. The Province further submits that, in any event, the EPA Orders are not “claims” within the meaning of the CCAA. It takes the position that “any plan of compromise and arrangement that Abitibi might submit for court approval must make provision for compliance with the EPA Orders” (A.F., at para. 32).

[15]                   Abitibi contends that the factual record does not provide a basis for applying the constitutional doctrines. It relies on the CCAA court’s findings of fact, particularly the finding that the Province’s intent was to establish the basis for a monetary claim. Abitibi submits that the true issue is whether a province that has a monetary claim against an insolvent company can obtain a preference against other unsecured creditors by exercising its regulatory power.

III. Constitutional Questions

[16]                   At the Province’s request, the Chief Justice stated the following constitutional questions:

1. Is the definition of “claim” in s. 2(1) of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ultra vires the Parliament of Canada or constitutionally inapplicable to the extent this definition includes statutory duties to which the debtor is subject pursuant to s. 99 of the Environmental Protection Act, S.N.L. 2002, c. E-14.2?

 

2. Is s. 11 of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ultra vires the Parliament of Canada or constitutionally inapplicable to the extent this section gives courts jurisdiction to bar or extinguish statutory duties to which the debtor is subject pursuant to s. 99 of the Environmental Protection Act, S.N.L. 2002, c. E-14.2?

 

3. Is s. 11 of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, ultra vires the Parliament of Canada or constitutionally inapplicable to the extent this section gives courts jurisdiction to review the exercise of ministerial discretion under s. 99 of the Environmental Protection Act, S.N.L. 2002, c. E-14.2?

[17]                   I note that the question whether a CCAA court has constitutional jurisdiction to stay a provincial order that is not a monetary claim does not arise here, because the stay order in this case did not affect non-monetary orders. However, the question may arise in other cases. In 2007, Parliament expressly gave CCAA courts the power to stay regulatory orders that are not monetary claims by amending the CCAA to include the current version of s. 11.1(3) (An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act, the Wage Earner Protection Program Act and chapter 47 of the Statutes of Canada, 2005, S.C. 2007, c. 36, s. 65) (“2007 amendments”). Thus, future cases may give courts the opportunity to consider the question raised by the Province in an appropriate factual context. The only constitutional question that needs to be answered in this case concerns the jurisdiction of a CCAA court to determine whether an environmental order that is not framed in monetary terms is in fact a monetary claim.

[18]                   Processing creditors’ claims against an insolvent debtor in an equitable and orderly manner is at the heart of insolvency legislation, which falls under a head of power attributed to Parliament. Rules concerning the assessment of creditors’ claims, such as the determination of whether a creditor has a monetary claim, relate directly to the equitable and orderly treatment of creditors in an insolvency process. There is no need to perform a detailed analysis of the pith and substance of the provisions on the assessment of claims in insolvency matters to conclude that the federal legislation governing the characterization of an order as a monetary claim is valid. Because the provisions relate directly to Parliament’s jurisdiction, the ancillary powers doctrine is not relevant to this case. I also find that the interjurisdictional immunity doctrine is not applicable. A finding that a claim of an environmental creditor is monetary in nature does not interfere in any way with the creditor’s activities. Its claim is simply subjected to the insolvency process.

[19]                   What the Province is actually arguing is that courts should consider the form of an order rather than its substance. I see no reason why the Province’s choice of order should not be scrutinized to determine whether the form chosen is consistent with the order’s true purpose as revealed by the Province’s own actions. If the Province’s actions indicate that, in substance, it is asserting a provable claim within the meaning of federal legislation, then that claim can be subjected to the insolvency process. Environmental claims do not have a higher priority than is provided for in the CCAA. Considering substance over form prevents a regulatory body from artificially creating a priority higher than the one conferred on the claim by federal legislation. This Court recognized long ago that a province cannot disturb the priority scheme established by the federal insolvency legislation: Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453. Environmental claims are given a specific, and limited, priority under the CCAA. To exempt orders which are in fact monetary claims from the CCAA proceedings would amount to conferring upon provinces a priority higher than the one provided for in the CCAA.

IV.  Claims under the CCAA

[20]                   Several provisions of the CCAA have been amended since Abitibi filed for insolvency protection. Except where otherwise indicated, the provisions I refer to are those that were in force when the stay was ordered.

[21]                   One of the central features of the CCAA scheme is the single proceeding model, which ensures that most claims against a debtor are entertained in a single forum. Under this model, the court can stay the enforcement of most claims against the debtor’s assets in order to maintain the status quo during negotiations with the creditors. When such negotiations are successful, the creditors typically accept less than the full amounts of their claims. Claims have not necessarily accrued or been liquidated at the outset of the insolvency proceeding, and they sometimes have to be assessed in order to determine the monetary value that will be subject to compromise.

[22]                   Section 12 of the CCAA establishes the basic rules for ascertaining whether an order is a claim that may be subjected to the insolvency process:

[Definition of “claim”]

 

12. (1) For the purposes of this Act, “claim” means any indebtedness, liability or obligation of any kind that, if unsecured, would be a debt provable in bankruptcy within the meaning of the Bankruptcy and Insolvency Act.

 

[Determination of amount of claim]

 

(2) For the purposes of this Act, the amount represented by a claim of any secured or unsecured creditor shall be determined as follows:

(a) the amount of an unsecured claim shall be the amount

 

. . .

 

(iii) in the case of any other company, proof of which might be made under the Bankruptcy and Insolvency Act, but if the amount so provable is not admitted by the company, the amount shall be determined by the court on summary application by the company or by the creditor; and . . .

[23]                   Section 12 of the CCAA refers to the rules of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”). Section 2 of the BIA defines a claim provable in bankruptcy:

“claim provable in bankruptcy”, “provable claim” or “claim provable” includes any claim or liability provable in proceedings under this Act by a creditor.

[24]                   This definition is completed by s. 121 of the BIA:

121. (1) All debts and liabilities, present or future, to which the bankrupt is subject on the day on which the bankrupt becomes bankrupt or to which the bankrupt may become subject before the bankrupt’s discharge by reason of any obligation incurred before the day on which the bankrupt becomes bankrupt shall be deemed to be claims provable in proceedings under this Act.

[25]                   Sections 121(2) and 135(1.1) of the BIA offer additional guidance for the determination of whether an order is a provable claim:

121. . . .

 

(2) The determination whether a contingent or unliquidated claim is a provable claim and the valuation of such a claim shall be made in accordance with section 135.

 

135. . . .

 

(1.1) The trustee shall determine whether any contingent claim or unliquidated claim is a provable claim, and, if a provable claim, the trustee shall value it, and the claim is thereafter, subject to this section, deemed a proved claim to the amount of its valuation.

[26]                   These provisions highlight three requirements that are relevant to the case at bar. First, there must be a debt, a liability or an obligation to a creditor. Second, the debt, liability or obligation must be incurred before the debtor becomes bankrupt. Third, it must be possible to attach a monetary value to the debt, liability or obligation. I will examine each of these requirements in turn.

[27]                   The BIA’s definition of a provable claim, which is incorporated by reference into the CCAA, requires the identification of a creditor. Environmental statutes generally provide for the creation of regulatory bodies that are empowered to enforce the obligations the statutes impose. Most environmental regulatory bodies can be creditors in respect of monetary or non-monetary obligations imposed by the relevant statutes. At this first stage of determining whether the regulatory body is a creditor, the question whether the obligation can be translated into monetary terms is not yet relevant. This issue will be broached later. The only determination that has to be made at this point is whether the regulatory body has exercised its enforcement power against a debtor. When it does so, it identifies itself as a creditor, and the requirement of this stage of the analysis is satisfied.

[28]                   The enquiry into the second requirement is based on s. 121(1) of the BIA, which imposes a time limit on claims.  A claim must be founded on an obligation that was “incurred before the day on which the bankrupt becomes bankrupt”. Because the date when environmental damage occurs is often difficult to ascertain, s. 11.8(9) of the CCAA provides more temporal flexibility for environmental claims:

11.8. . . .

 

(9) A claim against a debtor company for costs of remedying any environmental condition or environmental damage affecting real property of the company shall be a claim under this Act, whether the condition arose or the damage occurred before or after the date on which proceedings under this Act were commenced.

[29]                   The creditor’s claim will be exempt from the single proceeding requirement if the debtor’s corresponding obligation has not arisen as of the time limit for inclusion in the insolvency process. This could apply, for example, to a debtor’s statutory obligations relating to polluting activities that continue after the reorganization, because in such cases, the damage continues to be sustained after the reorganization has been completed.

[30]                   With respect to the third requirement, that it be possible to attach a monetary value to the obligation, the question is whether orders that are not expressed in monetary terms can be translated into such terms. I note that when a regulatory body claims an amount that is owed at the relevant date, that is, when it frames its order in monetary terms, the court does not need to make this determination, because what is being claimed is an “indebtedness” and therefore clearly falls within the meaning of “claim” as defined in s. 12(1) of the CCAA.

[31]                   However, orders, which are used to address various types of environmental challenges, may come in many forms, including stop, control, preventative, and clean-up orders (D. Saxe, “Trustees’ and Receivers’ Environmental Liability Update” (1997), 49 C.B.R. (3d) 138, at p. 141). When considering an order that is not framed in monetary terms, courts must look at its substance and apply the rules for the assessment of claims.

[32]                   Parliament recognized that regulatory bodies sometimes have to perform remediation work (see House of Commons, Standing Committee on Industry, No. 16, 2nd Sess., 35th Parl., June 11, 1996). When one does so, its claim with respect to remediation costs is subject to the insolvency process, but the claim is secured by a charge on the contaminated real property and certain other related property and benefits from a priority (s. 11.8(8) CCAA). Thus, Parliament struck a balance between the public’s interest in enforcing environmental regulations and the interest of third-party creditors in being treated equitably.

[33]                   If Parliament had intended that the debtor always satisfy all remediation costs, it would have granted the Crown a priority with respect to the totality of the debtor’s assets. In light of the legislative history and the purpose of the reorganization process, the fact that the Crown’s priority under s. 11.8(8) CCAA is limited to the contaminated property and certain related property leads me to conclude that to exempt environmental orders would be inconsistent with the insolvency legislation. As deferential as courts may be to regulatory bodies’ actions, they must apply the general rules.

[34]                   Unlike in proceedings governed by the common law or the civil law, a claim may be asserted in insolvency proceedings even if it is contingent on an event that has not yet occurred (for the common law, see Canada v. McLarty, 2008 SCC 26, [2008] 2 S.C.R. 79, at paras. 17-18; for the civil law, see arts. 1497, 1508 and 1513 of the Civil Code of Québec, S.Q. 1991, c. 64). Thus, the broad definition of “claim” in the BIA includes contingent and future claims that would be unenforceable at common law or in the civil law. As for unliquidated claims, a CCAA court has the same power to assess their amounts as would a court hearing a case in a common law or civil law context.

[35]                   The reason the BIA and the CCAA include a broad range of claims is to ensure fairness between creditors and finality in the insolvency proceeding for the debtor. In a corporate liquidation process, it is more equitable to allow as many creditors as possible to participate in the process and share in the liquidation proceeds. This makes it possible to include creditors whose claims have not yet matured when the corporate debtor files for bankruptcy, and thus avert a situation in which they would be faced with an inactive debtor that cannot satisfy a judgment. The rationale is slightly different in the context of a corporate proposal or reorganization. In such cases, the broad approach serves not only to ensure fairness between creditors, but also to allow the debtor to make as fresh a start as possible after a proposal or an arrangement is approved.

[36]                   The criterion used by courts to determine whether a contingent claim will be included in the insolvency process is whether the event that has not yet occurred is too remote or speculative: Confederation Treasury Services Ltd. (Bankrupt), Re (1997), 96 O.A.C. 75. In the context of an environmental order, this means that there must be sufficient indications that the regulatory body that triggered the enforcement mechanism will ultimately perform remediation work and assert a monetary claim to have its costs reimbursed. If there is sufficient certainty in this regard, the court will conclude that the order can be subjected to the insolvency process.

[37]                   The exercise by the CCAA court of its jurisdiction to determine whether an order is a provable claim entails a certain scrutiny of the regulatory body’s actions. This scrutiny is in some ways similar to judicial review. There is a distinction, however, and it lies in the object of the assessment that the CCAA court must make. The CCAA court does not review the regulatory body’s exercise of discretion. Rather, it inquires into whether the facts indicate that the conditions for inclusion in the claims process are met. For example, if activities at issue are ongoing, the CCAA court may well conclude that the order cannot be included in the insolvency process because the activities and resulting damages will continue after the reorganization is completed and hence exceed the time limit for a claim. If, on the other hand, the regulatory body, having no realistic alternative but to perform the remediation work itself, simply delays framing the order as a claim in order to improve its position in relation to other creditors, the CCAA court may conclude that this course of action is inconsistent with the insolvency scheme and decide that the order has to be subject to the claims process. Similarly, if the property is not under the debtor’s control and the debtor does not, and realistically will not, have the means to perform the remediation work, the CCAA court may conclude that it is sufficiently certain that the regulatory body will have to perform the work.

[38]                   Certain indicators can thus be identified from the text and the context of the provisions to guide the CCAA court in determining whether an order is a provable claim, including whether the activities are ongoing, whether the debtor is in control of the property, and whether the debtor has the means to comply with the order. The CCAA court may also consider the effect that requiring the debtor to comply with the order would have on the insolvency process. Since the appropriate analysis is grounded in the facts of each case, these indicators need not all apply, and others may also be relevant.

[39]                   Having highlighted three requirements for finding a claim to be provable in a CCAA process that need to be considered in the case at bar, I must now discuss certain policy arguments raised by the Province and some of the interveners.

[40]                   These parties argue that treating a regulatory order as a claim in an insolvency proceeding extinguishes the debtor’s environmental obligations, thereby undermining the polluter-pay principle discussed by this Court in Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624 (para. 24). This objection demonstrates a misunderstanding of the nature of insolvency proceedings. Subjecting an order to the claims process does not extinguish the debtor’s environmental obligations any more than subjecting any creditor’s claim to that process extinguishes the debtor’s obligation to pay its debts. It merely ensures that the creditor’s claim will be paid in accordance with insolvency legislation.  Moreover, full compliance with orders that are found to be monetary in nature would shift the costs of remediation to third-party creditors, including involuntary creditors, such as those whose claims lie in tort or in the law of extra-contractual liability. In the insolvency context, the Province’s position would result not only in a super-priority, but in the acceptance of a “third party-pay” principle in place of the polluter-pay principle.

[41]                   Nor does subjecting the orders to the insolvency process amount to issuing a licence to pollute, since insolvency proceedings do not concern the debtor’s future conduct. A debtor that is reorganized must comply with all environmental regulations going forward in the same way as any other person. To quote the colourful analogy of two American scholars, “Debtors in bankruptcy have — and should have — no greater license to pollute in violation of a statute than they have to sell cocaine in violation of a statute” (D. G. Baird and T. H. Jackson, “Comment: Kovacs and Toxic Wastes in Bankruptcy” (1984), 36 Stan. L. Rev. 1199, at p. 1200).

[42]                   Furthermore, corporations may engage in activities that carry risks. No matter what risks are at issue, reorganization made necessary by insolvency is hardly ever a deliberate choice. When the risks materialize, the dire costs are borne by almost all stakeholders. To subject orders to the claims process is not to invite corporations to restructure in order to rid themselves of their environmental liabilities.

[43]                   And the power to determine whether an order is a provable claim does not mean that the court will necessarily conclude that the order before it will be subject to the CCAA process. In fact, the CCAA court in the case at bar recognized that orders relating to the environment may or may not be considered provable claims. It stayed only those orders that were monetary in nature.

[44]                   The Province also argues that courts have in the past held that environmental orders cannot be interpreted as claims when the regulatory body has not yet exercised its power to assert a claim framed in monetary terms. The Province relies in particular on Panamericana de Bienes y Servicios S.A. v. Northern Badger Oil & Gas Ltd. (1991), 81 Alta. L.R. (2d) 45 (C.A.), and its progeny. In Panamericana, the Alberta Court of Appeal held that a receiver was personally liable for work under a remediation order and that the order was not a claim in insolvency proceedings. The court found that the duty to undertake remediation work is owed to the public at large until the regulator exercises its power to assert a monetary claim.

[45]                   The first answer to the Province’s argument is that courts have never shied away from putting substance ahead of form. They can determine whether the order is in substance monetary.

[46]                   The second answer is that the provisions relating to the assessment of claims, particularly those governing contingent claims, contemplate instances in which the quantum is not yet established when the claims are filed. Whether, in the regulatory context, an obligation always entails the existence of a correlative right has been discussed by a number of scholars. Various theories of rights have been put forward (see W. N. Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (new ed. 2001); D. N. MacCormick, “Rights in Legislation”, in P. M. S. Hacker and J. Raz, eds., Law, Morality, and Society: Essays in Honour of H. L. A. Hart (1977), 189). However, because the Province issued the orders in this case, it would be recognized as a creditor in respect of a right no matter which of these theories was applied. As interesting as the discussion may be, therefore, I do not need to consider which theory should prevail. The real question is not to whom the obligation is owed, as this question is answered by the statute, which determines who can require that it be discharged. Rather, the question is whether it is sufficiently certain that the regulatory body will perform the remediation work and, as a result, have a monetary claim.

[47]                   The third answer to the Province’s argument is that insolvency legislation has evolved considerably over the two decades since Panamericana. At the time of Panamericana, none of the provisions relating to environmental liabilities were in force. Indeed, some of those provisions were enacted very soon after, and seemingly in response to, that case. In 1992, Parliament shielded trustees from the very liability imposed on the receiver in Panamericana (An Act to amend the Bankruptcy Act and to amend the Income Tax Act in consequence thereof, S.C. 1992, c. 27, s. 9, amending s. 14 of the BIA). The 1997 amendments provided additional protection to trustees and monitors (S.C. 1997, c. 12). The 2007 amendments made it clear that a CCAA court has the power to determine that a regulatory order may be a claim and also provided criteria for staying regulatory orders (s. 65, amending the CCAA to include the current version of s. 11.1). The purpose of these amendments was to balance the creditor’s need for fairness against the debtor’s need to make a fresh start.

[48]                   Whether the regulatory body has a contingent claim is a determination that must be grounded in the facts of each case. Generally, a regulatory body has discretion under environmental legislation to decide how best to ensure that regulatory obligations are met. Although the court should take care to avoid interfering with that discretion, the action of a regulatory body is nevertheless subject to scrutiny in insolvency proceedings.

V.  Application

[49]                   I now turn to the application of the principles discussed above to the case at bar. This case does not turn on whether the Province is the creditor of an obligation or whether damage had occurred as of the relevant date. Those requirements are easily satisfied, since the Province had identified itself as a creditor by resorting to EPA enforcement mechanisms and since the damage had occurred before the time of the CCAA proceedings. Rather, the issue centres on the third requirement: that the orders meet the criterion for admission as a pecuniary claim. The claim was contingent to the extent that the Province had not yet formally exercised its power to ask for the payment of money. The question is whether it was sufficiently certain that the orders would eventually result in a monetary claim. To the CCAA judge, there was no doubt that the answer was yes.

[50]                   The Province’s exercise of its legislative powers in enacting the Abitibi Act created a unique set of facts that led to the orders being issued. The seizure of Abitibi’s assets by the Province, the cancellation of all outstanding water and hydroelectric contracts between Abitibi and the Province, the cancellation of pending legal proceedings by Abitibi in which it sought the reimbursement of several hundreds of thousands of dollars, and the denial of any compensation for the seized assets and of legal redress are inescapable background facts in the judge’s review of the EPA Orders.

[51]                   The CCAA judge did not elaborate on whether it was sufficiently certain that the Minister would perform the remediation work and therefore make a monetary claim. However, most of his findings clearly rest on a positive answer to this question. For example, his finding that “[i]n all likelihood, the pith and substance of the EPA Orders is an attempt by the Province to lay the groundwork for monetary claims against Abitibi, to be used most probably as an offset in connection with Abitibi’s own NAFTA claims for compensation” (para. 178), is necessarily based on the premise that the Province would most likely perform the remediation work. Indeed, since monetary claims must, both at common law and in civil law, be mutual for set-off or compensation to operate, the Province had to have incurred costs in doing the work in order to have a claim that could be set off against Abitibi’s claims.

[52]                   That the judge relied on an implicit finding that the Province would most likely perform the work and make a claim to offset its costs is also shown by the confirmation he found in the declaration by the Minister that the Province was attempting to assess the cost of doing remediation work Abitibi had allegedly left undone and that in the Province’s assessment, “at this point in time, there would not be a net payment to Abitibi” (para. 181).

[53]                   The CCAA judge’s reasons not only rest on an implicit finding that the Province would most likely perform the work, but refer explicitly to facts that support this finding. To reach his conclusion that the EPA Orders were monetary in nature, the CCAA judge relied on the fact that Abitibi’s operations were funded through debtor-in-possession financing and its access to funds was limited to ongoing operations. Given that the EPA Orders targeted sites that were, for the most part, no longer in Abitibi’s possession, this meant that Abitibi had no means to perform the remediation work during the reorganization process.

[54]                   In addition, because Abitibi lacked funds and no longer controlled the properties, the timetable set by the Province in the EPA Orders suggested that the Province never truly intended that Abitibi was to perform the remediation work required by the orders. The timetable was also unrealistic. For example, the orders were issued on November 12, 2009 and set a deadline of January 15, 2010 to perform a particular act, but the evidence revealed that compliance with this requirement would have taken close to a year.

[55]                   Furthermore, the judge relied on the fact that Abitibi was not simply designated a “person responsible” under the EPA, but was intentionally targeted by the Province. The finding that the Province had targeted Abitibi was drawn not only from the timing of the EPA Orders, but also from the fact that Abitibi was the only person designated in them, whereas others also appeared to be responsible — in some cases, primarily responsible — for the contamination. For example, Abitibi was ordered to do remediation work on a site it had surrendered more than 50 years before the orders were issued; the expert report upon which the orders were based made no distinction between Abitibi’s activities on the property, on which its source of power had been horse power, and subsequent activities by others who had used fuel-powered vehicles there. In the judge’s opinion, this finding of fact went to the Province’s intent to establish a basis for performing the work itself and asserting a claim against Abitibi.

[56]                   These reasons — and others — led the CCAA judge to conclude that the Province had not expected Abitibi to perform the remediation work and that the “intended, practical and realistic effect of the EPA Orders was to establish a basis for the Province to recover amounts of money to be eventually used for the remediation of the properties in question” (para. 211). He found that the Province appeared to have in fact taken some steps to liquidate the claims arising out of the EPA Orders.

[57]                   In the end, the judge found that there was definitely a claim that “might” be filed, and that it was not left to “the subjective choice of the creditor to hold the claim in its pocket for tactical reasons” (para. 227).  In his words, the situation did not involve a “detached regulator or public enforcer issuing [an] order for the public good” (at para. 175), and it was “the hat of a creditor that best [fit] the Province, not that of a disinterested regulator” (para. 176).

[58]                   In sum, although the analytical framework used by Gascon J. was driven by the facts of the case, he reviewed all the legal principles and facts that needed to be considered in order to make the determination in the case at bar.  He did at times rely on indicators that are unique and that do not appear in the analytical framework I propose above, but he did so because of the exceptional facts of this case. Yet, had he formulated the question in the same way as I have, his conclusion, based on his objective findings of fact, would have been the same.  Earmarking money may be a strong indicator that a province will perform remediation work, and actually commencing the work is the first step towards the creation of a debt, but these are not the only considerations that can lead to a finding that a creditor has a monetary claim. The CCAA judge’s assessment of the facts, particularly his finding that the EPA Orders were the first step towards performance of the remediation work by the Province, leads to no conclusion other than that it was sufficiently certain that the Province would perform remediation work and therefore fall within the definition of a creditor with a monetary claim.

VI. Conclusion

[59]                   In sum, I agree with the Chief Justice that, as a general proposition, an environmental order issued by a regulatory body can be treated as a contingent claim, and that such a claim can be included in the claims process if it is sufficiently certain that the regulatory body will make a monetary claim against the debtor. Our difference of views lies mainly in the applicable threshold for including contingent claims and in our understanding of the CCAA judge’s findings of fact.

[60]                   With respect to the law, the Chief Justice would craft a standard specific to the context of environmental orders by requiring a “likelihood approaching certainty” that the regulatory body will perform the remediation work. She finds that this threshold is justified because “remediation may cost a great deal of money” (para. 22). I acknowledge that remediating pollution is often costly, but I am of the view that Parliament has borne this consideration in mind in enacting provisions specific to environmental claims. Moreover, I recall that in this case, the Premier announced that the remediation work would be performed at no net cost to the Province. It was clear to him that the Abitibi Act would make it possible to offset all the related costs.

[61]                   Thus, I prefer to take the approach generally taken for all contingent claims. In my view, the CCAA court is entitled to take all relevant facts into consideration in making the relevant determination. Under this approach, the contingency to be assessed in a case such as this is whether it is sufficiently certain that the regulatory body will perform remediation work and be in a position to assert a monetary claim.

[62]                   Finally, the Chief Justice would review the CCAA court’s findings of fact. I would instead defer to them. On those findings, applying any legal standard, be it the one proposed by the Chief Justice or the one I propose, the Province’s claim is monetary in nature and its motion for a declaration exempting the EPA Orders from the claims procedure order was properly dismissed.

[63]                   For these reasons, I would dismiss the appeal with costs.

 

The following are the reasons delivered by

 

The Chief Justice —

 

1.         Overview

[64]                   The issue in this case is whether orders made under the Environmental Protection Act, S.N.L. 2002, c. E-14.2 (“EPA”) by the Newfoundland and Labrador Minister of Environment and Conservation (the “Minister”) requiring a polluter to clean up sites (the “EPA Orders”) are monetary claims that can be compromised in corporate restructuring under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”). If they are not claims that can be compromised in restructuring, the Abitibi respondents (“Abitibi”) will still have a legal obligation to clean up the sites following their emergence from restructuring.  If they are such claims, Abitibi will have emerged from restructuring free of the obligation, able to recommence business without remediating the properties it polluted, the cost of which will fall on the Newfoundland and Labrador public.

[65]                   Remediation orders made under a province’s environmental protection legislation impose ongoing regulatory obligations on the corporation required to clean up the pollution.  They are not monetary claims.  In narrow circumstances, specified by the CCAA, these ongoing regulatory obligations may be reduced to monetary claims, which can be compromised under CCAA proceedings.  This occurs where a province has done the work, or where it is “sufficiently certain” that it will do the work.  In these circumstances, the regulatory obligation would be extinguished and the province would have a monetary claim for the cost of remediation in the CCAA proceedings.  Otherwise, the regulatory obligation survives the restructuring.

[66]                   In my view, the orders for remediation in this case, with a minor exception, are not claims that can be compromised in restructuring.  On one of the properties, the Minister did emergency remedial work and put other work out to tender.  These costs can be claimed in the CCAA proceedingsHowever, with respect to the other properties, on the evidence before us, the Minister has neither done the clean-up work, nor is it sufficiently certain that he or she will do so.  The Province of Newfoundland and Labrador (the “Province”) retained a number of options, including requiring Abitibi to perform the remediation if it successfully emerged from the CCAA restructuring.

[67]                   I would therefore allow the appeal and grant the Province the declaration it seeks that Abitibi is still subject to its obligations under the EPA following its emergence from restructuring, except for work done or tendered for on the Buchans site.

2.  The Proceedings Below

[68]                   The CCAA judge took the view that the Province issued the EPA Orders, not in order to make Abitibi remediate, but as part of a money grab.  He therefore concluded that the orders were monetary and financial in nature and should be considered claims that could be compromised under the CCAA (2010 QCCS 1261, 68 C.B.R. (5th) 1).  The Quebec Court of Appeal denied leave to appeal on the ground that this “factual” conclusion could not be disturbed (2010 QCCA 965, 68 C.B.R. (5th) 57).

[69]                   The CCAA judge’s stark view that an EPA obligation can be considered a monetary claim capable of being compromised simply because (as he saw it) the Province’s motive was money, is no longer pressed.  Whether an EPA order is a claim under the CCAA depends on whether it meets the requirements for a claim under that statute.  That is the only issue to be resolved.  Insofar as this determination touches on the division of powers, I am in substantial agreement with my colleague Deschamps J., at paras. 18-19.

3.  The Distinction Between Regulatory Obligations and Claims under the CCAA

[70]                   Orders to clean up polluted property under provincial environmental protection legislation are regulatory orders.  They remain in effect until the property has been cleaned up or the matter otherwise resolved.

[71]                   It is not unusual for corporations seeking to restructure under the CCAA to be subject to a variety of ongoing regulatory orders arising from statutory schemes governing matters like employment, energy conservation and the environment.  The corporation remains subject to these obligations as it continues to carry on business during the restructuring period, and remains subject to them when it emerges from restructuring unless they have been compromised or liquidated.

[72]                   The CCAA, like the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) draws a fundamental distinction between ongoing regulatory obligations owed to the public, which generally survive the restructuring, and monetary claims that can be compromised.

[73]                   This distinction is also recognized in the jurisprudence, which has held that regulatory duties owed to the public are not “claims” under the BIA, nor, by extension, under the CCAA.  In Panamericana de Bienes y Servicos S.A. v. Northern Badger Oil & Gas Ltd. (1991), 81 Alta. L.R. (2d) 45, the Alberta Court of Appeal held that a receiver in bankruptcy must comply with an order from the Energy Resources Conservation Board to comply with well abandonment requirements.  Writing for the court, Laycraft C.J.A. said the question was whether the Bankruptcy Act “requires that the assets in the estate of an insolvent well licensee should be distributed to creditors leaving behind the duties respecting environmental safety . . . as a charge to the public” (para. 29).  He answered the question in the negative:

The duty is owed as a public duty by all the citizens of the community to their fellow citizens.  When the citizen subject to the order complies, the result is not the recovery of money by the peace officer or public authority, or of a judgement for money, nor is that the object of the whole process. Rather, it is simply the enforcement of the general law. The enforcing authority does not become a “creditor” of the citizen on whom the duty is imposed.  [Emphasis added, para. 33]

[74]                   The distinction between regulatory obligations under the general law aimed at the protection of the public and monetary claims that can be compromised in CCAA restructuring or bankruptcy is a fundamental plank of Canadian corporate law.  It has been repeatedly acknowledged: Lamford Forest Products Ltd. (Re) (1991), 86 D.L.R. (4th) 534; Re Shirley (1995), 129 D.L.R. (4th) 105 (Ont. Ct. (Gen. Div.)), at p. 109; Husky Oil Operations Ltd. v. Minister of National Revenue, [1995] 3 S.C.R. 453, at para. 146, per Iacobucci J. (dissenting).  As Farley J. succinctly put it in Air Canada Re [Regulators’ motions], (2003), 28 C.B.R. (5th) 52 (Ont. S.C.J.), at para. 18: “Once [the company] emerges from these CCAA proceedings (successfully one would hope), then it will have to deal with each and every then unresolved [regulatory] matter.”

[75]                   Recent amendments to the CCAA confirm this distinction.  Section 11.1(2) now explicitly provides that, except to the extent a regulator is enforcing a payment obligation, a general stay does not affect a regulatory body’s authority in relation to a corporation going through restructuring.  The CCAA court may only stay specific actions or suits brought by a regulatory body, and only if such action is necessary for a viable compromise to be reached and it would not be contrary to the public interest to make such an order (s. 11.1(3)).

[76]                   Abitibi argues that another amendment to the CCAA, s. 11.8(9), treats ongoing regulatory duties owed to the public as claims, and erases the distinction between the two types of obligation:  see General Chemical Canada Ltd., (Re), 2007 ONCA 660, 228 O.A.C. 385, per Goudge J.A., relying on s. 14.06(8) of the BIA (the equivalent of s. 11.8(9) of the CCAA).  With respect, this reads too much into the provision.  Section 11.8(9) of the CCAA refers only to the situation where a government has performed remediation, and provides that the costs of the remediation become a claim in the restructuring process even where the environmental damage arose after CCAA proceedings have begun.  As stated in Strathcona County v. PriceWaterhouseCoopers Inc., 2005 ABQB 559, 47 Alta. L.R. (4th) 138, per Burrows J., the section “does not convert a statutorily imposed obligation owed to the public at large into a liability owed to the public body charged with enforcing it” (para. 42).

4.         When Does a Regulatory Obligation Become a Claim Under the CCAA?

[77]                   This brings us to the heart of the question before us: when does a regulatory obligation imposed on a corporation under environmental protection legislation become a “claim” provable and compromisable under the CCAA?

[78]                   Regulatory obligations are, as a general proposition, not compromisable claims.  Only financial or monetary claims provable by a “creditor” fall within the definition of “claim” under the CCAA.  “Creditor” is defined as “a person having a claim …” (BIA s. 2). Thus, the identification of a “creditor” hangs on the existence of a “claim”.  Section 12(1) of the CCAA defines “claim” as “any indebtedness, liability or obligation … that … would be a debt provable in bankruptcy”, which is accepted as confined to obligations of a financial or monetary nature.

[79]                   The CCAA does not depart from the proposition that a claim must be financial or monetary.  However, it contains a scheme to deal with disputes over whether an obligation is a monetary obligation as opposed to some other kind of obligation.

[80]                   Such a dispute may arise with respect to environmental obligations of the corporation. The CCAA recognizes three situations that may arise when a corporation enters restructuring.

[81]                   The first situation is where the remedial work has not been done (and there is no “sufficient certainty” that the work will be done, unlike the third situation described below). In this situation, the government cannot claim the cost of remediation: see s. 102(3) of the EPA.  The obligation of compliance falls in principle on the monitor who takes over the corporation’s assets and operations. If the monitor remediates the property, he can claim the costs as costs of administration. If he does not wish to do so, he may obtain a court order staying the remediation obligation or abandon the property: s. 11.8(5) CCAA (in which case costs of remediation shall not rank as costs of administration: s. 11.8(7)).  In this situation, the obligation cannot be compromised.

[82]                   The second situation is where the government that has issued the environmental protection order moves to clean up the pollution, as the legislation entitles it to do.  In this situation, the government has a claim for the cost of remediation that is compromisable in the CCAA proceedings.  This is because the government, by moving to clean up the pollution, has changed the outstanding regulatory obligation owed to the public into a financial or monetary obligation owed by the corporation to the government.  Section 11.8(9), already discussed, makes it clear that this applies to damage after the CCAA proceedings commenced, which might otherwise not be claimable as a matter of timing.

[83]                   A third situation may arise: the government has not yet performed the remediation at the time of restructuring, but there is “sufficient certainty” that it will do so.  This situation is regulated by the provisions of the CCAA for contingent or future claims.  Under the CCAA, a debt or liability that is contingent on a future event may be compromised.

[84]                   It is clear that a mere possibility that work will be done does not suffice to make a regulatory obligation a contingent claim under the CCAA.  Rather, there must be “sufficient certainty” that the obligation will be converted into a financial or monetary claim to permit this.  The impact of the obligation on the insolvency process is irrelevant to the analysis of contingency.  The future liabilities must not be “so remote and speculative in nature that they could not properly be considered contingent claims”: Confederation Treasury Services Ltd. (Bankrupt) Re (1997) 96 O.A.C. 75 (para. 4).

[85]                   Where environmental obligations are concerned, courts to date have relied on a high degree of probability verging on certainty that the government will in fact step in and remediate the property.  In Anvil Range Mining Corp., Re  (2001), 25 C.B.R. (4th) 1 (Ont. S.C.J.), Farley J. concluded that a contingent claim was established where the money had already been earmarked in the budget for the remediation project.  He observed that “there appears to be every likelihood to a certainty that every dollar in the budget for the year ending March 31, 2002 earmarked for reclamation will be spent” (para. 15 (emphasis added)).  Similarly, in Shirley (Re), Kennedy J. relied on the fact that the Ontario Minister of Environment had already entered the property at issue and commenced remediation activities to conclude that “[a]ny doubt about the resolve of the MOE’s intent to realize upon its authority ended when it began to incur expense from operations” (p. 110).

[86]                   There is good reason why “sufficient certainty” should be interpreted as requiring “likelihood approaching certainty” when the issue is whether ongoing environmental obligations owed to the public should be converted to contingent claims that can be expunged or compromised in the restructuring process.  Courts should not overlook the obstacles governments may encounter in deciding to remediate environmental damage a corporation has caused.  To begin with, the government’s decision is discretionary and may be influenced by any number of competing political and social considerations.  Furthermore, remediation may cost a great deal of money.  For example, in this case, the CCAA court found that at a minimum the remediation would cost in the “mid-to-high eight figures” (at para. 81), and could indeed cost several times that.  In concrete terms, the remediation at issue in this case may be expected to meet or exceed the entire budget of the Minister ($65 million) for 2009. Not only would this be a massive expenditure, but it would also likely require the specific approval of the Legislature and thereby be subject to political uncertainties.  To assess these factors and determine whether all this will occur would embroil the CCAA judge in social, economic and political considerations — matters which are not normally subject to judicial consideration: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 74.  It is small wonder, then, that courts assessing whether it is “sufficiently certain” that a government will clean up pollution created by a corporation have insisted on proof of likelihood approaching certainty.

[87]                   In this case, as will be seen, apart from the Buchans property, the record is devoid of any evidence capable of establishing that it is “sufficiently certain” that the Province will itself remediate the properties.  Even on a more relaxed standard than the one adopted in similar cases to date, the evidence in this case would fail to establish that remediation is “sufficiently certain”.

5.  The Result in this Case

[88]                   Five different sites are at issue in this case.  The question in each case is whether the Minister has already remediated the property (making it to that extent an actual claim), or if not, whether it is “sufficiently certain” that he or she will remediate the property, permitting it to be considered a contingent claim.

[89]                   The Buchans site posed immediate risks to human health as a consequence of high levels of lead and other contaminants in the soil, groundwater, surface water and sediment.  There was a risk that the wind would disperse the contamination, posing a threat to the surrounding population.  Lead has been found in residential areas of Buchans and adults tested in the town had elevated levels of lead in their blood.  In addition, a structurally unsound dam at the Buchans site raised the risk of contaminating silt entering the Exploits and Buchans rivers.

[90]                   The Minister quickly moved to address the immediate concern of the unsound dam and put out a request for tenders for other measures that required immediate action at the Buchans site. Money expended is clearly a claim under the CCAA.  I am also of the view that the work for which the request for tenders was put out meets the “sufficiently certain” standard and constitutes a contingent claim.

[91]                   Beyond this, it has not been shown that it is “sufficiently certain” that the Province will do the remediation work to permit Abitibi’s ongoing regulatory obligations under the EPA Orders to be considered contingent debts.  The same applies to the other properties, on which no work has been done and no requests for tender to do the work initiated.

[92]                   Far from being “sufficiently certain”, there is simply nothing on the record to support the view that the Province will move to remediate the remaining properties.  It has not been shown that the contamination poses immediate health risks, which must be addressed without delay.  It has not been shown that the Province has taken any steps to do any work.  And it has not been shown that the Province has set aside or even contemplated setting aside money for this work.  Abitibi relies on a statement by the then-Premier in discussing the possibility that the Province would be obliged to compensate Abitibi for expropriation of some of the properties, to the effect that “there would not be a net payment to Abitibi” (R.F. at para. 12).  Apart from the fact that the Premier was not purporting to state government policy, the statement simply does not say that the Province would do the remediation.  The Premier may have simply been suggesting that outstanding environmental liabilities made the properties worth little or nothing, obviating any net payment to Abitibi.

[93]                   My colleague Deschamps J. concludes that the findings of the CCAA court establish that it was “sufficiently certain” that the Province would remediate the land, converting Abitibi’s regulatory obligations under the EPA Orders to contingent claims that can be compromised under the CCAA.  With respect, I find myself unable to agree.

[94]                   The CCAA judge never asked himself the critical question of whether it was “sufficiently certain” that the Province would do the work itself. Essentially, he proceeded on the basis that the EPA Orders had not been put forward in a sincere effort to obtain remediation, but were simply a money grab.  The CCAA judge buttressed his view that the Province’s regulatory orders were not sincere by opining that the orders were unenforceable (which if true would not prevent new EPA orders) and by suggesting that the Province did not want to assert a contingent claim, since this might attract a counterclaim by Abitibi for the expropriation of the properties (something that may be impossible due to Abitibi’s decision to take the expropriation issue to NAFTA (the North American Free Trade Agreement Between the Government of the United Mexican States and the Government of the United States of America, Can.T.S. 1994 No. 2), excluding Canadian courts.) In any event, it is clear that the CCAA judge, on the reasoning he adopted, never considered the question of whether it was “sufficiently certain” that the Province would remediate the properties.  It follows that the CCAA judge’s conclusions cannot support the view that the outstanding obligations are contingent claims under the CCAA.

[95]                   My colleague concludes:

[The CCAA judge] did at times rely on indicators that are unique and that do not appear in the analytical framework I propose above, but he did so because of the exceptional facts of this case.  Yet, had he formulated the question in the same way as I have, his conclusion, based on his objective findings of fact would have been same. … The CCAA judge’s assessment of the facts … leads to no conclusion other than that it was sufficiently certain that the Province would perform remediation work and therefore fall within the definition of a creditor with a monetary claim. [Emphasis added, para. 58].

 

[96]                   I must respectfully confess to a less sanguine view.  First, I find myself unable to decide the case on what I think the CCAA judge would have done had he gotten the law right and considered the central question.  In my view, his failure to consider that question requires this Court to answer it in his stead on the record before us: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 35.  But more to the point, I see no objective facts that support, much less compel, the conclusion that it is “sufficiently certain” that the Province will move to itself remediate any or all of the pollution Abitibi caused.  The mood of the regulator in issuing remediation orders, be it disinterested or otherwise, has no bearing on the likelihood that the Province will undertake such a massive project itself.  The Province has options.  It could, to be sure, opt to do the work.  Or it could await the result of Abitibi’s restructuring and call on it to remediate once it resumed operations. It could even choose to leave the site contaminated.  There is nothing in the record that makes the first option more probable than the others, much less establishes “sufficient certainty” that the Province will itself clean up the pollution, converting it to a debt.

[97]                   I would allow the appeal and issue a declaration that Abitibi’s remediation obligations under the EPA Orders do not constitute claims compromisable under the CCAA, except for work done or tendered for on the Buchans site.

 

The following are the reasons delivered by

 

LeBel J.  —

[98]                   I have read the reasons of the Chief Justice and Deschamps J. They agree that a court overseeing a proposed arrangement under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (“CCAA”), cannot relieve debtors of their regulatory obligations. The only regulatory orders that can be subject to compromise are those which are monetary in nature. My colleagues also accept that contingent environmental claims can be liquidated and compromised if it is established that the regulatory body would remediate the environmental contamination itself, and hence turn the regulatory order into a monetary claim.

[99]                   At this point, my colleagues disagree on the proper evidentiary test with respect to whether the government would remediate the contamination. In the Chief Justice’s opinion, the evidence must show that there is a “likelihood approaching certainty” that the province would remediate the contamination itself (para. 22). In my respectful opinion, this is not the established test for determining where and how a contingent claim can be liquidated in bankruptcy and insolvency law. The test of “sufficient certainty” described by Deschamps J., which does not look very different from the general civil standard of probability, better reflects how both the common law and the civil law view and deal with contingent claims. On the basis of the test Deschamps J. proposes, I must agree with the Chief Justice and would allow the appeal.

[100]                First, no matter how I read the CCAA court’s judgment (2010 QCCS 1261, 68 C.B.R. (5th) 1), I find no support for a conclusion that it is consistent with the principle that the CCAA does not apply to purely regulatory obligations, or that the court had evidence that would satisfy the test of “sufficient certainty” that the province of Newfoundland and Labrador (the “Province”) would perform the remedial work itself.

[101]                In my view, the CCAA court was concerned that the arrangement would fail if the Abitibi respondents (“Abitibi”) were not released from their regulatory obligations in respect of pollution. The CCAA court wanted to eliminate the uncertainty that would have clouded the reorganized corporations’ future. Moreover, its decision appears to have been driven by an opinion that the Province had acted in bad faith in its dealings with Abitibi both during and after the termination of its operations in the Province. I agree with the Chief Justice that there is no evidence that the Province intends to perform the remedial work itself. In the absence of any other evidence, an off-hand comment made in the legislature by a member of the government hardly satisfies the “sufficient certainty” test. Even if the evidentiary test proposed by my colleague Deschamps J. is applied, this Court can legitimately disregard the CCAA court’s finding as the Chief Justice proposes, since it did not rest on a sufficient factual foundation.

[102]                For these reasons, I would concur with the disposition proposed by the Chief Justice.