Viewest Files CCAA Proceeding

Viewest Corp. was formerly a public company in the construction supply business that was the subject of a leveraged buyout by the Onex Group in March 2000. Viewest was integrated into a larger group of North American Onex group subsidiaries in the construction supply business of which the senior subsidiary was US-based Magnatrax Corp. The Onex Group buyout of Vicwest buyout was effected for roughly $600 million using the assets of the target Vicwest and assets of Magnatrax to fund part of the acquisition price. The contested issues in the Creditors’ Companies Arrangement Act (CCAA) process focused on the fairness of the plan/plan process and in the particular.

• the use of the CCAA to grant releases to the Onex Group and existing and prior management in connection with the leveraged buyout transaction and certain subsequent transactions, which were alleged to have rendered the companies insolvent
• the extent of notice required to be given to stakeholders of CCAA processes;and
• the treatment and classification of under-funded pensions and retiree benefit claims in CCAA processes. In particular, the pension claimants sought to be classified separately from the general unsecured creditors and debentures

The court slowed down the pre-pack process timetable to increase the amount of notice being given to creditors. After a three day CCAA plan sanction hearing, the court approved the Vicwest plan including the broad releases and the classification of certain pension claimants as general unsecured creditors, although the court confirmed that certain causes of action would survive the plan. Appeals were launched, but were settled in advance of being heard, permitting the CCAA plan, which restructured the company by converting debt to equity, to be implemented in September 30, 2003, effectively transferring control of the company to its debenture holders. Total Canadian debt was $140 million.

The debtor companies were Vicwest, Westeel Ltd., Dumbarton Construction Ltd., 153810 Canada Inc., Cancom Equity Fund, CEF Limited Partnership No. 2. 359856 Alberta Ltd., 745674 Ontario Ltd., and 1466838 Ontario Inc.

Vicwest was represented by R. Shayne Kukulowicz of Fraser Milner Casgrain LLP. The Jaico pension claimants (Howard Batten, Peter Wood, Leonard Beach and Stanley Knowles) were represented by Cassels Brock & Blackwell LLP, with a team that included Christopher Besant, David Ward, Marco Filice and Joseph Bellissimo.

CIBC, as agent for the Canadian bank lenders, was represented by Paul Basso of Gowling LaFleur Henderson LLP; and for the US lenders by Douglas Harrison of Stikeman Elliot LLP. TD Bank, Bank One NA. Canada Branch, and Comerica Bank, Canada Branch, were represented by Sheryl Seigel of Fasken Martineau DuMoulin LLP.

The noteholder committee was represented by Bennett Jones LLP, with a team that included S. Richard Orzy. Kevin Zych and Robert Staley. Onex Corp was represented by Fred Myers of Goodmans, LLP.

Deloitte and Touche Inc. was represented by James Gage of McCarthy Tetrault LLP. St. Paul Guarantee Insurance Company was represented by Borden Ladner Gervais LLP, with a team that included Roger MacLellan and Roger Jaipargas.

Vicwest’s Ontario landlord was represented by Ashley Taylor of Stikeman Elliot. Onex Corp. was represented by Robert Chadwick of Goodmans LLP.

Evar Carlson was represented by Andrew Harrison of Borden Ladner Gervais. Vic Hepburn was represented by Matthew Certosimo also of Borden Ladner Gervais. Certain retiree benefits claimants (Dale Kerry, Brian Jamieson, Vic Hepburn, Michael Fasken, Robert Dyburgh, R.H. Weir and Janice Sara Maunder) were represented by Andrew Hatmay of Koskie Minsky.

Magnatrax’s official committee of unsecured creditors was represented by Kenneth Kallish of Monden Gross Graftstein & Greenstein LLP. Magnatrax was represented by James Doris of Davies Ward Phillips and Vineberg LLP.