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Sam Babe

Partner Admitted to the Ontario Bar: 2004

Sam brings a level-headed approach to his restructuring and insolvency practice, providing calm and considered representation and advice. A creative thinker, he is comfortable crafting new solutions to achieve his clients’ objectives. With an M.B.A. and a passion for business, Sam offers well-rounded strategic advice.

Sam is a member of the firm’s Financial Services group. He practises in the area of restructuring and insolvency law and is active in both the litigation and transactional aspects of enforcements, receiverships, bankruptcies and Companies' Creditors Arrangement Act proceedings. Sam also practises in the area of commercial finance with a focus on asset-based lending and counsels banks and other creditors, receivers, trustees, monitors, debtors and purchasers.

Representative Matters

Counsel to the successful secured lender in Bank of Montreal v. Kappeler Masonry Corporation, et. al. (2017 ONSC 6760), wherein the Ontario Superior Court of Justice (Commercial List) followed and expanded on its earlier decision in Royal Bank of Canada v. Atlas Block Co. Limited (see below), confirming that commingling of construction receipts is fatal to Construction Lien Act (Ontario) deemed trust claims in bankruptcy. Kappeler Masonry and Atlas Block are the only Ontario cases where secured creditors have successfully challenged the priority of deemed construction trust claims in bankruptcy.

Counsel to MRP Retail and MRP Family Retail Inc., owners of the 33-store “Jean Machine” retail chain, in their Bankruptcy and Insolvency Act proposal proceedings.

Counsel to the DIP lender and secured creditor in the Companies’ Creditors Arrangement Act proceedings of Ben Moss Jewellers and its 66-store national retail chain as well as in the receivership of the affiliated JSN Jewellery Group and its international jewellery manufacturing and wholesale business.  In a related personal guarantee action against the owner, we successfully had the defense and counterclaim of the guarantor struck out in the precedent-setting Salus Capital Partners, LLC v. Shilon, 2016 ONSC 7799 (Ont. S.C.J. [Commercial List]).

Canadian counsel to the Horsehead Group of companies in its US Chapter 11 proceedings and to its Canadian affiliate, Zochem Inc., in its Companies’ Creditors Arrangement Act Part IV foreign recognizing proceedings.

Counsel to KPS Capital Partners LP it its concurrent final round bids for the assets of US Steel Canada Inc. and Essar Steel Algoma, in their respective Companies’ Creditors Arrangement Act proceedings.

Counsel to Sherson Group Inc., owner of the “Nine West” brand 150-store retail and wholesale business in Canada, in its Bankruptcy and Insolvency Act proposal proceedings.

Counsel to the DIP lender in the Companies’ Creditors Arrangement Act proceedings of Comark Inc. and its 353-store national Bootlegger, Cleo and Ricki’s clothing store business.  This proceeding was the first time in Ontario that a DIP facility with what is commonly referred to as a “creeping roll-up” was approved under the amended Companies’ Creditors Arrangement Act.  The ultimate sale of the business was named Cross Border Restructuring Deal of the Year for 2016 by The M&A Advisor.

Counsel to the DIP lender in the Bankruptcy and Insolvency Act proposal proceedings of the XS Cargo 50-store national discount store chain.

Counsel to the successful secured lender in the precedent-setting Royal Bank of Canada v. Atlas Block Co. Limited, 2014 ONSC 3062 (Ont. S.C.J. [Commercial List]), where it was confirmed that Construction Lien Act (Ontario) deemed trusts do not survive in bankruptcy, reversing decades of practice in Ontario.

Counsel to the applicant secured creditor in the “pre-pack” receivership and sale of Coppley Corp., run in tandem with the HMX Group’s US Chapter 11 proceedings.

Restructuring Counsel for a syndicate of domestic and international lenders to the Ottawa Senators Hockey Club.

Counsel to PCAS Patient Care Automation Services in its Companies’ Creditors Arrangement Act proceedings and going-concern sale.

Counsel to the syndicate DIP lender and purchaser in the Bankruptcy and Insolvency Act proposal proceedings of Arise Solar Inc.

Selected Speaking Engagements

Panellist, “Disputes Arising from Troubled or Failing Construction Projects” at Osgoode Hall Law School Professional Development’s Litigator's Guide to Real Estate, Construction and Leasing Disputes, February 10, 2016.

Panellist, “Reversing the Priorities, Again - When Bankruptcy and Construction Collide: Round 2,” Advocates Society Construction Law Practice Group Teleseminar, October 22, 2015.

Panellist on the legal update panel at the Canadian Association of Insolvency and Restructuring Professionals’ 11th Annual Commercial Insolvency and Restructuring Program, March 31, 2015.

Author/presenter, “The Basics of Drafting a Security Opinion,” presented at the Law Society of Upper Canada’s Commercial Priorities for Real Estate and Business Lawyers continuing professional development program, February 24, 2015.

Panellist, "Royal Bank of Canada v. Atlas Block Co. and Re Iona Contractors Ltd.: Bankruptcy and Construction Collide," Advocates Society Construction Law Practice Group Teleseminar, September 17, 2014.

Selected Publications

Debtor-Creditor Law, Emond Publishing, Toronto, 2015.

"Royal Bank of Canada v. Atlas Block Co. Limited: Ontario Court confirms Statutory Construction Trust does not survive Bankruptcy," National Insolvency Review, August 2014.

“What about Federal Pension Claims? The Status of Pension Benefits Standards Act, 1985 and Pooled Registered Pension Plans Act Deemed Trust Claims in Insolvency,” National Creditor Debtor Review, September 2013.

“After Indalex: Pension Claims under the New CCAA,” National Creditor Debtor Review, June 2013.

Education

  • JD and MBA, University of Toronto, 2003