Sam Babe

• Recognized in The Canadian Legal Lexpert Directory in Insolvency Litigation and Financial Restructuring

Professional Activities

• Sam is the editor of Collateral Matters, the Aird & Berlis Banking and Insolvency Law Newsletter.

Counsel to BZAM, a leading Canadian cannabis producer, in the acquisition of Final Bell Canada, an end-to-end supply chain system for cannabis brands, from Final Bell Holdings International.

Counsel to 2872802 Ontario Inc., the stalking horse bidder in the sale solicitation process for Datatax Business Services Limited.

Counsel to the successful secured lender in Royal Bank of Canada v. A-1 Asphalt Maintenance Ltd. (2018 ONSC 1123), wherein the Ontario Superior Court of Justice (Commercial List) held that the deemed trust provisions of subsection 8(1)(a) of the Construction Lien Act (Ontario) were not, on their own, sufficient to create a trust recognized in a contractor’s bankruptcy or proposal proceedings. A-1 Asphalt, Kappeler Masonry and Atlas Block (see below) are the only Ontario cases where secured creditors have successfully challenged the priority of deemed construction trust claims in bankruptcy.

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.

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.

Panellist, “Inherent Jurisdiction and Omnibus Orders," Commercial List User Committee, Ontario Bar Association Insolvency Law Section/Ontario Association of Insolvency and Restructuring Professionals Annual Educational and Social Day, September 19, 2022.

Panellist, “Statute Barred Claims,” Ontario Association of Insolvency and Restructuring Professionals Continuing Education Webinar, June 3, 2021.

Author and panellist, “Conduct Developments: Exercise of Judicial Discretion; Duties of Good Faith”, Canadian Association of Insolvency and Restructuring Professionals, 18^th Annual Review of Insolvency Law, February 26, 2021.

Panellist, "Understanding Today’s Vulnerable Businesses: Financial Integrity Pre- & Post-COVID-19," Aird & Berlis LLP's Financial Services Webinar, November 5, 2020.

Author and panellist, “A Taxing Issue - Deemed Trusts and the GST/HST,” Canadian Association of Insolvency and Restructuring Professionals’ 17^th Annual Review of Insolvency Law, February 7, 2020.

Author and panellist, “The Treatment of Builders’ Lien Claims Across Canada,” CBA Insolvency Law Conference, November 8, 2019.

Panellist, “Deemed Trusts: Recent Decisions on Construction Lien Priority in Insolvencies,” Osgoode Hall Law School Professional Development’s The Annual Update in Corporate Insolvency and Restructuring, October 4, 2019.

Panellist, “Construction Trusts: A-1 Asphalt and Competing Perspectives from the Construction and Insolvency Bars,” Ontario Bar Association Construction and Infrastructure Law Section’s annual golf day luncheon CPD program, June 21, 2019.

Panellist, “Disputes Arising from Troubled or Failing Construction Projects,” 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 and 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.

"Asserting Limitation Period Defences in the Bankruptcy Context," Aird & Berlis LLP, September 12, 2023.

" Looking a Stalking Horse in the Mouth: Sale Process Approval Criteria Across Canadian Jurisdictions," Aird & Berlis LLP, April 18, 2023. 

" Virtual Collateral 101: How to Take and Enforce Security Over Cryptocurrencies, Crypto-Assets and Central Bank Digital Currencies,"Aird & Berlis LLP, April 19, 2023. 

“Recent Use of Statutory Discretion and Inherent Jurisdiction in Insolvency and Restructuring”, 18^th Annual Review of Insolvency Law 365, 2020 CanLIIDocs 3608, 2020.

"Debtor and Creditor Bring Competing CCAA and Receivership Applications, NL Court Dismisses Both," Commercial Insolvency Reporter, April 2020.

"Ontario Court Maintains Priority of Receivership Charges Over Construction Trusts," Rebuilding Success, Spring/Summer 2020 (Toronto: Canadian Association of Insolvency and Restructuring Professionals, 2020).

"Provincial Deemed Trusts 30 Years After British Columbia v Henfrey Samson Belair Ltd," in Annual Review of Insolvency Law 2019, Prof. J. Corraini and Hon. D. B. Nixon, eds. (Toronto: Carswell, 2020), at 907.

"Priority of Receivership Charges over Construction Trusts," National Insolvency Review, October 2019.

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.  This seminal article on the priority of federal pension claims in insolvency and restructuring proceedings has featured prominently in leading decisions on the topic, including Bloom Lake, g.p.l. (2015 QCCS 3064), Arrangement relatif à Bloom Lake (2017 QCCS 4057) and ITB Marine Group Ltd. v Northern Transportation Company Limited (2017 BCSC 2007).

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

• JD and MBA, University of Toronto, 2003