When Can A CCAA Monitor Bring An Oppression Claim Against A Stakeholder?

Until a court orders otherwise, a monitor appointed under the Companies' Creditors Arrangement Act¹ is a neutral party and may not take sides in favour of one stakeholder over another.

When can a monitor depart from this neutral role and launch litigation that favours certain creditors to the detriment of others? Specifically, under what circumstances can a CCAA monitor act as a "complainant" under the powerful "oppression remedy" provisions of Canadian corporate statutes, arguing that transactions involving the applicant company and its affiliates were oppressive to particular creditors?²

Until last year, no reported case had considered this question. A clear answer is now available thanks to two Ontario decisions, released a day apart in late December 2017. Monitors should not bring oppression actions without court authorization, and such authorization will only be provided in exceptional circumstances.³