Court File No.: CV-16-11409-00CL ONTARIO

SUPERIOR COURT OF JUSTICE COMMERCIAL LIST

BETWEEN:

CANADIAN IMPERIAL BANK OF COMMERCE Applicant

and

URBANCORP (LESLIEVILLE) DEVELOPMENTS INC., URBANCORP (RIVERDALE) DEVELOPMENTS INC., &

URBANCORP (THE BEACH) DEVELOPMENTS INC. Respondents

APPLICATION UNDER SECTION 243 OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C.B-3, AS AMENDED, SECTION 68 OF THE

CONSTRUCTION LIEN ACT, R.S.O. 1990 C. C. 30, AND UNDER SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, C. C. 43

FACTUM OF THE CONSTRUCTION RECEIVER (RE: PARKS LEVY DETERMINATION)

(Returnable June 19, 2019)

June 17, 2019 BLAKE, CASSELS & GRAYDON LLP Barristers & Solicitors 199 Bay Street Suite 4000, Commerce Court West Toronto ON M5L 1A9

Chris Burr — LSO#: 55172H Tel: 416-863-3261 Fax: 416-863-2653 Email: chris.burr@blakes.com

Independent Counsel for Alvarez & Marsal Canada Inc., in its capacity as both Receiver and Manager, and Construction Lien Trustee of the assets, undertakings and property of Urbancorp (Leslieville) Developments Inc., Urbancorp (Riverdale) Developments Inc., and Urbancorp (The Beach) Developments Inc.

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TO: SERVICE LIST

Court File No.: CV-16-11409-00CL ONTARIO

SUPERIOR COURT OF JUSTICE COMMERCIAL LIST

BETWEEN: CANADIAN IMPERIAL BANK OF COMMERCE

Applicant and

URBANCORP (LESLIEVILLE) DEVELOPMENTS INC., URBANCORP (RIVERDALE) DEVELOPMENTS INC., &

URBANCORP (THE BEACH) DEVELOPMENTS INC. Respondents

FACTUM OF THE CONSTRUCTION RECEIVER

(Re: Parks Levy Determination)

PART I - OVERVIEW

1. On May 31, 2016, the. Ontario Superior Court of Justice (the "Court") granted an order

appointing Alvarez & Marsal Canada Inc. as receiver and manager and as construction lien trustee

(collectively, the "Construction Receiver") of all of the assets, undertakings, and property, of

among other companies, Urbancorp (Leslieville) Developments Inc. ("UC Leslieville").

2. Among the Construction Receiver's various activities following its appointment, it

coordinated and oversaw the completion of 55 residential townhouse units (the "Leslieville

Units") at UC Leslieville's Curzon Street project (the "Leslieville Project") in accordance with

Court orders. Completing the Leslieville Project involved a complex Court-approved settlement

among many parties, including individuals who had agreed to purchase the Leslieville Units pre-

construction and pre-receivership, which settlement enabled these pre-construction purchasers to

elect to purchase their Leslieville Units.

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3. In connection with the approval of the construction of the Leslieville Units, the City of

Toronto (the "City") elected to require that the Construction Receiver convey to the City a certain

portion of land, for use as parkland by the City, pursuant to the Planning Act (Ontario) and the

Toronto Municipal Code, The City could have, under the legislation, elected to require the

Construction Receiver to pay the value of the conveyed land in lieu of the conveyance, but it did

not.

4. Between October 18 and 25, 2018, the Construction Receiver closed the sales of the 55

Leslieville Units, including 40 Leslieville Units to purchasers who had opted-in to the Settlement

(as defined below) (the "Opt-In Leslieville Purchasers"). The parkland had previously been

conveyed to the City pursuant to the Planning Act on May 23, 2018.

5. On March 18, 2019 a group of 44 opt-in purchasers of 30 Leslieville Units (the "Certain

Curzon Purchasers") brought a motion (the "Certain Curzon Purchaser Motion") seeking,

among other things, an order directing the Construction Receiver to reimburse the amount of

$471,994.39 that was charged to the Certain Curzon Purchasers by the Construction Receiver on

the closing of their Leslieville Units, as a purchase price adjustment under the applicable purchase

agreements in relation to the cost incurred the UC Leslieville estate as a result of the transfer of

the parkland to the City (the "Parks Levy").

6. The Certain Curzon Purchasers allege that the Parks Levy was not properly charged,

because in their view the applicable purchase agreements only require them to pay their

proportionate share of any cash-in-lieu required by the City, and not the cost to the UC Leslieville

estate incurred by the conveyance of the parkland itself.

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7. The Construction Receiver and the Certain Curzon Purchasers agree that the issue for this

Court to determine on this Certain Curzon Purchaser Motion is whether the Parks Levy was

properly charged by the Construction Receiver to the Certain Curzon Purchasers. In order to

answer this question, the Court must determine whether "parks levy" means (i) both the

conveyance of land to a municipality pursuant to the Planning Act and the payment of cash-in-lieu

of such a conveyance, or (ii) only the payment of cash-in-lieu of conveyance.

8. In the Construction Receiver's view, "parks levy" means both conveyance of land and

payment of cash-in-lieu, the Parks Levy was properly and correctly charged pursuant to the terms

of the applicable agreements, and there is no legal or equitable basis for its return.

9. The Certain Curzon Purchasers' interpretation of the provision of their agreements

pursuant to which the Parks Levy was charged is commercially and factually unsupportable,

contrary to the definition of the word "levy", inconsistent with applicable jurisprudence and, if

accepted as correct, would lead to bizarre and unpredictable commercial results.

10. In the Construction Receiver's respectful view, the Certain Curzon Purchaser Motion ought

to be dismissed.

PART II - FACTS

11. The facts relevant to this motion are set out in greater detail in the Second Report of the

Construction Receiver, dated April 21, 2017 (the "Second Report"), the Agreed Statement of

Facts, dated June 11, 2019 (the "Agreed Statement of Facts"), the Ninth Report of the

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Construction Receiver, dated June 12, 2019 (the "Ninth Report"), and the Supplement to the

Ninth Report of the Construction Receiver, dated June 12, 2019 (the "Supplemental Report"). 1

History of the Leslieville Project & Parkland Dedication

12. As of the date of the Construction Receiver's appointment on May 31, 2016, all but one of

the 55 Leslieville Units had been sold by UC Leslieville pursuant to agreements of purchase and

sale (the "Original Leslieville Purchaser APS") between UC Leslieville and each purchaser (the

"Original Leslieville Purchasers").2 The Leslieville Units were substantially complete when the

Construction Receiver was appointed, subject to the finalization of certain interior, landscaping

and utility work.3

13. Long before the Construction Receiver's appointment, the City notified UC Leslieville in

a letter dated January 28, 2013 (the "January Letter") that it required UC Leslieville to post a

letter of credit to secure UC Leslieville's obligations to the City under the Planning Act and the

Toronto Municipal Code.4

14. The Planning Act and the Toronto Municipal Code enable the City, as a condition of

approval of a project, to require either a specified proportion of land be conveyed to the City for

parkland use, or to require the payment of an equivalent value of cash-in-lieu of conveyance. The

January Letter did not specify which of the two requirements the City was electing.

1 The Supplemental Report contains exhibits and discussions that the Certain Curzon Purchasers have asserted settlement privilege over. The Supplemental Report will accordingly not be served or filed with the Court, pending either an agreement among the parties regarding admissibility, or direction of the Court. 2 Second Report, at Para. 36.

Ibid. 4 Agreed Statement of Facts, at Para. 17; January Letter, Joint Book of Documents, dated June 11, 2019 ("JBD"), at Tab 2.

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15. UC Leslieville obtained and delivered to the City a letter of credit with the face amount of

$769,280, the amount required by the January Letter, on or about February 12, 2013 (the "Parks

LC").5

16. In January of 2015, UC Leslieville received a notice of approval conditions from the City,

which confirmed that the City would require the conveyance of a certain amount of property as a

condition of its approval of the project (the "Notice of Approval Conditions").6 The Construction

Receiver was thereafter appointed, and the conveyance required by the Notice of Approval

Conditions was reaffirmed in the site plan agreement dated October 23, 2017 between UC

Leslieville (signed on its behalf by the Construction Receiver) and the City.'

17. On November 6, 2017, the UC Leslieville application to develop the project was finally

formally approved, and on May 23, 2018, the Construction Receiver conveyed the specified

amount of property to the City (the "Parkland").8

Terra Firma Motion & Global Settlement

18. Shortly after the Construction Receiver's appointment and before the Leslieville Units

were completed, Terra Firma Capital Corporation ("Terra Firma"), one of UC Leslieville's

secured creditors, brought a motion (the "Terra Firma Motion") seeking a declaration, among

other things, vesting all of UC Leslieville's right, title and interest in the Leslieville Project in

Terra Firma.'

5 Agreed Statement of Facts, 6 Agreed Statement of Facts,

Agreed Statement of Facts, 8 Agreed Statement of Facts, 9 Agreed Statement of Facts,

at Para. 18; Parks LC, JBD, at Tab 3. at Para. 20; Notice of Approval Conditions, JBD, at Tab 4. at Para. 21; Site Plan, JBD, at Tab 5. at Paras. 23 & 24, at Para. 27.

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19. The Terra Firma Motion, if successful, would have prevented the Original Leslieville

Purchasers from closing on their Leslieville Units, and allowed Terra Firma to re-sell them at the

then-market prices, if and when those units were completed.'°

20. This Court deferred the hearing of the Terra Firma Motion in order to allow discussions to

take place between Terra Firma and the key stakeholders, including a subset of purchasers of

Leslieville Units who were represented by Dickinson Wright LLP ("Dickinson Wright"). 1 I

21. Based on the Construction Receiver's records, Dickinson Wright acted for 41 of the 44

Certain Curzon Purchasers, being purchasers of 29 of the 30 Leslieville Units purchased by Certain

Curzon Purchasers.'2

22. The negotiations and discussions to settle the Terra Firma motion were long and protracted,

including 6 chambers appointments. Dickinson Wright filed a responding motion record on behalf

of certain Leslieville Unit purchasers. Cross examinations of Terra Firma's CEO were

conducted.13 A mediation was requested by Dickinson Wright, and ultimately held before Justice

Ground. I4

23. These protracted negotiations resulted in an agreement (the "Settlement") enabling, among

many other things, the Original Leslieville Purchasers to complete the purchases of their

Leslieville Units provided they were prepared to "opt-in" to the Settlement and pay an additional

$255,000, pursuant to a new purchase agreement (each an "Opt-In Leslieville Purchaser

APS"), I5 Between the September 28, 2016 mediation and approval of the Settlement on May 2,

1° Ibid. 11 Agreed Statement of Facts, at Para. 28. 'Ninth Report, at Paras. 24 & 25. 13 Second Report, at Para. 7. 14 Second Report, at Para. 8. 15 Agreed Statement of Facts, at Para. 30.

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2017, over seven months of negotiations took place, including discussions to finalize the Opt-In

Leslieville Purchaser APS.

24. All of the Certain Curzon Purchasers opted-in to the Settlement and executed Opt-In

Leslieville Purchaser APSs.16

The Park Levy Clause

25. The following subsection 7(d)(iii) was included in each Opt-In Leslieville Purchaser APS

executed by each Certain Curzon Purchaser (the "Park Levy Clause"):

(d) The Purchaser shall, in addition to the Purchase Price, pay the following amounts to the Vendor on the Title Transfer Date:

(iii) the amount of any parks levy or any charges pursuant to a Section 37 Agreement (pursuant to the Planning Act), levied, charged or otherwise imposed with respect to the Condominium, the Property or the Unit by any governmental authority, which is equivalent to the common interest allocation attributable to the Unit as set out in Schedule "D" to the Declaration;

The Original Leslieville Purchaser APS contained a provision identical to the Park Levy Clause at

subsection 6(d)(iii).17

New Leslieville Purchasers

26. In total, 15 of the 55 Leslieville Units were purchased by non-Opt-In Leslieville Purchasers

(the "New Leslieville Purchasers", together with the Opt-In Leslieville Purchasers, the

"Leslieville Purchasers"), 13 of which included a cap on certain purchase price closing amounts

(the "New Leslieville Purchaser APS"). This included a cap on the Parks Levy.18

16 Agreed Statement of Facts, at Para. 35. 17 Agreed Statement of Facts, at Paras. 33 & 36. 18 Agreed Statement of Facts, at Paras. 38 & 39.

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Leslieville Unit Closing

27. On the closing of the Leslieville Units, purchase price adjustments and other amounts

charged in respect of the 55 Leslieville Units were a total of approximately $1.3 million (inclusive

of HST). Of this amount, $588,804.10 (plus HST) was charged to the 42 Leslieville Purchasers

without caps, of which $417,694.18 (plus HST) was charged to the Certain Curzon Purchasers on

account of the Parks Levy.19

28. New Leslieville Purchasers who negotiated a cap on their purchase price adjustments paid

less in purchase price adjustments than those that did not negotiate a cap, but paid on average

between $124,000 and $306,000 (being between 14% and 35%) more for the same models of

Leslieville Units that the Opt-In Leslieville Purchasers bought, even taking into account the "top

up" payment of $255,000 paid by Opt-In Leslieville Purchasers as part of the Settlement.2°

29. All of the Certain Curzon Purchasers closed their Leslieville Units and paid the Parks Levy

set out in their applicable statement of adjustment.21

PART III - ISSUES

30. This factum addresses the Issue for Determination, as set out in the Agreed Statement of

Facts:22

19 Agreed Statement of Facts, at Pam. 42 and 43. 20 Ninth Report, at Para. 21. 21 Agreed Statement of Facts, at Paras. 44 & 45. 22 This factum does not address ancillary issues raised in the Certain Curzon Purchasers' evidence that are unrelated to the Issue for Determination, including issues regarding the construction of the Leslieville Units or potential warrantable claims alleged. There are clear forums for these concerns to be raised by the Certain Curzon Purchasers. The Parks Levy motion is not one of them.

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Was the Parks Levy properly charged by the Construction Receiver to the Certain Curzon Purchasers, pursuant to the terms of their respective agreements of purchase and sale?

31. The fundamental question in answering the Issue for Determination is one of interpreting

the Park Levy Clause. Either subsection 7(d)(iii) includes the cost that the UC Leslieville estate

actually incurred in connection with conveying the Parkland to the City, or it includes only the

potential cost that the UC Leslieville estate would have incurred if the City elected to take a cash

payment in lieu of such conveyance. In the Construction Receiver's view, the former interpretation

is clearly the correct one. "Parks levy" means conveyance of land and payment of cash-in-lieu.

32. Because "park levy" includes the cost of conveyance and the cost of the payment of cash-

in-lieu, the Construction Receiver was entitled to charge the cost of the conveyance of the Parkland

in accordance with the applicable provisions in the Opt-In Leslieville Purchaser APS. The Opt-In

Leslieville Purchaser APS is a commercial agreement that was protractedly negotiated by

sophisticated counsel, including counsel acting for virtually all of the Certain Curzon Purchasers,

and was approved by the Court. The answer to the Issue for Determination is therefore affirmative,

and the Certain Curzon Purchaser Motion should be dismissed.

PART IV — LAW AND ARGUMENT

The Opt-In Leslieville Purchaser APS is not a Contract of Adhesion

33. The Opt-In Leslieville Purchaser APS is a commercial document that was highly

negotiated by sophisticated counsel for numerous parties, including Dickinson Wright on behalf

of the vast majority of Certain Curzon Purchasers, over the course of several months, following a

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mediation requested by Dickinson Wright and conducted by Mr. Justice Ground.23 Indeed, the

breadth and complexity of the negotiations of the Opt-In Leslieville Purchaser APS proved

significantly more extensive and took much longer than all parties originally anticipated.24

34. Once the Opt-In Leslieville Purchaser APS was settled among the parties, including

Dickinson Wright, it was approved by Mr. Justice Newbould25 at a hearing on notice to all affected

parties, including Dickinson Wright, who attended the hearing26 and consented to the approval.27

35. The Opt-In Leslieville Purchaser APS is categorically not a contract of adhesion, contrary

to the assertion of the Certain Curzon Purchasers. There is accordingly no applicable principle of

law that requires the Opt-In Leslieville Purchaser APS to be interpreted in favour of the Certain

Curzon Purchasers.

"Parks Levy" Means Conveyance of Land and Payment of Cash-in-Lieu

36. It is a fundamental principle of contractual interpretation that when interpreting a contract,

the court aims to determine the intentions of the parties in accordance with the language used in

the written document and presumes that the parties have intended what they have said.28

37. The Park Levy Clause states in clear language that a "parks levy" will be assessed by the

Construction Receiver as a purchase price adjustment. The meaning of "park levy" is equally clear,

23 Second Report, para. 25. 24 Second Report, para. 32. 25 Purchaser Package Approval Order, JBD, Tab 15. 26 Purchaser Package Approval Order Counsel Slip, JBD Tab 15, page 459. 27 Unofficial transcript of Endorsement of Mr. Justice Newbould dated May 11, 2017, Construction Receiver's Book of Authorities ("Construction Receiver's BOA"), Tab 1. 28 Salah v Timothy's Coffees of the World Inc. (2010) 74 B.L.R. (4th) 161 [ONCA] Construction Receiver's BOA, Tab 2 at para 16; Nortel Networks Corp, Re, 2015 ONSC 2987 Construction Receiver's BOA, Tab 3 at para 52.

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based on the language in the Opt-In Leslieville Purchaser APS and the legislation that gives rise

to a developer's obligation to convey land or pay cash-in-lieu.

38. The relevant provisions of the Planning Act and the Toronto Municipal Code are as

follows, and the complete statutory provisions are included in Schedule B hereof:

Planning Act

42(1) As a condition of development or redevelopment of land, the council of a local municipality may, by by-law applicable to the whole municipality or to any defined area or areas thereof, require that land in an amount not exceeding, in the case of land proposed for development or redevelopment for commercial or industrial purposes, 2 per cent and in all other cases 5 per cent of the land be conveyed to the municipality for park or other public recreational purposes.

42(6) If a rate authorized by subsection (1) applies, the council may require a payment in lieu, to the value of the land otherwise required to be conveyed.

Toronto Municipal Code

415-22. Conveyance of land for parks purposes. As a condition of development of land the owner of the land shall convey or cause to be conveyed to the City, land for park or other public recreational purposes in the following manner.

415-24. Cash-in-lieu of land dedication. A. Despite § 415-22, where the size, shape or location of land proposed for parkland dedication is deemed by Council to be unsuitable for parks or public recreation purposes, Council may require payment of cash-in-lieu of land.

39. Nowhere in the applicable legislation is the word "levy" used. Rather, there is the concept

of "conveyance", and the concept of "cash-in-lieu". The only defendable interpretation of the term

is that "parks levy" means both the conveyance of land and the payment of cash-in-lieu, as

illustrated by the definition of "levy", historical judicial interpretation of "levy", the City's own

interpretation of "parks levy" and by the limited applicable jurisprudence on this issue.

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Black's Law Dictionary Definition of "Levy"

40. Black's Law Dictionary defines "levy" as:

1. The imposition of a fine or tax; the fine or tax so imposed. — Also termed tax levy. 2. The enlistment of soldiers into the military; the soldiers so enlisted. 3. The legally sanctioned seizure and sale of property; the money obtained from such a sale — Also (in sense 3) levy of execution.29

41. This definition of "levy" is not limited to the payment of money, and clearly includes the

seizure of property. Jurisprudence on this point has further clarified that the "sale" component of

the third definition, above, is not a necessary element of a levy.30 Accordingly, by definition, a

levy is the legal taking or seizure of property, including but not limited to money. This would

include, for example, the taking of the Parkland by the City.

City of Toronto Website

42. The Certain Curzon Purchasers state in their factum that the City defines "Parks Levy" on

its website; in fact, the City defines "Park Levy Fee", and the distinction is critical:

In new developments, developers & builders will be required to either set aside a certain amount of land for parkland (parkland dedication) or in some circumstances, they may pay a fee in lieu of this. When they pay a fee in lieu of parkland dedication, the fee is called a Parks Levy Fee.31

29 Black's Law Dictionary, (11th ed. 2019), "levy", Construction Receiver's BOA at Tab 4. 3° Mortimore v. Cragg (1878), 3 C.P.D. 216: "A levy in its legal meaning seems to me to be when the goods are seized and money is obtained by the compulsion of the seizure, and does not necessarily comprise 'sale' at all", Construction Receiver's BOA, Tab 5; and see Chambers v. Louis (1943), 1943 CarswellSask 14 (Sask. C.A.): "According to authority the term "levy" in such a statute implies a seizure of goods for the purpose of extracting payment.": Stroud, 2" 3e., p. 1058. In practice it means seizure: Bouvier, vol. 2, p. 194 Construction Receiver's BOA, Tab 6; And see also Bayview Estates Ltd., Re (1980), 1980 CarswellNfld 95 (Nfld. T.D.): "Each of the terms, levy, seizure and execution are synonymous in that each signifies the action of the sheriff in carrying out the duty upon him, to seize and sell the property and satisfy the judgment with the money realized." Construction Receiver's BOA, Tab 7. 31 Affidavit of Inderpreet Suri, Ex. A, Supplementary Motion Record of the Certain Curzon Purchasers, Tab 2A.

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43. The City's interpretation of "parks levy" is entirely consistent with the Construction

Receiver's interpretation of the Park Levy Clause. Indeed, the Construction Receiver agrees with

the Certain Curzon Purchasers that a "Parks Levy Fee" describes only a payment-in-lieu. However,

it is necessary to add "fee" to "park levy" in order to describe only the payment of cash-in-lieu,

because "park levy" by itself describes both the conveyance of land and the payment-in-lieu. In

order for the word "fee" to have any meaning, it must modify "park levy" by restricting that term

to only the cash-in-lieu component. Otherwise, the use of "fee" is redundant.

Ontario Case Law

44. Section 42 of the Planning Act has not received much judicial consideration, and to the

Construction Receiver's knowledge no Court has had to rule on whether "park levy" means both

conveyance of land and payment of cash-in-lieu, or just payment of cash-in-lieu. The closest case

on point appears to be Gemterra Developments Corp. v. Toronto (City), 32

45. Gemterra was a case in which a developer sought a refund from the City for what it alleged

was an overpayment of cash-in-lieu in connection with the applicable parks levy. The issue to be

determined by the Court was whether the development constituted one or two development sites,

because different levy rates applied based on the size and number of development sites.

46. In discussing the statutory framework of the park levy, Justice Perell writes (as quoted in

the Certain Curzon Purchasers' factum):

Section 42 of the Planning Act empowers a municipality, by by-law, to require a developer of land to convey a portion of lands for parks or to require the developer

32 Gemterra Developments Corp. v Toronto (City) 2017 CarswellOnt 3846 ("Gemterra"), Construction Receiver's BOA, Tab 8.

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to require a payment in lieu of a conveyance. This payment is commonly referred to as a "park levy".33

47. Gemterra was not a case where the distinction between the conveyance of parkland and

the payment of cash-in-lieu was at issue. It was common ground that the City had required payment

of cash-in-lieu, and no consideration was paid to conveyance of land as an alternative to this

payment.

48. Justice Perell's observation therefore cannot be taken to mean that because the payment of

cash-in-lieu is referred to as a "parks levy", the term "parks levy" excludes the conveyance of

parkland to a municipality. This was simply not an issue before the Court.

49. It is instructive that throughout the Gemterra decision, Justice Perell refers to the City of

Toronto Article III of Chapter 415 of the Toronto Municipal Code, which is the bylaw pursuant to

which the City requires conveyance of parkland and payment of cash-in-lieu, as the "Park Levy

By-law". If, as the Certain Curzon Purchasers allege, "park levy" means only payment of cash-in-

lieu, Justice Perell's reference to the whole bylaw as a "park levy" bylaw would be misleading.

This is further indication that the Gemterra decision has nothing to do with the distinction between

conveyance of land and payment of cash-in-lieu.

50. Accordingly, in the Construction Receiver's view, Gemterra is not only distinguishable

from the Certain Curzon Purchaser Motion, it is substantively irrelevant to the Issue for

Determination. At best, the decision tangentially supports the Construction Receiver's

interpretation of "park levy".

33 Ibid, at para. 8.

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The Construction Receiver 's Interpretation is the Only Commercially Reasonable Interpretation of the Park Levy Clause

51. It is well established that contracts should be interpreted so as to accord with sound

commercial principles and good business sense and avoid commercial absurdity.34 The Ontario

Court of Appeal has indicated that this general principle is applicable to agreements of purchase

and sale in the real estate context.35

52. The Construction Receiver's interpretation of the Park Levy Clause is the only

commercially reasonable interpretation. The Certain Curzon Purchasers' interpretation is

commercially absurd.

53. Pursuant to the Planning Act, the City could elect to either require the conveyance of the

Parkland or require cash-in-lieu of the conveyance. In either case, there would be a material cost

to the UC Leslieville estate. It is only reasonable that the risk and cost of the City's choice be

allocated in the same way, regardless of what the choice ultimately ended up being. The only

reasonable interpretation of the Park Levy Clause is that it uniformly allocates this risk, and that

"parks levy" means both the value of the Parkland conveyed, and the payment of cash-in-lieu.

54. The interpretation of the Park Levy Clause advocated by the Certain Curzon Purchasers is

commercially absurd. Based on their interpretation, if the City elected to require that cash be paid

in lieu of the Parkland being conveyed, the purchasers of Leslieville Units would bear that cost. If,

however, the City elected to require the conveyance of the Parkland, the UC Leslieville estate

34 369413 Alberta Ltd. v. Pocklington [2000] A.J. No 1350 (Alta. C.A.) Construction Receiver's BOA, Tab 9. 35 Beatty v Wei, 2018 ONCA 479 Construction Receiver's BOA, Tab 10 at para 36, citing Weyerhaeuser Company Limited Ontario (Attorney General), 2017 ONCA 1007 Construction Receiver's BOA, Tab 11 at para 65.

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would bear the cost. It is unreasonable in the extreme that sophisticated parties would agree to

allocate the risk of a material cost based on the whims of a municipality.

The Park Levy Clause was agreed to by the Certain Curzon Purchasers before the City's election regarding the Park Levy was known

55. The Park Levy Clause was also in the Original Leslieville Purchaser APS, in exactly the

same form as it appears in the Opt-In Leslieville Purchaser APS.36 This Original Leslieville

Purchaser APS was executed by the Certain Curzon Purchasers in 2011, before the City advised

of its decision with respect to the dedication of the Parkland in the January 25, 2016 Notice of

Approval Conditions, and long before the City ultimately formally required the conveyance in the

October 23, 2017 Site Plan.

56. In other words, UC Leslieville and all of the Opt-In Leslieville Purchasers (which includes

all of the Certain Curzon Purchasers, as a sub-set) agreed to the Park Levy Clause long before the

City had communicated a decision about whether it would require the conveyance of the Parkland

or the payment of cash-in-lieu.

57. It is not commercially reasonable that these parties would agree to allocate the risk and cost

of a parkland dedication to UC Leslieville and the risk and cost of a payment of cash-in-lieu to the

purchasers. However, this commercially unreasonable result would follow from the interpretation

of the Park Levy Clause proposed by the Certain Curzon Purchasers.

The Parks Levy Was Priced-in To the Opt-In Leslieville Purchaser APS

58. The allocation to the Certain Curzon Purchasers of the risk and cost of the City electing to

require the conveyance of the Parkland was reflected in the aggregate purchase price of the Certain

36 Agreed Statement of Facts, at Para. 36.

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Curzon Purchasers' Leslieville Units. This is evidenced by the fact that New Leslieville Purchasers

who negotiated a cap on their purchase price adjustments, in effect transferring the risk and cost

of the Parks Levy to the UC Leslieville estate, paid on average between 14% and 35% more than

the Certain Curzon Purchasers for the same class of units.

59. While there are several factors that influence the increased purchase price paid by New

Leslieville Purchasers who negotiated caps, the fact that the caps limited these purchasers'

exposure to the City's exercise of rights under the Planning Act and in effect transferred that

exposure onto the UC Leslieville estate can reasonably be concluded to have increased the price

they paid.

The Parks Levy Was Calculated as the Market Value of the Parkland in Early 2013

60. The Construction Receiver used the assessed value of the Parkland as of January 2013, as

evaluated by the City in the January Letter, to assess the fair market value of the Parkland for the

purposes of charging the Parks Levy to the Leslieville Unit purchasers who had not negotiated a

cap on adjustments. While this amount is equal to the face value of the Parks LC, it is not correct

that the Construction Receiver simply allocated the Parks LC among the purchasers, as the Certain

Curzon Purchasers' factum seems to suggest. Rather, the Parks LC face value corresponds to a

point-in-time market value of the Parkland. In the Construction Receiver's view, this was

reasonable, appropriate and in line with applicable legislation.

61. Subsection 42(6.4) of the Planning Act provides that for the purposes of calculating the

value of parkland when payment of cash-in-lieu is required by a municipality, "the value of the

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land shall be determined as of the day before the day the building permit is issued in respect of the

development".37

62. The construction of the Leslieville Units was commenced by UC Leslieville under

conditional permit agreements dated September 24, 2012 and January 23, 2013. These agreements

were extended by UC Leslieville, and then the Construction Receiver, several times, with the final

extension going to February 28, 2018. Final building permits were issued on February 26, 2018.

Given the conditionality of the permits and the long periods of time that elapsed from the beginning

of the project to the final building permit, in the Construction Receiver's view it is prudent and

reasonable to use the assessed value of the Parkland as of the date that the Parks LC was required.

63. The face value of the Parks LC, being $769,280.00, was assessed by the City in the January

Letter, and was explicitly (emphasis added):

. .. based on a development proposal to construct 56- unit medium-density development (55 townhouses and 1 single-family dwelling), assumed total site area of 6,963 square metres, a total above-grade building area of 7,868 square metres, and a current valuation date. This amount may require review and possible revision to reflect the current valuation date, or any other significant changes with respect to the site as relied upon for this valuation. This valuation is valid until July 28, 2013... 38

64. In the Construction Receiver's view, this was the correct and appropriate amount to use to

calculate the Parks Levy. The Certain Curzon Purchasers do not dispute the calculation that was

made with regard to their proportionate interest in this amount.

37 Planning Act Subsection 42(6.4), Schedule B. 38 January Letter, JBD, Tab 2.

19

PART V — CONCLUSION

65. There is no ambiguity in the Park Levy Clause. It is a clear contractual provision, in a

document that was highly negotiated by sophisticated counsel on behalf of almost all of the Certain

Curzon Purchasers, and then Court approved.

66. The term "parks levy" describes both the value of land conveyed to a municipality pursuant

to the Planning Act and the amount of money required to be paid as cash-in-lieu of a conveyance.

This is the only interpretation that is consistent with the definition of "levy", with judicial treatment

of the word, with the City's own description of a "park levy" and with the limited Ontario

jurisprudence regarding the applicable sections of legislation.

67. Moreover, the Construction Receiver's interpretation of the Parks Levy Clause is the only

commercially reasonable interpretation, especially when taking into account the fact that the

Certain Curzon Purchasers agreed to the language at a time when there was no way of knowing

whether the City would elect to require the Parkland to be conveyed or elect to require cash-in-

lieu to be paid.

68. Accordingly, the Construction Receiver submits that the Certain Curzon Purchaser Motion

should be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 17th day of June, 2019.

SCHEDULE "A"

LIST OF AUTHORITIES

Tab Description

1. Unofficial transcript of Endorsement of Mr. Justice Newbould dated May 11, 2017

2. Salah v Timothy's Coffees of the World Inc. (2010), 74 B.L.R. (4th) 161 [ONCA]

3. Nortel Networks Corp, Re, 2015 ONSC 2987

4. Black's Law Dictionary, (1 Ph ed. 2019), "levy"

5. Mortimore v. Cragg (1878), 3 C.P.D. 216

6. Chambers v. Louis (1943), 1943 CarswellSask 14 (Sask. C.A.)

7. Bayview Estates Ltd., Re (1980), 1980 CarswellNfld 95 (Nfld. T.D.)

8. Gemterra Developments Corp. v Toronto (City) 2017 CarswellOnt 3846

9. 369413 Alberta Ltd. v. Pocklington, [2000] A.J. No 1350 (Alta. C.A.)

10. Beatty v Wei, 2018 ONCA 479

11. Weyerhaeuser Company Limited Ontario (Attorney General), 2017 ONCA 1007

SCHEDULE "B"

Planning Act, R.S.O. 1990 c.P.13

Conveyance of land for park purposes Definitions

42 (0.1) In this section,

"dwelling unit" means any property that is used or designed for use as a domestic establishment in which one or more persons may sleep and prepare and serve meals; ("logement")

"effective date" means the day subsection 28 (1) of the Smart Growth for Our Communities Act, 2015 comes into force. ("date d'effet") 2015, c. 26, s. 28 (1).

Conveyance

(1) As a condition of development or redevelopment of land, the council of a local municipality may, by by-law applicable to the whole municipality or to any defined area or areas thereof, require that land in an amount not exceeding, in the case of land proposed for development or redevelopment for commercial or industrial purposes, 2 per cent and in all other cases 5 per cent of the land be conveyed to the municipality for park or other public recreational purposes. R.S.O. 1990, c. P.13, s. 42 (1).

(2) REPEALED: 2015, c. 26, s. 28 (2).

Alternative requirement

(3) Subject to subsection (4), as an alternative to requiring the conveyance provided for in subsection (1), in the case of land proposed for development or redevelopment for residential purposes, the by-law may require that land be conveyed to the municipality for park or other public recreational purposes at a rate of one hectare for each 300 dwelling units proposed or at such lesser rate as may be specified in the by-law. R.S.O. 1990, c. P.13, s. 42 (3).

Official plan requirement

(4) The alternative requirement authorized by subsection (3) may not be provided for in a by-law passed under this section unless there is an official plan in effect in the local municipality that contains specific policies dealing with the provision of lands for park or other public recreational purposes and the use of the alternative requirement. R.S.O. 1990, c. P.13, s. 42 (4).

Parks plan

(4.1) Before adopting the official plan policies described in subsection (4), the local municipality shall prepare and make available to the public a parks plan that examines the need for parkland in the municipality. 2015, c. 26, s. 28 (3).

2

Same

(4.2) In preparing the parks plan, the municipality,

(a) shall consult with every school board that has jurisdiction in the municipality; and

(b) may consult with any other persons or public bodies that the municipality considers appropriate. 2015, c. 26, s. 28 (3).

Same

(4.3) For greater certainty, subsection (4.1) and clause (4.2) (a) do not apply with respect to official plan policies adopted before the effective date. 2015, c. 26, s. 28 (3).

Use and sale of land

(5) Land conveyed to a municipality under this section shall be used for park or other public recreational purposes, but may be sold at any time. R.S.O. 1990, c. P.13, s. 42 (5).

Payment in lieu

(6) If a rate authorized by subsection (1) applies, the council may require a payment in lieu, to the value of the land otherwise required to be conveyed. 2015, c. 26, s. 28 (4).

Same

(6.0.1) If a rate authorized by subsection (3) applies, the council may require a payment in lieu, calculated by using a rate of one hectare for each 500 dwelling units proposed or such lesser rate as may be specified in the by-law. 2015, c. 26, s. 28 (4).

Deemed amendment of by-law

(6.0.2) If a by-law passed under this section requires a payment in lieu that exceeds the amount calculated under subsection (6.0.1), in circumstances where the alternative requirement set out in subsection (3) applies, the by-law is deemed to be amended to be consistent with subsection (6.0.1). 2015, c. 26, s. 28 (4).

Transition

(6.0.3) If, on or before the effective date, in circumstances where the alternative requirement set out in subsection (3) applies, a payment in lieu has been made or arrangements for a payment in lieu that are satisfactory to the council have been made, subsections (6.0.1) and (6.0.2) do not apply. 2015, c. 26, s. 28 (4).

No building without payment

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(6.1) If a payment is required under subsection (6) or (6.0.1), no person shall construct a building on the land proposed for development or redevelopment unless the payment has been made or arrangements for the payment that are satisfactory to the council have been made. 2006, c. 23, s. 17 (1); 2015, c. 26, s. 28 (5).

Redevelopment, reduction of payment

(6.2) If land in a local municipality is proposed for redevelopment, a part of the land meets sustainability criteria set out in the official plan and the conditions set out in subsection (6.3) are met, the council shall reduce the amount of any payment required under subsection (6) or (6.0.1) by the value of that part. 2006, c. 23, s. 17 (1); 2015, c. 26, s. 28 (6).

Same

(6.3) The conditions mentioned in subsection (6.2) are:

1. The official plan contains policies relating to the reduction of payments required under subsection (6) or (6.0.1).

2. No land is available to be conveyed for park or other public recreational purposes under this section. 2006, c. 23, s. 17 (1); 2015, c. 26, s. 28 (7).

Determination of value

(6.4) For the purposes of subsections (6), (6.0.1) and (6.2), the value of the land shall be determined as of the day before the day the building permit is issued in respect of the development or redevelopment or, if more than one building permit is required for the development or redevelopment, as of the day before the day the first permit is issued. 2006, c. 23, s. 17 (1); 2015, c. 26, s. 28 (8).

Where land conveyed

(7) If land has been conveyed or is required to be conveyed to a municipality for park or other public purposes or a payment in lieu has been received by the municipality or is owing to it under this section or a condition imposed under section 51.1 or 53, no additional conveyance or payment in respect of the land subject to the earlier conveyance or payment may be required by a municipality in respect of subsequent development or redevelopment unless,

(a) there is a change in the proposed development or redevelopment which would increase the density of development; or

(b) land originally proposed for development or redevelopment for commercial or industrial purposes is now proposed for development or redevelopment for other purposes. 1994, c. 23, s. 25; 2015, c. 26, s. 28 (9).

Non-application

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(8) Despite clauses 74.1 (2) (h) and (i), subsection (7) does not apply to land proposed for development or redevelopment if, before this subsection comes into force, the land was subject to a condition that land be conveyed to a municipality for park or other public purposes or that a payment of money in lieu of such conveyance be made under this section or under section 51 or 53. 1994, c. 23, s. 25.

Changes

(9) If there is a change under clause (7) (a) or (b), the land that has been conveyed or is required to be conveyed or the payment of money that has been received or that is owing, as the case may be, shall be included in determining the amount of land or payment of money in lieu of it that may subsequently be required under this section on the development, further development or redevelopment of the lands or part of them in respect of which the original conveyance or payment was made. 1994, c. 23, s. 25.

Disputes

(10) In the event of a dispute between a municipality and an owner of land on the value of land determined under subsection (6.4), either party may apply to the Tribunal to have the value determined and the Tribunal shall, in accordance as nearly as may be with the Expropriations Act, determine the value of the land and, if a payment has been made under protest under subsection (12), the Tribunal may order that a refund be made to the owner. 2017, c. 23, Sched. 5, s. 97 (1).

Same

(11) In the event of a dispute between a municipality and an owner of land as to the amount of land or payment of money that may be required under subsection (9), either party may apply to the Tribunal and the Tribunal shall make a final determination of the matter. 2017, c. 23, Sched. 5, s. 97 (1).

Payment under protest

(12) If there is a dispute between a municipality and the owner of land under subsection (10), the owner may pay the amount required by the municipality under protest and shall make an application to the Tribunal under subsection (10) within 30 days of the payment of the amount. 1994, c. 23, s. 25; 2017, c. 23, Sched. 5, s. 97 (2).

Notice

(13) If an owner of land makes a payment under protest and an application to the Tribunal under subsection (12), the owner shall give notice of the application to the municipality within 15 days after the application is made. 1994, c. 23, s. 25; 2017, c. 23, Sched. 5, s. 97 (3).

Park purposes

5

(14) The council of a municipality may include in its estimates an amount to be used for the acquisition of land to be used for park or other public recreational purposes and may pay into the fund provided for in subsection (15) that amount, and any person may pay any sum into the same fund. 1994, c. 23, s. 25.

Special account

(15) All money received by the municipality under subsections (6), (6.0.1) and (14) and all money received on the sale of land under subsection (5), less any amount spent by the municipality out of its general funds in respect of the land, shall be paid into a special account and spent only for the acquisition of land to be used for park or other public recreational purposes, including the erection, improvement or repair of buildings and the acquisition of machinery for park or other public recreational purposes. 1994, c. 23, s. 25; 2009, c. 33, Sched. 21, s. 10 (10); 2015, c. 26, s. 28 (10).

Investments

(16) The money in the special account may be invested in securities in which the municipality is permitted to invest under the Municipal Act, 2001 or the City of Toronto Act, 2006, as the case may be, and the earnings derived from the investment of the money shall be paid into the special account, and the auditor in the auditor's annual report shall report on the activities and status of the account. 1994, c. 23, s. 25; 1996, c. 32, s. 82 (5); 2002, c. 17, Sched. B, s. 15; 2006, c. 32, Sched. C, s. 47 (10).

Treasurer's statement

(17) The treasurer of the municipality shall each year, on or before the date specified by the council, give the council a financial statement relating to the special account. 2015, c. 26, s. 28 (11).

Requirements

(18) The statement shall include, for the preceding year,

(a) statements of the opening and closing balances of the special account and of the transactions relating to the account;

(b) statements identifying,

(i) any land or machinery acquired during the year with funds from the special account,

(ii) any building erected, improved or repaired during the year with funds from the special account,

(iii) details of the amounts spent, and

6

(iv) for each asset mentioned in subclauses (i) and (ii), the manner in which any capital cost not funded from the special account was or will be funded; and

(c) any other information that is prescribed. 2015, c. 26, s. 28 (11).

Copy to Minister

(19) The treasurer shall give a copy of the statement to the Minister on request. 2015, c. 26, s. 28 (11).

Statement available to public

(20) The council shall ensure that the statement is made available to the public. 2015, c. 26, s. 28 (11).

Toronto Municipal Code, Chapter 415, Development of Land

415-22. Conveyance of land for parks purposes. [Amended 2010-08-27 by By-law 1020- 2010]

As a condition of development of land the owner of the land shall convey or cause to be conveyed to the City, land for park or other public recreational purposes in the following manner: A. For residential uses, land equal to 5 percent of the land to be developed. B. For non—residential uses, land equal to 2 percent of the land to be developed. C. Where the development of a single parcel of land is proposed for both residential uses and non-residential uses, the respective rates set out in §§ 415-22A, 415-22B and 415-23 8 Editor's Note: This By-law also deleted the definition "Residential Purposes".

415-23. Alternative rate. [Amended 2010-08-27 by By-law 1020-2010]

Despite § 415-22A, as a condition of development of land for residential use in a parkland acquisition priority area, the owner of the land shall convey or cause to be conveyed to the City, the greater of the amount set out in § 415-22A, or land at a rate of 0.4 hectares for each 300 dwelling units proposed provided that:

A. For sites less than one hectare in size, the parkland dedication will not exceed 10 percent of the development site, net of any conveyances for public road purposes.

B. For sites one hectare to five hectares in size, the parkland dedication will not exceed 15 percent of the development site, net of any conveyances for public road purposes.

C. For sites greater than five hectares in size, the parkland dedication will not exceed 20 percent of the development site, net of any conveyances for public road purposes.

7

415-24. Cash-in-lieu of land dedication. [Amended 2010-08-27 by By-law 1020-2010]

A. Despite § 415-22, where the size, shape or location of land proposed for parkland dedication is deemed by Council to be unsuitable for parks or public recreation purposes, Council may require payment of cash-in-lieu of land.

B. Despite § 415-23, where the size, shape or location of land proposed for parkland dedication in parkland acquisition priority area is deemed by Council to be unsuitable for parks or public recreation purposes, Council may require payment of cash-in-lieu of land, provided:

(1) that the value of the cash-in-lieu does not exceed:

(a) Ten percent of the value of the development site, net of any conveyances for public road purposes, for sites less than one hectare in size.

(b) Fifteen percent of the value of the development site, net of any conveyances for public road purposes, for sites one hectare to five hectares in size.

(c) Twenty percent of the value of the development site, net of any conveyances for public road purposes, for sites over five hectares in size.

(2) In no case, will the residential parkland dedication, cash-in-lieu or combination thereof, be less than 5 percent of the development site or the value of the development site, net of any conveyances for public road purposes.

415-25. Cash-in-lieu; allocation. [Amended 2010-08-27 by By-law 1020-2010]

A. Any payment of cash-in-lieu of land in accordance with § 415-24 will be used for the acquisition of new parkland or the improvement of parks and recreational facilities in accordance with the following allocation and the cash-in-lieu allocation policy:

(1) 50 percent for the acquisition of lands for parks and recreation purposes, further divided as follows:

(a) 50 percent to acquire parkland within the district where the funds were generated; and

(b) 50 percent to acquire parkland throughout the City.

(2) 50 percent for the development of parks and recreation facilities, further divided as follows:

(a) 50 percent to develop and upgrade parks and recreation facilities within the district where the funds were generated; and

8

(b) 50 percent to develop and upgrade parks and recreation facilities throughout the City.

B. Despite § 415-25A, Community Councils may recommend to City Council, through the Budget Committee, the allocation of expenditures of up to 100 percent of the district portion of parks and recreation facility development funds allocated under § 415-25A(2)(a) for the acquisition of parkland within the district where the funds were generated under § 415-22A(1)(a).

C. Any payment of cash-in-lieu of land to be conveyed through the alternative rate provision in accordance with § 415-24B in excess of 5 percent of the site area will be used to acquire parkland that is accessible to the area in which the development is located or to improve parks in the vicinity of the development.

415-26. Parkland conveyance; conditions.

A. The location and configuration of land required to be conveyed shall be in the discretion of the City.

B. All conveyances shall be free and clear of all liens and encumbrances.

C. Where on-site parkland dedication is not feasible, an off-site parkland dedication that is accessible to the area where the development site is located may be substituted for an on-site dedication, provided that:

(1) The off-site dedication is a good physical substitute for any on-site dedication;

(2) The value of the off-site dedication is equal to the value of the on-site dedication that would otherwise be required; and

(3) Both the City and the applicant agree to the substitution.

D. Land to be conveyed shall be in conformity with Council policies and guidelines for parkland.

E. Environmental lands will not be considered a conveyance for parks or other recreational purposes for the purposes § 415-22 and § 415-23. [Added 2010-08-27 by By-law 1020- 2010]

415-27. Administrative authority.

The General Manager Parks, Forestry and Recreation is authorized to determine the specific combination of land and/or cash in lieu of land on a site specific basis in accordance with this article and the City's Official Plan policies.

415-28. Timing of conveyance or payment.

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The conveyance of land or payments required to be made under this article shall be made prior to the issuance of the first above-ground building permit for the land to be developed.

415-29. Valuation of land.

A. All appraisals of land value shall be carried out under the direction of the Executive Director, Facilities and Real Estate and shall be determined in accordance with generally accepted appraisal principles.

B. The cost of any appraisal undertaken by the City shall be paid for by the owner.

C. The value of the land shall be determined as of the day before the day of issuance of the first building permit in respect of the development.

D. The conveyance of land or payment of cash in lieu of land shall be taken into consideration in determining an appropriate credit with respect to the amount of money or land which may be required in connection with the further development of the subject lands:

(1) Where land has been conveyed to the City for park or other public recreational purposes, exclusive of highways and floodplain lands;

(2) Where a payment of cash in lieu of such conveyance has been received by the City in accordance with this article;

(3) Pursuant to the provisions of sections 42, 51.1 or 53 of the Planning Act.

415-30. Exemptions. [Amended 2010-08-27 by By-law 1020-2010; 2018-07-27 by By-law 1161-2018]

A. This article does not apply to the following types of development:

(1) Non-profit housing;

(2) Replacement of an existing dwelling unit on an existing lot;

(3) Enlargement of an existing dwelling unit on an existing lot, including a detached garage;

(4) Creation of 1 additional dwelling unit in an existing residential building or the creation of 1 Laneway Suite;

(5) Long Term Care homes;

(6) Non-residential replacement buildings or structures; (7) An addition of 200 square metres or less to an existing non-residential building;

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(8) Industrial Uses;

(9) Buildings or structures owned by and used for the purposes of:

(a) the Government of Canada;

(b) the Province of Ontario;

(c) the City of Toronto;

(d) Toronto Hydro Corporation.

(10) Buildings or structures owned by and used for the purposes of:

(a) a public school as set out in the Education Act;

(b) a public university receiving regular and ongoing government operating funds for the purposes of providing post-secondary education;

(c) a public college established in accordance with the Ontario Colleges of Applied Arts and Technology Act, 2002.

(11) Public Hospitals receiving and using aid under the Public Hospitals Act for the purposes set out in that Act.

(12) Municipal child care centres and non-profit child care providers on Toronto District School Board, Toronto Catholic District School Board, or municipal lands;

(13) Temporary uses pursuant to Section 39 of the Planning Act.

B. This article does not apply to the geographic areas described in Schedule B to this article attached at the end of this chapter.

Court File No. CV-16-11409-00CL

CANADIAN IMPERIAL BANK OF COMMERCE v. URBANCORP (LESLIEVILLE) DEVELOPMENTS INC. et al. Applicant Respondents

ONTARIO SUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

Proceeding commenced at Toronto

FACTUM (Re: Parks Levy Determination)

BLAKE, CASSELS & GRAYDON LLP 199 Bay Street Suite 4000, Commerce Court West Toronto, Ontario M5L 1A9

Chris Burr — LSO#: 55172H Tel: 416-863-3261 Fax: 416-863-2653 Email: chris.burr@blakes.com

Independent Counsel for Alvarez & Marsal Canada Inc., in its capacity as both Receiver and Manager, and Construction Lien Trustee of the assets, undertakings and property of Urbancorp (Leslieville) Developments Inc., Urbancorp (Riverdale) Developments Inc., and Urbancorp (The Beach) Developments Inc.