COURT FILE NUMBER 1601-06759 DEe 07 2ot6 COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL CENTRE OF CALGARY JUDICIAL CENTRE CALGARY PLAINTIFF ALBERTA TREASURY BRANCHES DEFENDANT CHINOOK PIPELINE INC., CHINOOK PIPELINE LIMITED PARTNERSHIP, CHINOOK PIPELINE LTD., AND 1466264 ALBERTA LTD. APPLICANT KPMG INC., IN ITS CAPACITY AS COURT-APPOINTED RECEIVER AND MANAGER OF CHINOOK PIPELINE INC., CHINOOK PIPELINE LIMITED PARTNERSHIP,, CHINOOK PIPELINE LTD., AND 1466264 ALBERTA LTD. DOCUMENT ADDRESS FOR SERVICE AND CONTACT INFORMATION OF PARTY FILING THIS DOCUMENT SECOND SUPPLEMENTAL REPORT TO THE COURT SUBMITTED BY KPMG INC., IN ITS CAPACITY AS COURT-APPOINTED RECEIVER AND MANAGER OF CHINOOK PIPELINE INC., CHINOOK PIPELINE LIMITED PARTNERSHIP, CHINOOK PIPELINE LTD., AND 1466264 ALBERTA LTD. DATED DECEMBER 6, 2016 KPMG INC. 3100,205-5 Ave. S.W. Calgary, AB T2P 4B9 Attn: Neil Honess/Cecil Cheveldave Telephone: 403-691-8014/250-314-5965 Facsimile: 403-691-8008 Email: neilhoness@kpmg.ca ccheveldave@i'pmg.ca MCCARTHY TETRAULT LLP Suite 4000, 421-7th Avenue SW Attn: Sean ColIinslWalker MacLeod Telephone: 403-260-3531/403-260-3710 Facsimile: 403-260-3501 Email: scoliins@mccarthy.ca wmacleod@mccarthy.ca
Table of Contents Page 1. INTRODUCTION AND PURPOSE OF REPORT... 2 2. PROPERTY TRANSFERS... 5 3. BANKRUPTCY... 6 31207949.2
Listing of Appendices Appendix A - Chinook Pipeline Ltd. unaudited internal Balance Sheet as at December 10, 2015 Appendix B - Amended Statement of Claim (Court File No. 1601-11715) Appendix C - Certificate of Appointment dated December 2, 2016 Appendix D - Chinook Pipeline Ltd. Statement of Affairs (Form 78) Page 1
1. INTRODUCTION AND PURPOSE OF REPORT Introduction 1. Chinook Pipeline Inc., Chinook Pipeline Limited Partnership, Chinook Pipeline Ltd. and 1466264 Alberta Ltd. ( Chinook Pipeline or the Group ) carried on the business of civil and municipal pipeline installation and construction throughout Alberta and Saskatchewan. The Group s principal assets include heavy duty machinery, pipeline laying equipment, light duty pickup trucks and real estate. All assets are located in Alberta. 2. The main operating entity of Chinook Pipeline was Chinook Pipeline Limited Partnership ( CPLP ), which carried out day to day business operations of the Group including entering into construction contracts and carrying out construction projects. 3. Chinook Pipeline Inc. ( CPI ) owned construction equipment, which was made available to CPLP to carry out construction projects. In addition to construction equipment CPI was the registered owner of six parcels of real estate. The previous reports by KPMG Inc. indicated that CPI was the registered owner of seven parcels of real estate. Upon further investigation, it has been determined that one of these parcels of real estate was owned by Chinook Pipeline Ltd. ( CPL ). 4. CPL was the general partner of CPLP. 5. 1466264 Alberta Ltd. was the limited partner of CPLP. 6. The Group s primary secured lender is Alberta Treasury Branches ( ATB ) who has advanced funds of approximately $12.6 million (plus interest and fees). These amounts were borrowed by Chinook Pipeline pursuant to the amended facility agreements between ATB and Chinook Pipeline dated September 1, 2015 and January 8, 2016 (the Facility Agreements ). 7. As a result of the sharp decline in the Alberta economy and challenges with various construction projects, the Group experienced significant cash flow difficulties and was unable to maintain its commitments with ATB. 8. On April 27, 2016, ATB issued a demand for payment and notice of intention to enforce security (the ATB Notice ) pursuant to Section 244 of the Bankruptcy and Insolvency Act ( BIA ). Page 2
9. On May 27, 2016, an application was made to appoint KPMG Inc. ( KPMG ) as receiver and manager of Chinook Pipeline (the Receiver ) pursuant to section 243 of the BIA and section 13(2) of the Judicature Act, RSA 2000, c J-2 to, inter alia, take possession of and exercise control over the assets of the Group (including the shares and partnership units of the Group) and any and all proceeds, receipts and disbursements arising out of or from the assets (the Property ). 10. On December 2, 2016, CPL made an assignment for the general benefit of its creditors pursuant to section 49 of the BIA and KPMG was appointed as trustee in bankruptcy of CPL. 11. Further background to the receivership, specifically the transfers of real estate that were completed after the receivership date and the Receiver s recommendations concerning those transfers, were previously provided in the Receiver s first report to the Court dated September 9, 2016 (the First Report ), the Receiver s second report to the Court dated October 7, 2016 (the Second Report ) and the Receiver s third report to the Court dated October 28, 2016 (the Third Report ). 12. For additional information on Chinook Pipeline and these receivership proceedings please refer to the Receiver s website www.kpmg.ca/chinookpipeline. 13. In preparing this report, the Receiver has been provided with, and has relied upon, unaudited and other financial information, books and records (collectively, the Information ) prepared by the Group and/or their representatives, and discussions with the Group s management and/or representatives. The Receiver has reviewed the Information for reasonableness, internal consistency and use in the context in which it was provided and in consideration of the nature of evidence provided to this Honourable Court. However, the Receiver has not audited or otherwise attempted to verify the accuracy or completeness of the Information in a manner that would wholly or partially comply with Canadian Auditing Standards ( CAS ) pursuant to the Chartered Professional Accountants Canada Handbook and, accordingly, the Receiver expresses no opinion or other form of assurance contemplated under the CAS in respect of the Information. 14. The information contained in this report is not intended to be relied upon by any prospective purchaser or investor in any transaction with the Receiver. 15. All references to monetary amounts in this report are in Canadian dollars unless otherwise specified. Page 3
Purpose of the Receiver s Second Supplemental Report 16. This is the Receiver s second supplemental report (the Second Supplemental Report ) and is filed to provide an update to this Honourable Court on the transfer of real estate by CPL after the receivership date and with information concerning the financial affairs of CPL. 17. This Second Supplemental Report to the Court should be read in conjunction with the Second Report. 18. Defined terms not defined herein have the same meaning as defined in the First Report, Second Report and Third Report. Page 4
2. PROPERTY TRANSFERS 19. The Receiver has used the Chinook Group s accounting information to construct an estimated balance sheet for CPL as of the date of the transfer (December 10, 2015) of Parcel 6 to 118 Alberta (the CPL Balance Sheet ). The CPL Balance Sheet shows the accrued liability owed by CPL on its obligations to ATB and the value of CPL s assets. A copy of the CPL Balance Sheet is attached hereto as Appendix A. 20. On November 15, 2016, the Receiver amended the statement of claim it had filed in Court File No. 1601-11715 to advance the action on behalf of CPL. A copy of this amended statement of claim is attached hereto as Appendix B. Page 5
3. BANKRUPTCY 21. CPL owned one parcel of real estate at the receivership date located in Crowsnest Pass, Alberta. 22. Pursuant to paragraph 3(s) of the Order and to preserve the Trustee in Bankruptcy s right to pursue its remedies under sections 95 and 96 of the BIA, the Receiver assigned CPL into bankruptcy on December 2, 2016. A copy of Certificate of Assignment is attached hereto as Appendix C. 23. The Statement of Affairs (BIA Form 78) is attached hereto as Appendix D and is summarized as follows: Total estimated realizable value of assets $241,251 Total estimated value of liabilities ($13,015,344) Total estimated deficiency ($12,774,093) 24. The first meeting of creditors in the bankruptcy of CPL is scheduled to take place on December 21, 2016. Page 6
All of which is respectfully submitted this 6 th day of December, 2016. KPMG INC., COURT-APPOINTED RECEIVER AND MANAGER OF CHINOOK PIPELINE INC., CHINOOK PIPELINE LIMITED PARTNERSHIP, CHINOOK PIPELINE LTD., 1466264 ALBERTA LTD. and not in its personal capacity Per: Neil A. Honess Senior Vice President Per: C.F. (Cecil) Cheveldave Vice President Page 7
Appendix A Chinook Pipeline Ltd. unaudited internal Balance Sheet as at December 10, 2015
Chinook Pipeline Ltd. ("CPL") Balance Sheet Analysis - Unaudited Balance Sheet As At December 10, 2015 Item Per Receiver's Valuation / Analysis (Note 1) Notes Other Assets: Investment in Chinook Pipeline Limited Partnership $ 247 2 Total Other Assets $ 247 Capital Assets: Land $ 277,000 3 Total Capital Assets $ 277,000 TOTAL ASSETS $ 277,247 Long Term Debt: Long Term Debt and Guarantor Obligations $ 13,015,343 4 Total Long Term Debt $ 13,015,343 Equity: Retained Earnings $ (12,738,096) 5 Total Equity $ (12,738,096) TOTAL LIABILITIES & EQUITY $ 277,247 Notes: 1 The Receiver's valuation based on estimated net realizable value (also see further notes). 2 Investment amount in Chinook Pipeline Limited Partnership based on book value. 3 Receiver's valuation based on estimated market value of the vacant land located in Crowsnest Pass, Alberta. 4 Receiver's valuation based on amounts provided by ATB. 5 Receiver's valuation is the estimated deficiency between the value of assets and liabilities.
Appendix B Amended Statement of Claim (Court File No. 1601-11715)
Form 10 [Rule 3.25] COURT FILE NUMBER 1601-11715 COURT COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL CENTRE CALGARY PLAINTIFF CHINOOK PIPELINE INC. and CHINOO PIPELINE LTD. ( LERK 8f!kfA~~OURT FILED NOV 1 5 2016 JUDICIAL CENTRE OF CALGARY DEFENDANTS CAVELL CRAIG, 573935 ALBERTA LIMITED, 1182134ALBERTA LTD., CRAIG LAWLLP. and ANTON THOMAS DREW IRWIN DOCUMENT AMENDED AMENDED AMENDED STATEMENT OF CLAIM AMENDED this \~5,-- day of ADDRESS FOR McCarthy Tetrault LLP _b.\~q.j.;.~~ro..!..!.lbe~~:..- ;~Pursuant to SERVICE AND Barristers & Solicitors Rule ~f6'l CONTACT 4000, 421 - th Avenue S.W. Dated the \;) day of lyd0, l.o\6 INFORMATION OF Calgary, Alberta T2P 4K9 PARTY FILING THIS DOCUMENT NOTICE TO DEFENDANTS: Attention: Walker MacLeod Telephone: 403-260-3710 Facsimile: 403-260-3501 CLERK OF THE COURT You are being sued. You are a defendant. Go to the end of this document to see what you can do and when you must do it. Statement of facts relied on: The Parties 1. The Plaintiff, Chinook Pipeline Inc. ("Inc."), is a body corporate incorporated pursuant to the laws of the Province of Alberta. 2. The Plaintiff. Chinook Pipeline Ltd. ("Ltd.". and when reference is made to Ltd. and Inc. collectively. "Chinook") is a body corporate incorporated pursuant to the laws of the Province of Alberta. The Defendant, 5U935 Alberta A Limited ("SU Alberta") is, to the best knowledge of Chinook, a body corporate incorporated pursuant to the laws of the Province of Alberta. 069601/485401 MT DOCS 16092614v1
- 2 - ~ The Defendant, 1182134 Alberta Ltd. ("118 Alberta") is, to the best knowledge of Chinook, a body corporate incorporated pursuant to the laws of the Province of Alberta. 5. The Defendant, Cavell Craig ("Cavell"), is, to the best knowledge of Chinook, an individual residing in the Province of Alberta. The pefendant Craig Law LLP ("Craig Law''), is. to the best knowledge of Chinook. a partnership created pursuant to the laws of the Province of Alberta. L The Defendant Anton Thomas Drew Irwin ("Irwin"). is. to the best knowledge of Chinook. an individual residing in the Province of Alberta. KPMG Inc. has been appointed as the court appointed receiver and manager of Chinook (the "Receiver") pursuant to an order issued by the Alberta Court of Queen's Bench on May 27, 2016 (the "Receivership Order"). The Receiver has initiated this Action pursuant to paragraph 3m of the Receivership Order and for the benefit of the creditors of Chinook. The Lands a. 5U Alberta is currently the registered owner of the following lands (collectively, the "573 Lands"): PLAN 0811978 BLOCK 5 LOT 27 EXCEPTING THEREOUT ALL MINES AND MINERALS ESTATE: FEE SIMPLE ATS REFERENCE: 4;30;6;22;NE MUNICIPALITY: TOWN OF PINCHER CREEK REFERENCE NUMBER: 121 187051 PLAN 0811978 BLOCK 5 LOT 28 EXCEPTING THEREOUT ALL MINES AND MINERALS ESTATE: FEE SIMPLE ATS REFERENCE: 4;30;6;22;NE MUNICIPALITY: TOWN OF PINCHER CREEK REFERENCE NUMBER: 121 187051 +1.1Q. 118 Alberta is currently the registered owner of the following lands (the "118 Lands"): PLAN 8210039 BLOCK 2 069601/485401 MT DOCS 16092614v1
- 3 - CONTAINING 4.41 HECTARES (10.9 ACRES) MORE OR LESS EXCEPTING THEREOUT ALL MINES AND MINERALS ATS REFERENCE: 5;5;8;10;SE ESTATE: FEE SIMPLE MUNICIPALITY: MUNICIPALITY OF CROWSNEST PASS REFERENCE NUMBER: 141 261 057 II Cavell is currently the registered owner of the following lands (the "Cavell Lands"): PLAN 0824507 BLOCK 1 LOT 2 EXCEPTING THEREOUT ALL MINES AND MINERALS AREA: 2.02 HECTARES (4.99 ACRES) MORE OR LESS ESTATE: FEE SIMPLE ATS REFERENCE: 4;18;53;27;NE MUNICIPALITY: LAMONT COUNTY REFERENCE NUMBER: 122061 736.12.. As of the date of the Receivership Order, title to each of the 573 Lands, the 118 Lands and the Cavell Lands (collectively, the "Lands") was registered in fee simple and in the name of Chinook..u.. On or about August 20. 2016 and pursuant to a transfer of land executed on or about March 1. 2016. Chinook's interest in the 573 Lands was transferred to 573 Alberta without the knowledge or consent of the Receiver (the "573 Alberta Transfer''). ~ On or about August 25. 2016. and pursuant to a transfer of land executed on or about December 10. 2015. Chinook's interest in the 118 Lands was transferred to 118 Alberta without the knowledge or consent ofthe Receiver (the "118 Alberta Transfer'')..1.2.. On or about August 25. 2016 and pursuant to a transfer of land executed on or about March 1. 2016. Chinook's interest in the Cavell Lands was transferred to Cavell without the knowledge or consent of the Receiver (the "Cavell Transfer''). The Defendants' Wrongful Conduct 1Q.. Chinook states that the Defendants wrongfully caused the Lands to be transferred from Chinook to each of 573 Alberta, 118 Alberta and Cavell, without any consideration or, in the alternative, without adequate consideration, and in violation of the Receivership Order. 1L In addition and in the alternative, Chinook states that each of the Defendants received the Lands without any consideration or, in the alternative, without adequate consideration, and 069601/485401 MT DOCS 16092614v1
- 4 - in violation of the Receivership Order, for their own use and benefit and with actual knowledge and wilful blindness to the obvious, without making reasonable inquiry or with knowledge of the circumstances that would reasonably cause inquiry into the nature of the transfer of the Lands from Chinook to the Defendants..lit In addition and in the alternative, Chinook further states that, as a result of the wrongful conduct of the Defendants as particularized herein, each of the Defendants holds the Lands in a constructive or resulting trust and for the sole benefit of Chinook and its creditors..lit. In addition and in the alternative, Chinook further states that, as a result of the wrongful conduct of the Defendants as particularized herein, Chinook has suffered damages. Unjust Enrichment 20. Chinook states that, in causing the Lands to be transferred to it without consideration or, in the alternative, without adequate consideration, the Defendants were unjustly enriched, Chinook was correspondingly deprived and there is no juristic reason for the enrichment or the corresponding deprivation. In addition and in the alternative, Chinook states that it is entitled, inter alia, to restitution on a quantum meruit basis of the value of the Lands as a result of the Defendants' effecting the transfer of the Lands to themselves without any consideration or, in the alternative, without adequate consideration and in violation of the Receivership Order. The Fraydylent Preferences and Conveyances 21.. The Recejver states that at the time that Chinook made each of the 573 Transfer. the 118 Transfer and the Cavell Transfer (collectively. the "Transfers") Chinook was in insolvent circumstances. was unable to pay its debts or had knowledge that it was on the eve of insolvency. The Receiver further states that Chinook made the Transfers with intent to defeat hinder. delay or prejudice its creditors or anyone or more of them. As a result thereof. the Transfers are void pursuant to section 1 of the Fraudulent Preferences Act (Alberta) (the "FPA") and any amendments made thereto and any regulations made thereunder. 22. In the alternative. the Receiver states that each of 573 Alberta. 118 Alberta and Cavell were creditors of Chinook at the time of the Transfers. Further, or in the alternative. the Receiver states that Craig Law was a creditor of Chinook and that 573 Alberta was at all material 069601/485401 MT DOCS 16092614v1
- 5 - times acting as agent of Craig Law in respect of the 573 Transfer and holds the 573 Lands in trust and for the benefit of Craig Law and that Irwin was a creditor of Chinook and that 118 Alberta was at all material times acting as the agent for Irwin in respect of the 118 Transfer and holds the 118 Lands in trust and for the benefit of Irwin. The Receiver further states that the Transfers were made with the intent to give the Defendants a preference over Chinook's other creditors As a result the Transfers are void pursuant to section 2 of the FPA and any amendments made thereto and any regulations made thereunder. In the further alternative. the Transfers had the effect of giving the Defendants a preference over Chinook's other creditors and, as a result the Transfers are void pursuant to section 30fthe FPA and any amendments made thereto and any regulations made thereunder. ~ In the alternative. the Receiver states that the Transfers were made for no or nominal consideration Further the Receiver states that the Transfers were made with the intent ot, and had the effect of defrauding. delaying or hindering creditors. As a result the Transfers are void pursuant to the Statute of Elizabeth. 13 Elizabeth c. 5 (the "STE") and any amendments made thereto and any regulations made thereunder ~ Chinook does not anticipate the length of this trial will exceed 25 days. Z2., Chinook proposes that the trial of this action shall be heard at the Court House, in the City of Calgary, in the Province of Alberta. WHEREFORE CHINOOK CLAIMS AGAINST THE DEFENDANTS as follows: (a) A declaration that the Defendants hold the Lands as a constructive or resulting trustee and for the benefit of Chinook; (b) A direction that the Registrar of Land Titles transfer title to the Lands from the Defendants to Chinook; (c) Restitution on a quantum meruit basis of the value of the Lands from the Defendants to Chinook; (d) Judgment against the Defendants in such amount as may be proven at the trial of this Action; (e) An award of damages against the Defendants in such amount as may be proven at the trial of this Action; 069601/485401 MT DOCS 16092614v1
- 6 - (f) Interest on any amounts declared owing by the Defendants in an amount determined by this Honourable Court or, in the alternative, pursuant to the Judgment Interest Act (Alberta); (g) A declaration that the Transfers constitute fraudulent preferences or fraudulent conveyances pursuant to the FPA or the STE and are void: (h) Costs of this Action on such basis as this Honourable Court may deem appropriate in the circumstances in the exercise of its discretion; and (i) Such other relief as this Honourable Court deems just in the circumstances. NOTICE TO THE DEFENDANT(S) You only have a short time to do something to respond to this claim: 20 days if you are served in Alberta 1 month if you are served outside Alberta but in Canada 2 months if you are served outside Canada. You can respond by filing a statement of defence or a demand for notice in the office of the clerk of the Court of Queen's Bench at Calgary, Alberta, AND serving your statement of defence or a demand for notice on the plaintiff's(s') address for service. WARNING If you do not file and serve a statement of defence or a demand for notice within your time period, you risk losing the law suit automatically. If you do not file, or do not serve, or are late in doing either of these things, a court may give a judgment to the plaintiff(s) against you. 069601/485401 MT DOCS 16092614v1
Appendix C Certificate of Appointment dated December 2, 2016
District of: Alberta Division No.: 02 - Calgary Court No.: 25-2195339 Estate No.: 25-2195339 In the Matter of the Bankruptcy of: Chinook Pipeline Ltd. Debtor KPMG INC. Licensed Insolvency Trustee Ordinary Administration Date and time of bankruptcy: December 02, 2016, 09:40 Security: $0.00 Date of trustee appointment: December 02, 2016 Meeting of creditors: December 21, 2016, 13:00 Ramada Hotel 1132 Table Mountain Street Pincher Creek, Alberta Canada, Chair: Trustee CERTIFICATE OF APPOINTMENT - Section 49 of the Act; Rule 85 I, the undersigned, official receiver in and for this bankruptcy district, do hereby certify that: - the aforenamed debtor filed an assignment under section 49 of the Bankruptcy and Insolvency Act; - the aforenamed trustee was duly appointed trustee of the estate of the debtor. The said trustee is required: - to provide to me, without delay, security in the aforementioned amount; - to send to all creditors, within five days after the date of the trustee's appointment, a notice of the bankruptcy; and - when applicable, to call in the prescribed manner a first meeting of creditors, to be held at the aforementioned time and place or at any other time and place that may be later requested by the official receiver. Date: December 02, 2016, 11:46 E-File/Dépôt Electronique Official Receiver Standard Life Tower, 639 5 Avenue SW, Suite 400, Calgary, Alberta, Canada, T2P0M9, (877)376-9902
Appendix D Chinook Pipeline Ltd. Statement of Affairs (Form 78)