TORONTO — A B.C. billionaire who spent the summer fighting to move a department store she wants to create into former Hudson’s Bay properties has found herself on the losing end of an Ontario Superior Court decision.
Judge Peter Osborne ruled on Friday that landlords for the collapsed retailer will not be forced to accept Ruby Liu as a tenant.
In a 48-page judgment, Osborne said he had “significant concerns” about Liu’s ability to meet the terms of the leases she wanted and found arguments made by landlords fighting her bid to take over properties “compelling.”
HBC declined to comment on his decision, while a spokesperson for Liu did not immediately respond to messages from The Canadian Press. Both parties have the ability to appeal the decision, though neither has announced plans to.
Osborne’s decision was months in the making and came after he waded through 25,600 pages of arguments from HBC, a who’s who of commercial landlords and many investors.
It was back in March that Hudson’s Bay, riddled with $1.1 billion in debt, filed for creditor protection. Unable to find a buyer, it later liquidated its 80 stores and 16 more from Saks, and then turned its attention to assets such as its leases, intellectual property and art.
A lease-bidding process netted a dozen bids for 39 properties. YM Inc., which owns mall brands like Bluenotes, took five for $5.03 million. A landlord took one for $20,000.
But the biggest bid came from Liu, who dreamt of opening a new department store chain named after herself. She wanted up to 28 leases to accomplish the feat and in May, HBC announced it was willing to sell them to her.
Three of them easily won court approval because they were at properties in B.C. malls Liu owns — Woodgrove Centre, Mayfair Shopping Centre and Tsawwassen Mills.
The remaining 25 became one of the most hotly contested issues in HBC’s winddown. Almost as soon as HBC announced it would sell the leases to Liu for $69.1 million, landlords including Cadillac Fairview Corp. Ltd., Ivanhoe Cambridge and Oxford Properties, met with her and came away with a wide array of objections.
Most said they found her unprepared and pointed out that she didn’t even supply them with a business plan initially. While Liu told the media she would create a department store with dining, entertainment and recreation spaces, landlords said those activities weren’t allowed under the leases she wanted to take over.
Even if they were permitted, the landlords said the team she assembled wasn’t the right fit. It featured inexperienced executives who had spent time as real estate agents and early childhood educators rather than retail leaders, they said.
The lack of experience struck Osborne as well.
“While proposals have been made to hire certain former HBC executives and managers, those efforts remain incomplete,” he wrote in his judgment.
“The overall lack of experience at the leadership level represents a significant risk to the operational viability of launching and managing 25 large department stores in the contemplated timeline.”
The business plan Liu eventually produced was “superficial” and an updated one “remains deficient,” he said.
The first plan estimated Liu could have at least 20 of her stores renovated from the rundown state HBC left them in and operating within 180 days of signing leases.
Landlords thought the timeline was unachievable and argued her $400-million budget for the project — money they doubted she had readily available because her malls were $19 million in debt over the last two years — also wouldn’t suffice.
Liu, who made her fortune in Chinese real estate before immigrating to Canada, maintained that her three malls prove she has what it takes. She argued landlords were battling her because she’s an “outsider” and not their preferred tenant.
HBC and Pathlight Capital, the lender that stood to recoup the most from Liu’s deal, said the landlords objected because they wanted their properties back. If they got control of them again, they could lease their most venerable spaces to their pick of tenants — and could charge far more than the below-market rents in HBC’s leases, some of which last for decades.
A return of the properties would also allow landlords to break the spaces into multiple smaller units for use by multiple tenants or redevelop them into mixed-use or residential spaces.
To try to cajole landlords into letting Liu into their properties, HBC gave her deadlines to hire the retailer’s former CEO Liz Rodbell as a consultant and KPMG as a financial adviser and bring back her legal representation. It offered to shave $3 million off the price of the leases in exchange for the moves and threatened to end the deal and keep her $9.4-million deposit, if she didn’t make them.
Liu spruced up her business plan and hired her third set of lawyers but never brought on KPMG or Rodbell. She held hiring fairs and, against her lawyers’ advice, wrote to Osborne to curry favour, landing her a court admonishment.
By July, ReStore, another Bay lender, was growing frustrated. The longer the Liu deal went unfulfilled, the more of ReStore’s capital was being burned on rent and professional fees and the more futile its chances of recovering cash were becoming.
It asked Osborne to kill the Liu deal and tamp down on HBC’s spending by appointing a “super monitor” that would offer more oversight.
Osborne declined to appoint the super monitor, saying it is unlikely to resolve many of the intercreditor disputes in the HBC creditor protection case.
“While super-monitor powers have been granted in numerous cases, they remain the exception and not the rule,” he said.
In making his decision about Liu’s lease bid, Osborne had to consider Section 11.3 of the Companies’ Creditors Arrangement Act, which allows the court to assign leases to a potential tenant against the objections of landlords.
The section asked him to ponder whether Liu is an “appropriate” buyer who will be able to meet the lease obligations and whether her deal has the support of the monitor, a court-appointed, independent third party that regularly reviews HBC’s creditor protection.
Monitor Alvarez & Marsal had said it thinks Liu can meet all her financial obligations but that there’s a “very real risk” she will not be able to succeed with the “monumental” task she’s set up for herself because she is inexperienced and unprepared.
