Imperial Tobacco: who will run the tobacco settlement's foundation

When the three tobacco CCAA plans were sanctioned on August 27, 2025 and implemented two days later, everyone in the room knew they were incomplete. Article 9 of the plans establishes a Cy-près Foundation to hold and distribute a fund; what Article 9 did not do was say who would run it, how its directors would be found, or how anyone would decide which proposals received money.

Those were left as deferred matters, and on August 7, 2026 Justice Kimmel signed three orders — one in each proceeding — that fill them in, per Endorsement of Kimmel J., August 7, 2026, paras. 1, 14.

What was left open

The instruments being amended are the Fourth Amended and Restated Court-Appointed Mediator's and Monitors' Plans of Compromise or Arrangement in respect of each applicant, dated August 27, 2025, approved that day and implemented on August 29. The amendments were identified jointly by the Court-Appointed Mediator and the three monitors, who are also the CCAA plan administrators: FTI Consulting Canada Inc. for Imperial Tobacco, Ernst & Young Inc. for Rothmans, Benson & Hedges, and Deloitte Restructuring Inc. for JTI-Macdonald, per Endorsement of Kimmel J., August 7, 2026, paras. 1, 4.

Six things are addressed, and the list is worth reading as a description of what a court-created charitable foundation actually needs before it can start:

• administrative matters;
• establishment of the Cy-près Foundation management team;
• an independent executive search process to identify candidates for the Foundation Directors, including the Chair, and for the management team;
• the process for selecting the proposals that will receive grants from the Cy-près Fund;
• the position of the Foundation Chair as proposed in the Fourth A&R Plans; and
• the use of capital and income of the Cy-près Fund.

per Endorsement of Kimmel J., August 7, 2026, para. 3.

The particulars sit in paragraphs 12 to 23 of the Joint Factum of the Monitors and CCAA Plan Administrators dated July 31, 2026, and are more fully described in three reports of the same date, July 28, 2026 — FTI's thirty-fourth, Ernst & Young's thirty-second and Deloitte's thirty-second, per Endorsement of Kimmel J., August 7, 2026, para. 4.

Those report numbers are their own commentary on how long these proceedings have run.

The amending power, and why it was already there

The motion was brought under section 20.4(a) of the Fourth A&R CCAA Plans, which permits the Court-Appointed Mediator and the monitors to amend, restate, modify or supplement the plans after the Meeting Order — issued October 31, 2024 — on notice to affected creditors and the tobacco companies, subject to the court's approval.

Justice Kimmel makes a point of where that clause came from: s. 20.4(a) was in the plans that were approved unanimously by affected creditors voting in person or by proxy, per Endorsement of Kimmel J., August 7, 2026, para. 5.

That matters for the objection nobody made. Amending a sanctioned plan a year after implementation invites the question of whether creditors are getting something other than what they voted for. The answer here is that they voted for a plan which said, in terms, that these pieces would be settled later by this mechanism — and all stakeholders were aware at the sanction hearing that the monitors would need to return for further orders on the deferred matters, per Endorsement of Kimmel J., August 7, 2026, para. 6.

Beyond the plan's own clause, the court relies on s. 7 of the CCAA, which gives it specific authority to alter or modify the terms of an approved and sanctioned plan, citing Ontario v. Canadian Airlines Corp. and Algoma Steel, per Endorsement of Kimmel J., August 7, 2026, para. 8.

Notice, and the absence of opposition

Everyone on the Common Service List was served, and none opposed. Notice went out on July 28, 2026, by each monitor serving its report with the amendments and a blackline against the relevant provisions of the applicable plan attached as appendices, per Endorsement of Kimmel J., August 7, 2026, para. 6.