The Debtor’s Freeze: Protecting Your Client’s Assets
I. INTRODUCTION
A. Protecting Assets
Toronto, December 11, 2007 – The number of restructurings in Canada should rise in 2008 due to the serious tightening of the credit market, according to Ogilvy Renault. The tighter market means that when companies have problems and look for money to solve them, they won’t find financing as easily as they have in the past.
On December 14, 2007, Bill C-12 was given Royal Assent. The Bill involves a comprehensive reform of Canada’s insolvency system. A key component of these reforms was the creation of the Wage Earner Protection Program (WEPP). The WEPP provides statutory wage protection for workers when a) their employer becomes bankrupt or subject to a receivership, and b) their employment is terminated as a result.
A. The Restructuring Candidate
In Father & Son Investments Inc. v. Maverick Brewing Corp. (2007), 2007 CarswellAlta 1452 (Alta. Q.B.), Maverick Brewing Corporation (“Maverick”) operated a brewery in Edmonton in space leased from Five Oaks Inc. (“Five Oaks”). The two major creditors of Maverick were Father & Son Investments Inc. (“Father & Son”) and Five Oaks. Pursuant to a postponement and subordination of security interest document, Five Oaks had priority over Father & Son to the assets of Maverick.
LEGEND
What follows are blackline documents outlining amendments to the BIA, CCAA and WEPP which have been passed by the government, but not yet proclaimed in force. It is hoped that these comparisons will serve as a useful tool in providing a comprehensive understanding of what the legislation will ultimately look like, when the proposed amendments are proclaimed in force.
In Meunerie B.L. inc., Re (2007), EYB 2007-126274, 2007 QCCA 1601 (Que. C.A.) affirming (2006), EYB 2006-109274, 2006 QCCS 4914 (Que. S.C.) Meunerie B.L. Inc. (“Meunerie”) made an assignment in accordance with the Bankruptcy and Insolvency Act (“BIA”). At the time of bankruptcy Meunerie was a mill which processed corn purchased from corn producers. Corn that was delivered to Meunerie was stored on site in silos
On June 22, 2007, the federal Budget Implementation Act, 2007 (formerly Bill C-52) received royal assent. Most of the Act came into force on that date, including nearly all of Part 9, which makes important amendments to the eligible financial contract provisions of the Bankruptcy and Insolvency Act (BIA), the Companies' Creditors Arrangement Act (CCAA), the Winding-up and Restructuring Act (WURA), the Canada Deposit Insurance Corporation Act (CDIC Act) and the Payment Clearing and Settlement Act (PCSA).
2007 BCSC 267 (B.C. Supreme Court, Feb. 28, 2007)
Trustee in bankruptcy must affirm swap contracts to take advantage of them but is not personally liable if the contracts end up being out of the money - While contract gave buyer a termination right on bankruptcy, it could choose not to exercise this option and leave it to the trustee to decide whether or not to affirm the swap and take the risk that the estate will end up out of the money
Ontario has introduced a series of significant amendments to the Personal Property Security Act (Ontario) (the PPSA). The last major amendments to the PPSA occurred in 1989. This Osler Update highlights amendments to the PPSA that are of particular interest to court officers of insolvent enterprises and others taking or enforcing security.