In the recent case of Re I. Waxman & Sons Limited (“Waxman”), the Ontario Superior Court of Justice reviewed the treatment in Canada of the doctrine of equitable subordination. Developed in American jurisprudence, the doctrine permits the claims of one creditor to be subordinated to the claims of another or other creditors of equal rank if circumstances warrant, on the basis of the equitable jurisdiction of the court.
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
All businesses know that one key to profitability is risk management. Particularly in such industries as oil and natural gas, eligible financial contracts have emerged as an invaluable tool to hedge the risk associated with volatile foreign currency exchange, interest rates and commodity prices. Indeed, a large business has developed proffering over-the-counter derivatives (or ‘swaps’) and standardized exchange-traded derivatives (or ‘futures’) to do just that.
Courts will only rarely and sparingly interfere with contractual rights that parties freely negotiate and agree upon.
However, in Protiva Biotherapeutics Inc. v. Inex Pharmaceuticals Corp., the British Columbia Court of Appeal recently determined that it could adjust contractual rights in order to achieve a workable plan of arrangement proposed by a company under the British Columbia Business Corporations Act (“Act”).
Second and third time personal bankruptcies are uncommon, but fourth time bankruptcies are so rare they deserve recognition. The Supreme Court of British Columbia was recently presented with one such instance when Mr. Douglas Kusch applied for a discharge from his fourth bankruptcy.
In the Spring of 2007, Canada’s Parliament amended several federal insolvency statutes so as to transfer the definition of the class of protected contracts known as “eligible financial contracts” (EFCs) from the federal insolvency statutes themselves to their respective associated regulations. On November 15, the Treasury Board approved the finalized regulations to the Bankruptcy and Insolvency Act, the Winding-up and Restructuring Act, the Companies’ Creditors Arrangement Act, and the Canada Deposit Insurance Corporation Act.
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