This article was presented at the Canadian Law Conference of The International Council of Shopping Centers in April 2016.

There has been a lot written regarding a landlord’s options and remedies upon the default of a tenant under a commercial lease. This paper explores the considerations to be given specifically to third parties at the time of default and potential termination.

Financial institutions need to be mindful of the effect of the engagement of financial advisors with respect to their special loan clients.

In a decision released April 27, 2016 in LBP Holdings Ltd. v. Allied Nevada Gold Corp., Justice Belobaba dismissed a motion by a representative plaintiff to add certain underwriters as defendants to a securities class proceeding. The defendant gold mining company, Allied Nevada, effected a secondary public offering financed as a "bought deal" by two underwriters.

On May 3, 2016, the Court of Appeal for Ontario released its decision (Leave Decision) denying leave to appeal from Justice Newbould's allocation of the proceeds of sale of the remains of the Nortel Networks group of companies (Allocation Decision).

The main points arising from the decision are as follows:

36778   Ad Hoc Group of Bondholders v. Ernst & Young Inc. in its capacity as Monitor et al.

(ON)

Commercial law – Bankruptcy and insolvency – Interest

Hello everyone,

The Court of Appeal had a busy week and released a number of civil decisions, many of which were procedural in nature – extension of time, leave to appeal, limitation periods, Rule 21. One of these procedural decisions was in the Nortel case, in which the court denied leave to appeal Justice Newbould’s trial decision, apparently bringing the matter substantially closer to a conclusion.

Have a nice weekend.

John Polyzogopoulos

Civil Decisions

Hello everyone.

Except for a brief addendum to an order made in a criminal matter, the Court of Appeal only released civil law decisions this week, which is rare. Topics covered included whether or not leave to appeal a vesting order made on a receivership sale under the Bankruptcy and Insolvency Act is required (it is), an ironic case in which a lawyer initially resisted a professional negligence claim for missing a limitation period by arguing the limitation period had been missed (nice try), insurance law and adjournments.

Trust claims against a borrower’s assets are something that no secured creditor wants to be confronted with. Such claims are often unexpected because they are, for the most part, undetectable. They lurk in the shadows, out of the reach of traditional due diligence measures and PPSA searches. As a result, even the most prudent of creditors can sometimes find themselves facing these undocumented and unquantifiable claims.

A recent Alberta case1 has addressed the proposed use of a plan of arrangement under theCanada Business Corporations Act (“CBCA”) where proceedings under insolvency statutes may be more appropriate.  In Connacher Oil, Connacher Oil and Gas Limited (“Connacher”) and 9171665 Canada Ltd.

In Walchuk Estate v. Houghton, the Ontario Court of Appeal dismissed a motion to quash an appeal on the basis that the lower court’s adjournment of a contempt motion was a final order. The decision also provides guidance, yet again, on the proper test for distinguishing between final and interlocutory orders.

Background