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.

Hello again.

Most of the Court of Appeal civil decisions this week were procedural in nature.  Topics included the standard of review of discretionary orders (deference), municipal law, leave to appeal and stays pending appeal in the CCAA context and the consolidation of appeals to the Court of Appeal as of right with Divisional Court appeals requiring leave.

Have a nice weekend.

Table of Contents

Civil Decisions

Pickering (City) v. Slade, 2016 ONCA 133

Hello again for another week,

Introduction

The Supreme Court of Canada, in a decision that has implications for borrowers and lenders alike, particularly where pension funds are involved, has raised some new hurdles for the country’s banks and their business customers and, at the same time, has bolstered protection for lenders of last resort who finance insolvent companies.

The court’s decision in Sun Indalex Finance, LLC v. United Steelworkers, issued earlier this year, addresses critical questions in insolvency law regarding pension funds and DIP financing. 

In the current economic climate, there has been increased interest from clients and their advisers in using offshore companies in cross-border restructurings. The use of offshore companies in restructurings is often driven by tax and structuring advice, where there is a desire to continue the group operating as a going concern and to achieve a favourable outcome for creditors (usually outside of formal insolvency proceedings).

Such companies can offer a number of advantages when used as part of a restructuring plan, including:

Key Issues

The transaction documents (eg ISDA, GMRA or prime brokerage agreements) for derivatives transactions (or other transactions involving netting provisions) are usually governed by English law or New York law. However, there are a number of local law issues which our clients should consider when proposing to enter into such transactions with offshore counterparties, including the following key issues:

There has been a considerable amount of interest from clients recently on putting Jersey companies holding UK real property and other assets into English administration. Where a Jersey company and its creditors intend to rescue the company as a going concern, or English administration would achieve a better realisation for creditors than a désastre or a winding up, it may be advantageous to commence English administration.