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Supreme Court of Canada rules construction arbitration agreement “inoperative” in the face of insolvency proceedings

The Supreme Court of Canada's ("SCC") recent decision in Peace River Hydro Partners v.

Canada, British Columbia, Insolvency & Restructuring, Litigation, Gowling WLG, Receivership, Supreme Court of Canada, British Columbia Court of Appeal
Construction owner receivership: Clarifying construction lien holdback priority when there are multiple building mortgages

It is common for construction project owners to finance projects through multiple mortgages, especially in times of rising construction costs. However, when an insolvency situation arises, holdback priority claims from contractors and subcontractors are particularly complex when there are multiple building mortgages involved. The Ontario Superior Court (Commercial List) provided new clarity in this regard in its April 29, 2022 decision in BCIMC Construction Fund Corp. et al.

Canada, Construction, Insolvency & Restructuring, Litigation, Projects & Procurement, Gowling WLG, Insolvency, Receivership
Ontario Court of Appeal: A debtor's assurances may prolong the discoverability of a creditor's claim for non-payment

Understanding limitation periods are of crucial importance in the construction industry, particularly when a contractor is faced with unpaid invoices for services or materials rendered. The Ontario Court of Appeal stepped back into the spotlight in this regard with its decision in Thermal Exchange Service Inc. v Metropolitan Toronto Condominium Corporation No. 1289, 2022 ONCA 186, in holding that a defendant's assurances may prolong the "discoverability" of a claim for non-payment.

Background

Canada, Ontario, Insolvency & Restructuring, Litigation, Gowling WLG, Court of Appeal for Ontario
Urbancorp cumberland 2 GP Inc. (re), 2020 ONCA 197: trusts under the construction act in the context of insolvency proceedings

In a decision released on March 11, 2020, the Ontario Court of Appeal provided reassurance for those in the construction industry of the effectiveness of section 9(1) of the Construction Act, RSO c C.30 (“CA”) in insolvency proceedings. This decision did not overturn the previous decision rendered in Re Veltri Metal Products Co (2005), 48 CLR (3d) 161 (Ont CA) (“Veltri”); rather, the Court of Appeal distinguished the two cases on the facts.

Canada, Ontario, Construction, Insolvency & Restructuring, Litigation, Gowling WLG
Down but not out (of the money): Are underwater interest holders entitled to a share of the premium on a sale free and clear of liens under US Bankruptcy Code section 363?

Bankruptcy Code section 363(f) allows a debtor to sell an asset free and clear of interests (such as liens and leases) under certain conditions − for example, if the interest is subject to a bona fide dispute, the interest holder consents, or the debt secured by the lien is fully satisfied.

USA, Insolvency & Restructuring, DLA Piper
Noble Energy Inc. v ConocoPhillips and undisclosed executory contracts

Twenty years after Noble Energy, Inc. acquired assets from the bankruptcy estate of Alma Energy Corp., ConocoPhillips, Co. asserted a US$63 million claim against Noble regarding the acquisition.

USA, Texas, Insolvency & Restructuring, Litigation, DLA Piper, European Securities and Markets Authority
Barbarians at the (Marble)gate?

Restructurings are all about alternatives. It is one thing for a creditor to hold an instrument that entitles it to payment of $X on Y date. But if the debtor does not have the cash to satisfy the obligation when due, some type of restructuring must occur.

USA, New York, Insolvency & Restructuring, Litigation, DLA Piper, Debtor