In a recent decision that is relevant to oil and gas receiverships, the Alberta Court of Queen’s Bench lifted a stay of proceedings against an insolvent operator to allow the non-operating party to enforce its right to take over operatorship pursuant to the CAPL 2007 Operating Procedure.

We previously published Part 1 of our survey of interesting and important developments in Canadian insolvency and restructuring matters in 2017. This post is the second and final part – with an additional seven highlights and cases. You can also find a printable version containing the complete “Top Insolvency Cases and Highlights from 2017” bulletin on our website.

Top Insolvency Cases and Highlights from 2017 With the passing of another year, McCarthy Ttrault's National Bankruptcy & Restructuring Group takes a look at the trends, leading cases and other insolvency highlights from 2017. This publication puts at your fingertips a summary of the year's biggest insolvency cases and developments from across the country and highlights some of the most talked-about cases and issues from 2017, including deemed trusts, the monitor's role in oppression actions, equitable subordination and more. This report was authored by Heather L.

Briefings

A recent ruling by the English High Court in BILTA v RBS1, concerning EU Emissions Allowances (“EUAs” or “carbon-credits”) trading has re-opened the debate on when materials forming part of an internal investigation can benefit from litigation privilege. The decision further undermines the restrictive approach taken by Andrews J in SFO v ENRC2 when applying the “sole or dominant purpose test” to dual-purpose communications.

Background – Emissions Trading Fraud

2017 saw a number of interesting and important developments in Canadian insolvency and restructuring matters. Some of the highlights (which, in certain instances, will continue as issues in 2018 and beyond) are set forth below:

1) Trends: Fewer CCAA Filings and Retail Insolvencies in the News

Introduction

Before July 2016, in order to wind-up a strata corporation voluntarily through a liquidator in B.C., unanimous approval of the strata owners was generally required. The unanimity requirement made strata wind-ups a rare event, and consequently it was exceedingly difficult for owners to sell a strata complex in its entirety for redevelopment. In an influential 2015 report, the B.C. Law Institute (“BCLI”) identified some of the problems with the unanimity requirement:

Joint venture partners commonly enter into operating agreements which grant operators a security interest, referred to as an operator’s lien. Operator’s liens are, for the most part, consensual and contractual security interests subject to the provisions of the Personal Property Security Act, RSA 2000, c P-7 (the “PPSA”) and the priority regime set out therein.

This fall, the NDP and the Bloc Québécois (“Bloc”) have both introduced private member’s bills seeking to amend the Bankruptcy and Insolvency Act(“BIA”) and the Companies’ Creditors Arrangement Act (“CCAA”).

The professional indemnity insurer of an insolvent independent financial adviser (Target) successfully relied on an insolvency exclusion in the policy to deny liability to third party (former) clients of Target1.

In 2005 Target had advised Mr. and Mrs. Crowden to invest £200,000 in a “Secure Income Bond” issued by SLS Capital SA in Luxembourg and Keydata Investment Ltd.2 SLS went into liquidation in 2009.

We have recently profiled conflicting cases (available here and here) dealing with a priority contest between supe