The Supreme Court of Canada’s recent decision in Canada v.Canada North Group Inc.[1] provided much needed clarity regarding the order of priority for unremitted source deductions in restructuring proceedings.

Chapter 11 plans of reorganization provide creditors with recoveries (cash or new securities) in exchange for a release and discharge of all claims against the debtor. Many Chapter 11 plans go a step further to release claims against related entities and persons who are not debtors in the case. Members of Congress have recently proposed legislation that could prohibit such nonconsensual third-party releases.

Suppliers and subcontractors in the construction industry should be mindful of a recent unreported decision of the Ontario Superior Court of Justice. In Carillion Canada Inc. (Re), the Court held that an automatic cash sweep of Carillion’s Ontario bank account rid the funds of their trust character leaving Carillion’s subcontractors in Canada with no proprietary claim to $22 million sitting in an overseas bank account maintained with a global bank (the “Bank”).

After a sluggish year in 2020 for mergers and acquisitions among hospitals and health systems, 2021 has shown renewed vigor and is poised for considerable transactional activity.

The ability to assume or reject executory contracts is one of the primary tools used by debtors in a Chapter 11 reorganization. Where a debtor has a contract with a third party that is “executory”—meaning that ongoing performance obligations remain for both the debtor and the contract counterparty on the date of the bankruptcy filing—the debtor can choose to either assume or reject the contract under 11 USC § 365.

Subordination agreements are generally enforced in accordance with applicable non-bankruptcy law in bankruptcy cases. The decision in In re Fencepost Productions, Inc., No. 19-41542, 2021 WL 1259691 (Bankr. D. Kan. Mar. 31, 2021) recognizes limits to this rule. While the subject subordination agreements were generally enforceable, the assignment of Chapter 11 voting rights in such agreements was not.

On 20 May 2021, the UK government published a consultation paper in which it set out its proposals to revise the current regime for insolvent insurers (excluding Lloyd’s underwriters). The proposals seek to clarify and enhance aspects of the existing “write-down” power of the court under Section 377 of the Financial Services and Markets Act 2000.

Most corporate bankruptcy filings result in either a plan of reorganization under Chapter 11 of the Bankruptcy Code (the Code) or a liquidation under Chapter 7 of the Code. Sometimes, however, neither option is viable and the debtor may need to seek a “structured dismissal” in accordance with Section 349 of the Code. Structured dismissals provide administratively insolvent debtors with a framework to distribute the estate’s remaining assets (without the additional cost of a Chapter 7 liquidation), wind down the estate, and obtain final dismissal of the case.

Reverse vesting orders (or “RVOs”) allow the realization of value from assets of a debtor company in circumstances where a traditional transaction model is not effective, preserving the value of permits, tax losses and other assets which cannot be transferred to a purchaser. Two recent decisions demonstrate the willingness of courts to embrace creative solutions, where appropriate, to realize value for stakeholders.

What is a Reverse Vesting Order?

The Alberta Court of Appeal recently released a decision in Bellatrix Exploration Ltd.’s (“Bellatrix”) proceedings under the Companies’ Creditors Arrangement Act (“CCAA”), in which the Court dismissed Bellatrix’s appeal of the lower court’s decision that certain agreements (the “Contract”) between Bellatrix and BP Canada Energy Group ULC (“BP”) constituted an eligible financial contract (“EFC”).