The Companies’ Creditors Arrangement Act (“CCAA“) proceedings involving Carillion Canada and related entities (collectively, “Carillion Canada”) have been an ongoing area of interest for the construction industry since proceedings began in early 2018.

In Chandos Construction v Deloitte Restructuring, the Supreme Court clarified one aspect of bankruptcy law – the scope and application of the anti-deprivation rule – while leaving an unsettled area of contract law – the penalty doctrine – to be resolved for another day. Here, we consider the implications of the newly-clarified anti-deprivation rule as it applies to the construction industry.

Background

The governmental restrictions and social customs implemented to combat the spread of COVID-19 have led to significant fallout throughout the economy. Many companies, particularly those with significant retail, hospitality, and personal services operations, may become insolvent and may have to consider their options for avoiding bankruptcy. Creditors looking to recover from insolvent companies may find their claims subject to a debtor’s reorganization proceedings under the Companies’ Creditors Arrangement Act, RSC 1985, c-36 (“CCAA“).

Subcontractors may find themselves in a difficult position if an owner or general contractor fails to pay for labour and materials provided to a project. This failure to pay may occur for any number of reasons, but is often a result of a dispute or insolvency. One of the most commonly used methods to mitigate the risk of non-payment by an owner or general contractor is the use of labour and material payment bonds.

Frequently a debtor’s assets are sold out of bankruptcy “free and clear” of liens and claims under §363(f).  While the Bankruptcy Code imposes limits on this ability to sell assets, it does allow the sale free and clear if “such interest is in bona fide dispute” or if the price is high enough or the holder of the adverse interest “could be compelled ... to accept a money satisfaction of such interest” or if nonbankruptcy law permits such sale free and clear of such interest.

On February 5, 2016 the IRS released Chief Counsel Advice Memorandum Number 201606027 (the IRS Memo) concluding that “bad boy guarantees” may cause nonrecourse financing to become, for tax purposes, the sole recourse debt of the guarantor. This can dramatically affect the tax basis and at-risk investment of the borrowing entity’s partners or members. Non-recourse liability generally increases the tax basis and at-risk investment of all parties but recourse liability increases only that of the guarantor.

A long-honored concept in real property, that of “covenants running with the land,” is finding its way into the bankruptcy courts. If a covenant (a promise) runs with the land then it burdens or benefits particular real property and will be binding on the successor owner; if that covenant does not run with the land then it is personal and binds those who promised but does not impose itself on a successor owner.

We are often asked what to do if you have an operating agreement and your operator or one of the other working interest owners files for bankruptcy. The Bankruptcy Code allows the debtor to assume or reject the JOA (it is usually an executory contract).

On November 13, 2015, the Federal Deposit Insurance Corporation (FDIC) issued Financial Institution Letter 51-2015 (FIL-51-2015), FDIC Seeking Comment on Frequently Asked Questions Regarding Identifying, Accepting and Reporting Brokered Deposits. FIL-51-2015 seeks comments on the proposed updates to the existing FAQ document on brokered deposits, which was initially released in January of 2015 in FIL-2-2015, after additional comments and questions have been received by the FDIC since the initial issuance.

Under section 363 of the Bankruptcy Code, a debtor is permitted to sell substantially all of its assets outside of a plan of reorganization. Over the past two decades, courts have increasingly liberalized the standards under which 363 sales are approved. A recent decision from the United States Court of Appeals for the Third Circuit,