The Supreme Court of Canada decision in Century Services Inc. v. Canada (Attorney General), which arose from the restructuring proceedings of Ted LeRoy Trucking Ltd. and was released on December 6, 2010, is a landmark decision in Canadian insolvency law.

In a client update released earlier this month, we discussed the recent decision of the Ontario Court of Appeal in the CCAA proceedings of Indalex Limited. In that case, the Court decided that Indalex’s pension plan wind-up deficiency claims had priority over Indalex’s CCAA secured lender in the context of that case. Of concern is the "chill" that decision may have on secured lending in Ontario to borrowers that sponsor defined benefit pension plans.

This week, the Ontario Court of Appeal surprised many by deciding that in the context of the CCAA proceedings of Indalex, pension plan deficiency claims can have priority over security held by secured DIP lenders. The Court granted priority for the entire wind-up deficiency of two pension plans over the DIP lender’s security. If not reversed on appeal, the ruling creates a potential worst case scenario for secured lenders in Ontario and could affect availability of credit for all employers who provide defined benefit pension plans for their employees.

Under Delaware law, do creditors of an insolvent limited liability company have the same standing as creditors of insolvent corporations to pursue derivative claims against directors on behalf of the LLC? Most commentators, and some courts, have assumed that the answer was “yes.” However, the Delaware Court of Chancery in CML V LLC v. Bax, No. 5373-VCL, 2010 WL 4517795 (Del. Ch. Nov. 3, 2010), determined that the plain language of the Delaware Limited Liability Company Act (the LLC Act) denies derivative standing to such creditors.

In Ferme CGR Enr, senc (Syndic de) 2010 QCCA 719, the Québec Court of Appeal decided that it is not necessary to put the partners of a Québec general partnership into bankruptcy when the partnership itself is put into bankruptcy. In doing so, the court initially relied upon authorities interpreting the relevant provisions of the Bankruptcy and Insolvency Act. In addition, the court supported its decision with an analysis of the legal nature of Québec general partnerships and, as a result, modified the ownership structure of partnerships in Québec.

Section 330 of the Bankruptcy Code provides a statutory framework for compensation of professionals who are paid from the bankruptcy estate. Compensation awarded under section 330 is afforded administrative expense status under section 503(b)(2) and given second priority in the distribution of an estate pursuant to section 507(a)(2) of the Bankruptcy Code.

At long last, amendments to the Bankruptcy and Insolvency Act (BIA) and theCompanies’ Creditors Arrangement Act (CCAA) have come into force, providing licensees of intellectual property (IP) with some additional level of protection.

Amendments to the Bankruptcy and Insolvency Act (BIA) and the Companies’ Creditors Arrangement Act (CCAA) have recently come into force that purportedly protect licensees of intellectual property (IP) if their licensors become insolvent or bankrupt. There are, however, a number of uncertainties surrounding the scope of protection afforded by these amendments. Until these uncertainties are resolved, licensees may wish to consider augmenting their statutory rights by contractual and other legal mechanisms. A Bankruptcy Remote Entity (BRE) is one potential mechanism.

In Canada, there is more than one insolvency regime available to an insolvent company that wishes to restructure its debts and operations. However, the most commonly used regime for large companies ? and sometimes for smaller companies, because it is the most flexible ? is the Companies’ Creditors Arrangement Act (Canada) (CCAA). The most commonly used regime for smaller companies or less complicated restructurings is proposal proceedings under theBankruptcy and Insolvency Act (Canada) (BIA).

CCAA

There has been no shortage of victims in this financial crisis. Pensions and retirement savings have been severely reduced, jobs have been lost and once powerful financial institutions have failed. But, there is, perhaps, another victim that has largely gone unnoticed: the rule of law.

In his Evil Empire speech before the British House of Commons in June 1982, President Ronald Reagan refocused American political values on the rule of law.