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Top Insolvency Cases and Highlights from 2017

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.

Canada, Ontario, Quebec, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Bankruptcy, Limited liability partnership, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada
Top Insolvency Cases and Highlights from 2017 - Part 1

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

Canada, Ontario, Quebec, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Bankruptcy, Liquidation, Secured creditor, Office of the Superintendent of Financial Institutions (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada, Court of Appeal for Ontario
Court Confirmation of Strata Wind-Up Resolutions - The Experience So Far in B.C.

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:

Canada, British Columbia, Insolvency & Restructuring, Litigation, Real Estate, McCarthy Tétrault LLP, Liquidator (law), British Columbia Supreme Court
Operator’s Liens and the PPSA Priority Regime

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.

Canada, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP
Proposed Amendments to Insolvency Legislation Granting Super-priority to Pension Plan Deficits and Employee Benefits

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”).

Canada, Quebec, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Bankruptcy, Unemployment benefits, Canada Pension Plan Act 1985, Bankruptcy and Insolvency Act 1985 (Canada)
Government reforms to address phoenixing

The Government has released a consultation paper as part of their commitment to ongoing reform of Australia’s corporate insolvency regime.  Phoenix activity refers to both legitimate business rescue activities and serial insolvency to avoid debts.

Australia, Company & Commercial, Insolvency & Restructuring, Gilbert + Tobin, Bankruptcy, Liquidator (law), Subsidiary, Australian Taxation Office
Crown priority under section 222(3) of the Excise Tax Act

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

Canada, Insolvency & Restructuring, Litigation, Tax, McCarthy Tétrault LLP, Bankruptcy, Debtor, Excise, Secured creditor, Canada Revenue Agency, Income-Tax Act 1961 (India), Supreme Court of Canada, Federal Court of Appeal (Canada)
Anti-phoenixing reforms announced

On 12 September 2017, the Hon Kelly O'Dwyer MP, Minister for Revenue and Financial Services, announced the Government's plans to crack down on illegal phoenixing activity (ie, the stripping and transferring of assets from one company to another to avoid paying liabilities) and ensure that those involved face tougher penalties. 

Australia, Insolvency & Restructuring, White Collar Crime, Gilbert + Tobin, Financial regulation, Australian Taxation Office
Director safe harbour and ipso facto insolvency reforms receive Royal Assent

The Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), which introduces a safe harbour for directors of insolvent companies and a stay on the operation of ‘ipso facto’ clauses during and after certain formal insolvency processes, received Royal Assent on 18 September 2017.

Director safe harbour

Australia, Company & Commercial, Insolvency & Restructuring, Gilbert + Tobin, Corporations Act 2001 (Australia)
Alberta Court of Queen’s Bench Reiterates Court’s Discretion to Grant an Interim Financing Charge “Super-Priority” Status in the Face of a Deemed Trust Under the Income Tax Act

This blog’s most recent post considered the Supreme Court of Nova Scotia’s June 2017 decision of Rosedale Farms Limited, Hassett Holdings Inc., Resurgam Resources (Re) (“Rosedale”) where the Cou

Canada, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Secured creditor, Canada Revenue Agency, Bankruptcy and Insolvency Act 1985 (Canada)