This bulletin is a cross-country update presented by the national Restructuring & Insolvency Group. It discusses the key cases across the country involving debtor-inpossession (DIP) financing, court-ordered charges and other priority claims and disputes in recent Canadian insolvency proceedings.
Introduction
The Commission brought an offering fraud action against two long time residential real estate businessmen, Thomas S. Mulholland and James C. Mulholland, Jr. The two defendants had been in the residential real estate business since the 1990s. By 2008 they had raised about $16 million from investors. Thomas and James Mulholland had about 300 properties and apartment building units.
Section 8 of the Interest Act (Canada) (the Act) was considered by the Ontario Superior Court of Justice in Grant Forest Products Inc. (Re) in the context of an inter-creditor dispute.
Pursuant to a June 27, 2012 tribal resolution, on July 2, 2012, the Santa Ysabel Resort and Casino filed a voluntary chapter 11 bankruptcy petition. The casino is an unincorporated enterprise for economic development owned by the Iipay Nation of Santa Ysabel, a federally recognized Indian tribe. After numerous construction problems during the peak of construction pricing, the casino opened in 2007, just before the drop in the economy.
The Supreme Court of the United States announced its decision in one case this morning:
In Re Indalex Limited, the OCA surprised insolvency, pension and financial services professionals by ruling that pension plan deficiency claims can have priority over the claims of DIP lenders in the context of Companies’ Creditors Arrangement Act proceedings.
On Thursday, December 1, 2011, a three-judge panel of the Supreme Court of Canada granted leave to appeal from the decision of the Court of Appeal for Ontario in Re Indalex.
The rapid collapse of MF Global into bankruptcy amid claims that millions of dollars in customer funds is a key focus for the SEC and CFTC as well as SIPIC this week. Speculation over the outcome of the hearings before Judge Rakoff on the SEC’s settlement with Citigroup is also a key topic in securities litigation this week.
In its previous decision in April the First Tier Tribunal upheld the cross border group relief claims which Marks & Spencer made in respect of its Belgium and German subsidiaries after the subsidiaries had commenced liquidation. The Tribunal held further that, whereas the utilisation of the losses was to be determined by reference to local rules, the unutilised losses had to be re-computed according to UK principles for the purposes of determining the amounts which could be group relieved.