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    The “mirror principle:” a partial "roll up" DIP order can be recognized under Part IV of the CCAA
    2012-06-20

    Prior to the 2009 amendments (the “Amendments”) to the Companies’ Creditors Arrangement Act (the “CCAA”),1  courts exercising jurisdiction under that statute could, in the appropriate circumstances, approve “roll up” debtor in possession (“DIP”) financing arrangements.  While it can take different forms, in essence, a “roll up” DIP loan facility is an arrangement whereby an existing lender refinances or repays its pre-filing loan by way of borrowings under the new DIP loan facility.  The priority status of the charge granted by the court to secure the DIP

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Debtor in possession
    Authors:
    Virginie Gauthier , Adrienne Glen
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Motor vehicles in a consumer insolvency. British Columbia Court of Appeal determines trustees and consumers claims - TRAP for subprime auto lenders revisited
    2012-04-18

    It is always an interesting question as to what rights a lender has with respect to a motor vehicle owned by a consumer who becomes insolvent, and whether a secured creditor is able to seize a motor vehicle in order to satisfy an obligation due under a loan. The answer may be surprising. The recent BC Court of Appeal case, Atwal (Re) (2011 BCSC 687), highlights the rights of a debtor vis-à-vis a trustee in bankruptcy with respect to the ownership of a motor vehicle.

    Filed under:
    Canada, British Columbia, Banking, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Debtor, Secured creditor, British Columbia Court of Appeal
    Authors:
    Suhuyini Abudulai , Jonathan Fleisher
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Québec court: DIP lender has priority over pension plan deficit
    2012-05-21

    In April 2011, the Ontario Court of Appeal rendered a unanimous judgment in Re Indalex Limited which ordered that the amount the debtor was required to contribute towards its pension plan wind up deficiency be paid in higher priority to repayments to its DIP lender. This judgment was a surprise to the legal community. Leave to appeal has since been granted by the Supreme Court of Canada. In November 2011, groups of White Birch employees and retirees (referred to below as employees) filed motions seeking the application of the legal findings of Indalex to White Birch.

    Filed under:
    Canada, Ontario, Banking, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Debtor, Liquidation, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Martin Desrosiers , Sandra Abitan , Julien Morissette
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    U.S. Supreme Court upholds lenders’ credit-bidding rights
    2012-05-30

    The U.S. Supreme Court ruled on May 29, 2012, that secured lenders have the right to credit bid their debt instead of having to pay cash in an auction of their collateral as part of a Chapter 11 plan of reorganization.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, Torys LLP
    Location:
    Canada
    Firm:
    Torys LLP
    BIA and CCAA "lookback periods" for preferential transactions
    2012-02-10

    Lenders should be cognizant that the granting of security by a debtor may be subject to challenge as a fraudulent preference in the event the debtor subsequently files for liquidation or proposal proceedings under the Bankruptcy and Insolvency Act (Canada) (the “BIA”) or restructuring proceedings under the Companies’ Creditors Arrangement Act (Canada) (the “CCAA”). Such risk arises if the debtor is insolvent the time the security was granted.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Osler Hoskin & Harcourt LLP, Debtor, Legal burden of proof, Prima facie, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Richard Borins , Andrea Lockhart
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    Secured creditors beware: Crown GST/HST garnishment may trump your security interest in an account receivable
    2012-02-14

    In the recent decision of the Supreme Court of Canada in Toronto-Dominion Bank and Her Majesty the Queen (2012 SCC 1), the Supreme Court succinctly agreed with the reasons of Justice Noël of the Federal Court of Appeal.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, Tax, Borden Ladner Gervais LLP, Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada, Federal Court of Appeal (Canada), Quebec Court of Appeal
    Authors:
    Roger Jaipargas
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Abuse of the Repair and Storage Liens Act
    2012-03-06

    Lawrence Gold recently presented on abuses of the Repair and Storage Liens Act (Ontario) (“RSLA”) impacting commercial finance and insurance companies to the Ontario Personal Property Security Legislation Committee (“PPSL Committee”). As changes to the RSLA will likely not be implemented in the near future, concerns regarding abuse of lien claimant rights are of significant importance to the industry.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Insurance, Litigation, Cassels Brock & Blackwell LLP, Collateral (finance), Market value
    Authors:
    Jonathan Fleisher , Eleonore Morris
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Reasonable notice: secured creditor’s ability to demand repayment
    2012-03-19

    The common law has long recognized a secured creditor’s duty to provide reasonable notice to borrowers before enforcing its security and appointing a receiver. The practical importance of this has become less significant since the codification of the principle of reasonable notice in section 244 of theBankruptcy and Insolvency Act (“BIA”). However, in the recent case of Bank of Montreal v.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Debtor, Secured creditor, Bankruptcy and Insolvency Act 1985 (Canada)
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Update on the Re Indalex Limited decision
    2012-03-28

    In a recent edition of Fully Secured (September 29, 2011 – Volume 2, No. 3), the decision of the Ontario Court of Appeal in Re Indalex Limited was discussed, in which the Ontario Court of Appeal held that a statutory deemed trust claim arising out of a pension plan wind-up deficiency ranked in priority to debtor in possession (“DIP”) financing.

    There have been several recent developments with respect to this decision since the date of that publication.

    Filed under:
    Canada, Ontario, Banking, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Gowling WLG, Debtor in possession, Court of Appeal for Ontario
    Authors:
    Jeffrey Oliver
    Location:
    Canada
    Firm:
    Gowling WLG
    Restraining notice on bank branch in New York does not restrain accounts located in Canada: court confirms viability of “separate entity rule”
    2012-01-25

    In a decision dated January 11, 2012, a New York court applied the “separate entity rule” to dismiss a judgment creditor’s special proceeding against a garnishee bank, confirming that the rule remains alive and well in New York.  Under the separate entity rule, bank branches are treated as separate legal entities for the purposes of attachment and garnishment.  Where the rule applies, a judgment creditor seeking to restrain a judgment debtor’s bank account must serve the post-judgment restraining notice upon the bank branch where the account is maintained.    

    Filed under:
    Canada, USA, New York, Banking, Insolvency & Restructuring, Litigation, Wilk Auslander LLP, Legal personality, Royal Bank of Canada
    Location:
    Canada, USA
    Firm:
    Wilk Auslander LLP

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