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    Traps for the unwary – secured creditor obligations under the Wage Earner Protection Program
    2009-07-23

    As we warned in our earlier articles, “Wage Earner Protection Program Act Comes Into Force - Secured Creditors Be Wary” and “Extension of the WEPPA – Further Protection for Employees”, the Wage Earner Protection Program Act (the “WEPPA”) took eff

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Cassels Brock & Blackwell LLP, Wage, Bankruptcy, Debtor, Accounts receivable, Accounting, Personal property, Secured creditor, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Harvey Garman
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    No DIPping allowed
    2009-07-23

    Over the last few years, debtor-in-possession (DIP) loans have become a fixture in Canadian insolvency proceedings. Initially, in Companies’ Creditors Arrangement Act (CCAA) proceedings, courts used inherent jurisdiction to authorize DIP facilities because the statute did not expressly permit them. (Pending legislative changes will put explicit DIP provisions in the CCAA and the Bankruptcy and Insolvency Act (BIA).)

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Bankruptcy, Debtor, Collateral (finance), Mortgage loan, Liquidation, Refinancing, Secured creditor, Prejudice, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    John N. Birch
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    The Chrysler and General Motors restructurings
    2009-07-23

    In the course of fewer than 60 days this summer, the North American automotive industry was fundamentally reorganized and restructured as both General Motors and Chrysler reorganized under Chapter 11 of the United States Bankruptcy Code. Ford was the only one of the “Big 3” not involved in a Court-driven restructuring. Both General Motors and Chrysler, of course, had and indeed continue to have substantial operations in Canada and the Canadian operations were a critical part of the overall restructuring of both companies.

    Filed under:
    Canada, USA, Insolvency & Restructuring, Cassels Brock & Blackwell LLP, Bankruptcy, Market liquidity, US Department of the Treasury, General Motors, Chrysler, Innovation, Science and Economic Development Canada
    Authors:
    Michael Weinczok
    Location:
    Canada, USA
    Firm:
    Cassels Brock & Blackwell LLP
    Directors' liability in the event of bankruptcy
    2009-06-30

    A. THE PROBLEM

    Many charities and associations have cash flow challenges, particularly in the current economic situation. They usually budget to break even financially. If some funding does not materialize as expected, they may be forced to close down. Their directors may be at financial risk as a result.

    Filed under:
    Canada, Employment & Labor, Insolvency & Restructuring, Non-profit Organizations, Borden Ladner Gervais LLP, Wage, Bankruptcy, Legal personality, Interest, Employment contract, Budget, Trade union, Wrongful dismissal, Debt, Liability (financial accounting), Common law, Joint and several liability, Severance package, European Space Agency, Corporations Act 2001 (Australia), Employment Standards Act 2000 (Ontario) (Canada), Canada Labour Code
    Authors:
    Michelle S. Henry
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Stalking horses & break fees
    2009-05-29

    In Re: Nortel Networks Corp. the Ontario Superior Court of Justice considered an application for court approval of the Bidding Procedures pertaining to the sale of Nortel’s “Layer 4-7” business, as well as approval of a “Stalking Horse” bidding process.

    Prior to filing for protection under the CCAA, Nortel decided that the Layer 4-7 business should be sold. Shortly after filing, Nortel agreed to enter into an Asset Purchase Agreement with Radware for the purchase of the Layer 4-7 business (the “Purchase Agreement”).

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Debtor, Stakeholder (corporate), Companies' Creditors Arrangement Act 1933 (Canada), Ontario Superior Court of Justice
    Authors:
    David LeGeyt , David W. Mann
    Location:
    Canada
    Firm:
    Dentons
    Security interest in royalty distributions survives bankruptcy of composer
    2009-06-04

    In a recent decision of the Ontario Superior Court of Justice, the Court rejected a bankrupt music composer’s argument that a security interest the composer had granted in royalty based distributions should be ineffective following his bankruptcy.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Media & Entertainment, Dentons, Royalty payment, Wage, Bankruptcy, Accounts receivable, Bankruptcy and Insolvency Act 1985 (Canada), Ontario Superior Court of Justice
    Location:
    Canada
    Firm:
    Dentons
    Lender strategy in light of new pension priorities
    2009-06-04

    Recent changes to the Bankruptcy and Insolvency Act have given certain unpaid pension plan contributions priority over a lender’s security if the employer is bankrupt or in receivership. How can a lender monitor the debtor’s pension arrears to assess the extent of the lender’s loss of priority?

    The Bankruptcy and Insolvency Act now provides that certain unpaid pension plan claims rank ahead of a lender’s security in bankruptcy or receivership proceedings. Effective July 7, 2008, sections 81.5 and 81.6 give super-priority status to:

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Dentons, Bankruptcy, Debtor, Liability (financial accounting), Defined contribution plan, Defined benefit pension plan, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Ross W. Walker
    Location:
    Canada
    Firm:
    Dentons
    Holiday cheer - Alberta court grants rare extension to unpaid supplier
    2009-06-29

    Unpaid suppliers are generally unsecured in liquidation proceedings. A supplier can elevate its unsecured claim by taking security from the debtor or modifying its supply contract by inserting an effective title retention clause. The supplier may also rely on the BIA unpaid supplier provision to assert a super-priority for the return of its goods.

    Filed under:
    Canada, Alberta, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Bankruptcy, Debtor, Unsecured debt, Liquidation, Secured creditor, Goldman Sachs
    Authors:
    Harvey Garman
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Abitibi CBCA plan of arrangement order has implications for eligible financial contracts
    2009-06-29

    Earlier this year Abitibi-Consolidated Inc. (Abitibi) and various related entities proposed to enter into an arrangement with certain classes of its creditors relying on the plan of arrangement provisions in the Canada Business Corporations Act (CBCA). It is unusual to propose a corporate plan with respect to a company's debt. The CBCA plan of arrangement provision is not fundamentally an insolvency law. The procedure is most often used to restructure securityholder relationships within solvent companies and that is the primary intention.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Stikeman Elliott LLP, Bond (finance), Bankruptcy, Interim order, Swap (finance), Default (finance), Companies' Creditors Arrangement Act 1933 (Canada), Corporations Act 2001 (Australia), Canada Business Corporations Act 1985, Quebec Superior Court
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP
    Broad interpretation of “wages” under WEPPA
    2009-06-30

    The decision of the British Columbia Superior Court in Re Ted Leroy Trucking Ltd. was a result of an application for directions with respect to what amounts are properly covered by the Wage Earner Protection Program Act, S.C. 2005, c. 47 (the “WEPPA”), and the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”).

    Filed under:
    Canada, British Columbia, Employment & Labor, Insolvency & Restructuring, Litigation, Dentons, Wage, Bankruptcy, Liability (financial accounting), Severance package, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons

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