- In Irving H. Picard v Bernard L. Madoff Investment Securities LLC, BVIHCV 0140/2010, the trustee appointed in the liquidation of the business of Bernard L. Madoff Investment Securities LLC (“Picard” and “BLMIS”) sought, amongst other things, (i) recognition in the BVI as a foreign representative; (ii) an entitlement to apply to the BVI Court for orders in aid of the foreign proceeding; and (iii) an entitlement to require any person to deliver up to him any property of BLMIS.
- Bannister J.
On 15 September 20091 the judge responsible for the Lehman bankruptcy proceedings in the United States held that Metavante Corporation (“Metavante”) could not rely on Section 2(a)(iii) of the ISDA Master Agreement to suspend payments to Lehman Brothers Special Financing, Inc. (“LBSF”). Specifically, Judge Peck held that the safe harbour provisions in the US bankruptcy code protected a non-defaulting party’s contractual rights to liquidate, terminate or accelerate swaps and to net termination values but did not provide a basis to withhold performance under a swap if it did not terminate.
A number of changes have been made to insolvency procedure to remove various discrepancies and controversial practices:
Original Newsletter(s) this article was published in: Commercial Litigation Update: April 2020
The COVID-19 pandemic is, first and foremost, a human and health crisis. Social and physical distancing has been the almost universal response to this pandemic. The effect of social distancing on the economy, however, is significant.
Good afternoon.
Please find below our summaries of this past week’s civil decisions of the Court of Appeal for Ontario. Topics covered included insurance broker negligence, zoning (use) bylaw enforcement, the wrongful termination of a commercial lease and the automatic right of appeal of bankruptcy orders.
On March 6, 2020, the Ontario Court of Appeal (the “OCA”) released its decision in Royal Bank of Canada v. Bodanis (“Bodanis”),1 holding that two debtors, each having an estate exceeding $10,000 in value, had appeals of their bankruptcy orders as of right under section 193 of the Bankruptcy and Insolvency Act2(the “BIA”) and thus did not need to seek leave to appeal.
Section 193 reads as follows:
Whether a former spouse's pension can be shared after bankruptcy depends entirely on where he or she lives
Resolving the way a separated couple’s property is dealt with can be complicated, but it gets even more complex if one of the spouses declares bankruptcy after separation.
In Water Matrix Inc. v Carnevale, Justice Sanfilippo found that a consent judgment may survive bankruptcy if it arises from a claim that is based in fraud. This allowed a company that was defrauded by a former employee to continue to enforce the company’s judgment after bankruptcy.
Background
The Ontario Superior Court of Justice recently reviewed the indicia of a sham trust in McGoey (Re).
Gerald McGoey, an undischarged bankrupt, and his wife, Kathryn McGoey, claimed to be holding two properties in trust for their children. The Trustee in Bankruptcy brought a motion to have the properties declared assets of the Estate of Gerald McGoey, subject to realization for the benefit of his creditors.
Where there is a bankruptcy, there is no personal liability of a secured creditor to the Crown for funds received prior to the bankruptcy from a realization of assets that were subject to the deemed trust under the Excise Tax Act (Canada) (“ETA”).
Factual Background