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    Bank of Montreal v. Peri Formwork Systems Inc.
    2012-01-20

    In the recently released Judgment in Bank of Montreal v. Peri Formwork Systems Inc.1, the British Columbia Court of Appeal was called upon to decide whether a Monitor, under the Companies’ Creditors Arrangement Act (“CCAA”)2, or a Receiver, under the Builders Lien Act 3, could borrow monies to complete a development project in priority to claims of builder’s liens registered against the project.

    Filed under:
    Canada, British Columbia, Construction, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP
    Authors:
    Edward J.T. Wang
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Insolvency watch - Catalyst paper seeks US court protection but will continue normal operations
    2012-01-23

    Catalyst Paper Corporation (TSX:CTL) has taken the unusual step of publicly announcing that, although it is not in bankruptcy, the company is seeking court protection under Chapter 15 of the US Bankruptcy Code.

    The Richmond, BC-based company reported earlier that it had received an initial court order under the Canada Business Corporations Act (CBCA) to begin a consensual restructuring process with its noteholders. It made the new announcement to correct allegations of bankruptcy that appeared in some media reports following its initial statement.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Debt
    Authors:
    Joseph Bellissimo , Larry Ellis , Bruce Leonard , Eleonore Morris , David Ward
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    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
    Supreme Court of Canada sets date to hear Indalex appeal
    2012-01-30

    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.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Blake, Cassels & Graydon LLP, Beneficiary, United Steelworkers, Supreme Court of Canada
    Location:
    Canada
    Firm:
    Blake, Cassels & Graydon LLP
    Secured creditors may assert priority over proceeds of a fraudulent preference action
    2012-01-30

    In the decision of Justice Morawetz of the Ontario Superior Court of Justice (Commercial List) (the “Court”) in In the Matter of Aero Inventory (UK) Limited and Aero Inventory PLC, the Court held that proceeds of a fraudulent preference action recovered by a trustee in bankruptcy under section 95 of the Bankruptcy and Insolvency Act (“BIA”) may be subject to the rights of secured creditors, to the extent secured creditors had rights in the collateral in question at the time of the impugned transaction.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy, Unsecured debt, Collateral (finance), Secured creditor, High Court of Justice (England & Wales)
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Supreme Court decision in Toronto-Dominion Bank v. Her Majesty the Queen: garnishment notices regarding unpaid GST remain valid after bankruptcy
    2012-01-30

    In a succinct decision rendered on January 12, the same day as the hearing, the Supreme Court of Canada finally settled the question of whether requirements to pay, issued pursuant to section 317 of the Excise Tax Act ("ETA") prior to the bankruptcy of a tax debtor, but not paid before such time, remain valid against the garnishee.1 Supreme Court Justice LeBel, speaking on behalf of the Court, simply stated that the Court agreed with the reasons of Noël J.A. of the Federal Court of Appeal.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, Tax, Stikeman Elliott LLP, Bankruptcy, Debtor, Supreme Court of Canada, Federal Court of Appeal (Canada)
    Authors:
    Jean-Guillaume Shooner
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP
    U.S. bankruptcy court bars tolling of fraudulent conveyance look-back period
    2012-02-02

    A U.S. bankruptcy judge in Delaware has held that the two-year "look-back" period in which a transfer occurring within two years of the bankruptcy petition filing date may be avoided, under Section 548 of the U.S. Bankruptcy Code, cannot be equitably tolled. After some inconsistent orders about whether the courts may broaden the look-back period, this decision should give greater certainty to lenders when evaluating their exposure upon the commencement of a bankruptcy case by a borrower.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Torys LLP, Debtor, Statute of limitations, United States bankruptcy court
    Authors:
    Alison D. Bauer , Darien G. Leung
    Location:
    Canada
    Firm:
    Torys LLP
    Supreme Court of Canada grants leave to appeal Re Indalex
    2011-12-20

    On December 1, 2011, the Supreme Court of Canada granted leave to appeal the decision of the Ontario Court of Appeal in Re Indalex Limited, 2011 ONCA 265, which we summarized here.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Heenan Blaikie LLP, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Mark Newton
    Location:
    Canada
    Firm:
    Heenan Blaikie LLP
    In the Matter of the Bankruptcy of TNG Acquisition Inc. (successor estate of estate of
    2011-12-20

    2011 ONCA 535 (Released July 28, 2007)

    Landlord and tenant – Repudiation of Lease – Companies' Creditors Arrangement Act Proceedings

    In June 2011, EDS Canada Corp. ("EDS") subleased premises to NexInnovations ("Nex"). On October 2, 2007, Nex obtained creditor protection under the CCAA (the "Initial Order"). The Initial Order gave Nex the right to "vacate, abandon or quit any leased premises and/or terminate or repudiate any lease…"

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Real Estate, WeirFoulds LLP, Bankruptcy, Landlord, Leasehold estate
    Authors:
    Rachel Waks
    Location:
    Canada
    Firm:
    WeirFoulds LLP
    Insolvency watch - national clothing chain to be sold under CCAA protection
    2012-01-05

    A Toronto-based clothing retailer that operates more than 100 locations in shopping malls across Canada has received court protection to support its restructuring and eventual sale.

    Clothing for Modern Times Ltd. (“CMT”) designs and markets men's and women's clothing and accessories through its Urban Behaviour (“UB”), Costa Blanca (“CB”) and Costa Blanca X (“CBX”) branded stores.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP
    Authors:
    Joseph Bellissimo , Larry Ellis , Bruce Leonard , Eleonore Morris , David Ward
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP

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