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    Supreme Court rules that GST debt is unsecured under CCAA
    2011-02-02

    The Supreme Court of Canada recently ruled in the Century Servicesi case that Goods and Services Tax (“GST”) deemed trusts under the federal Excise Tax Act (“ETA”) are ineffective in proceedings under the Companies’ Creditors Arrangement Act (“CCAA”).

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, Cassels Brock & Blackwell LLP, Bankruptcy, Debtor, Unsecured debt, Debt, Excise, Liquidation, Secured creditor, Goods and services tax (Canada), Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of the United States, Supreme Court of Canada
    Authors:
    Larry Ellis
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Exempting a bulk sale during the NOI to file a BIA proposal
    2011-02-02

    Outdoor Broadcast Networks Inc (Re), 2010 ONSC 5647

    The debtor had filed a notice of intention to make a proposal (“NOI”) to its creditors under the BIA. It was proposing to immediately sell certain assets in Ontario and BC to help it fund its proposal. As the proposal had not yet been made, the debtor was the one selling assets out of the ordinary course, and the sale was subject to the Ontario Bulk Sales Act. That Act does not apply to sales by bankruptcy trustees, receivers, sheriffs, or other liquidators for the benefit of creditors.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Bankruptcy, Debtor, Computer network, Vesting, Liquidator (law), Trustee
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    "Wages” under the Wage Earner Protection Program Act (“WEPPA”)
    2011-02-02

    Century Services Inc. v. Canada (Attorney General), [2010] S.C.C.A. No. 259, on appeal from (2009) 319 D.L.R. (4th) 735 (BCCA)

    The union on behalf of the unionized employees of Ted Leroy Trucking Ltd., the bankrupt employer, had applied to the B.C.S.C. for directions and obtained a decision of that Court that the “wages” protected under the WEPPA “superpriority” for unpaid employees included amounts paid by the employer to third parties on behalf of the employees.

    Filed under:
    Canada, British Columbia, Employment & Labor, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Wage, Bankruptcy, Trade union, Involuntary dismissal, Secured creditor, Supreme Court of Canada
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Supreme Court of Canada settles Excise Tax Act priorities in CCAA action
    2011-02-08

    MARY BUTTERY WINS IMPORTANT CASE FOR CENTURY SERVICES INC.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, DLA Piper, Bankruptcy, Debtor, Excise, Unemployment benefits, Secured creditor, Goods and services tax (Canada), Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada
    Location:
    Canada
    Firm:
    DLA Piper
    Circular priorities – court of appeal upholds lower court’s decision
    2011-02-17

    In April 2010, we reported on the decision of the Ontario Superior Court of Justice (the “Superior Court”) in In the Matter of the Proposal of C.I.F. Furniture Limited (“CIF”) which dealt with the question of circular priorities. This decision was recently upheld by the Ontario Court of Appeal (“Court of Appeal”). The Court of Appeal’s decision will offer some comfort to lenders where intercreditor agreements exist between some but not all of the secured lenders of a borrower.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Debtor, Interest, Court of Appeal of England & Wales, Court of Appeal for Ontario, Ontario Superior Court of Justice
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    The Century Services case - getting the Crown's priorities straight
    2011-02-18

    Introduction

    The decision of the Supreme Court of Canada last month in Century Services Inc. v. Canada1 is of striking interest to the tax and insolvency bars. The Court considered Crown priorities, in particular, the various “deemed trust” provisions found in section 227 of the Income Tax Act (Canada),2 section 86 of the Employment Insurance Act,3 section 23 of the Canada Pension Plan (the “CPP”)4 and in particular section 222 of the Excise Tax Act (GST Portions).5

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, Dentons, Bankruptcy, Debtor, Statutory interpretation, Income tax, Withholding tax, Liquidation, Tax deduction, Unemployment benefits, Secured creditor, Canada Pension Plan Act 1985, Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Dentons
    Supreme Court of Canada: GST deemed trusts are inoperative in CCAA proceedings
    2010-12-23

    On December 16, 2010, the Supreme Court of Canada ( SCC) released its decision in Re Ted Leroy Trucking Ltd. In its decision, the SCC affirmed the importance of the Companies’ Creditors Arrangement Act (CCAA) as a flexible restructuring tool, and clarified the source and limits of the Court’s authority during CCAA proceedings. Furthermore, the Court overruled the judgment of the B.C.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy, Debtor, Excise, Liquidation, Good faith, Majority opinion, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Court of Appeal of England & Wales, Supreme Court of Canada, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Priority of unpaid fuel taxes
    2011-01-05

    In our last Financial Services Flash, we emphasized the issue that lenders need to be aware of specific restrictions that may apply to the liquidation of inventory over which they have security. This Flash considers the general notion that a lender needs to be cognizant of some unique and sometimes unexpected liabilities of the borrower which may take priority over such lender’s security. There are, of course, many ‘priority payables’ which are commonly known, whether they relate to unpaid wages, certain sales taxes, pension plan obligations, etc.

    Filed under:
    Canada, Insolvency & Restructuring, Shipping & Transport, Tax, Aird & Berlis LLP | Aird & McBurney LP, Wage, Bankruptcy, Debtor, Debt, Liability (financial accounting), Liquidation, Bank reserves, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Supreme Court of Canada judgment: limiting Crown claims for unremitted sales taxes in CCAA cases
    2011-01-12

    On December 16, 2010, the Supreme Court of Canada determined that in Companies’ Creditors Arrangement Act (“CCAA”) reorganization proceedings, the Crown enjoys no super-priority status in relation to its claims for unremitted sales taxes arising under the Goods and Services Tax (the “GST”) or similar provincial sales taxes.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, McMillan LLP, Goods and services tax (Canada), Companies' Creditors Arrangement Act 1933 (Canada), Supreme Court of Canada
    Location:
    Canada
    Firm:
    McMillan LLP
    The recognition of foreign insolvency proceedings
    2011-01-19

    In the Ontario case of Re Xerium Technologies Inc., the Superior Court of Justice (the “Ontario Court”) was asked to recognize an order made by the U.S. Bankruptcy Court for the District of Delaware (the “U.S. Court”) approving a prepackaged plan of reorganization (the “Plan”) of the debtors, Xerium Technologies Inc. and its subsidiaries (collectively, “Xerium”), made under Chapter 11 of the United States Code (the “U.S. Bankruptcy Code”).

    Filed under:
    Canada, USA, Ontario, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Conflict of laws, Surety, Debtor, Interest, Debt, Liquidation, Supplemental jurisdiction, US Code, Title 11 of the US Code, Companies' Creditors Arrangement Act 1933 (Canada), United States bankruptcy court, US District Court for District of Delaware
    Location:
    Canada, USA
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP

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