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    Enforceability opinions – the ongoing need for indemnities
    2010-04-14

    In dealing with collateral provided by a third party to support the obligations of the prime debtor, lenders and their counsel need to remember the impact of the federal Bankruptcy and Insolvency Act.

    Ontario’s Personal Property Security Act (PPSA) was amended to broaden the definition of the word “debtor.” However, the Bankruptcy and Insolvency Act’s (BIA) definition of a “secured creditor” is still restricted to a person holding a charge or a lien “as security for debt due or accruing to the person (lender) holding the debt.”

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Miller Thomson LLP, Shareholder, Debtor, Collateral (finance), Interest, Debt, Secured creditor, Secured loan, Bankruptcy and Insolvency Act 1985 (Canada), Uniform Commercial Code (USA), Personal Property Security Act 1990 (Canada)
    Authors:
    Jennifer Babe , Andre Kuyntjes
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Canwest Global case further considers new CCAA
    2010-01-26

    The December issue of our e-communiqué considered Justice Pepall’s October 13, 2009 decision to grant CCAA protection to Canwest Global Communications Corporation and a number of related entities. As noted, the decision functions as an excellent guide to the recent legislative amendments affecting the grant of an initial order.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Debtor, Stakeholder (corporate), Innovation, Science and Economic Development Canada, Companies' Creditors Arrangement Act 1933 (Canada)
    Authors:
    David Ward
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Nortel update – stay extended; Ontario Court of Appeal affirms non-payment of termination and severance
    2010-01-26

    Extension of stay and Settlement Agreement

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Tax, Cassels Brock & Blackwell LLP, Debtor, Liquidation, Transfer pricing, Stakeholder (corporate), Severance package, Employment Standards Act 2000 (Ontario) (Canada), Supreme Court of Canada, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Directors’ and officers’ liabilities in an insolvency context
    2010-02-05

    Directors and officers of corporations are often subject to potential personal liabilities as a result of their positions. This potential for personal liability may be increased in the insolvency context, where a corporation’s creditors will seek to collect on certain debts from alternate sources, such as directors and officers. Directors and officers often utilize insurance and various court mechanisms in order to mitigate their personal liabilities.

    Filed under:
    Canada, Company & Commercial, Insolvency & Restructuring, Insurance, Norton Rose Fulbright, Wage, Fiduciary, Board of directors, Misconduct, Income tax, Debt, Liability (financial accounting), Gross negligence, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Evan Cobb
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    New risks and rewards for licensors and licensees in BIA/CCAA amendments
    2010-02-08

    On September 18, 2009, after years of Parliamentary delay dating back to 2005, wide-ranging amendments to Canada’s Companies’ Creditors Arrangement Act (CCAA) and Bankruptcy and Insolvency Act (BIA) (the “Amendments”) came into force, providing, among other things, new protections for licensees of intellectual property.

    It is important to note that the Amendments only apply in the CCAA restructuring and BIA proposal context, and not to conventional bankruptcies or receiverships.

    Filed under:
    Canada, Insolvency & Restructuring, Intellectual Property, Norton Rose Fulbright, Bankruptcy, Debtor, Waiver, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Evan Cobb , Brad Newman
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Review of the Jameson House restructuring
    2009-11-27

    Jameson House Properties Ltd. and Jameson House Ventures Ltd. (the Jameson Companies) were incorporated to develop a 37-storey mixed-use building in downtown Vancouver called Jameson House. By 2008, after many years of planning and development, the Jameson House project was well underway.

    Filed under:
    Canada, Construction, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Legal personality, Debtor, Liquidation, Cashflow, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    John R. Sandrelli , David A. Goult , Robert G. Nikelski , Jordan Schultz
    Location:
    Canada
    Firm:
    Dentons
    Reorganization of multi-unit residential developments
    2009-11-30

    Over the last two years, with the fluctuations in the economic market, commercial real estate in distress has become a lively topic among insolvency practitioners and even in court decisions.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Real Estate, Dentons, Debtor, Commercial property, Foreclosure, Condominium, Secured loan
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    Classification of creditors under the CCAA
    2009-11-30

    In a corporate reorganization under the Companies’ Creditors Arrangement Act (the “CCAA”), the design of appropriate classes of creditors can be central to the success of the restructuring initiative. The requisite “double majority” for a plan of arrangement to be approved, being a majority in number and two thirds by value of support from creditors, is required per class in order to be binding on that class.

    Filed under:
    Canada, Insolvency & Restructuring, Dentons, Debtor, Unsecured debt, Interest, Consideration, Debt, Liability (financial accounting), Liquidation, Common law, Constitutional amendment, Companies' Creditors Arrangement Act 1933 (Canada)
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    CCAA court approves a key employee retention plan for both Canadian and US affiliates
    2009-11-30

    On October 13, 2009, Arclin Canada Ltd./Arclin Canada Ltee. (“Arclin”), who is restructuring under CCAA proceedings and whose American affiliates are restructuring under Chapter 11 of the U.S. Bankruptcy Code, sought the approval of key employee retention program (“KERP”) agreements with its Chief Executive Officer and its Chief Financial Officer, and sought sealing orders with respect of the agreements. The KERP was approved by Justice Hoy. The following are some noteworthy points from this case.

    Filed under:
    Canada, Insolvency & Restructuring, Dentons, Confidentiality, Board of directors, Swap (finance), Debt, Economy, Prejudice, Companies' Creditors Arrangement Act 1933 (Canada), Chief executive officer, Chief financial officer
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    Bankruptcy and insolvency amendments aid IP licensees, but are they enough?
    2009-12-01

    With many companies going through financial trouble, there is a fear among licensees that they will lose their right to use licensed intellectual property ("IP") if the licensor becomes insolvent and wants to restructure. Up until now there has been much uncertainty in the common law as to whether an insolvent debtor may disclaim an IP licence agreement in a restructuring.

    Filed under:
    Canada, Insolvency & Restructuring, Intellectual Property, McMillan LLP, Bankruptcy, Debtor, Common law, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Location:
    Canada
    Firm:
    McMillan LLP

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