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    Set-off or security interest? Supreme Court’s expansion of enhanced federal deemed trust provisions raises some troubling issues
    2009-10-29

    Caisse Populaire Desjardins de l’Est de Drummond v. Canada, 2009 SCC 29

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, McMillan LLP, Income tax, Personal property, Maturity (finance), Unemployment benefits, Line of credit, Secured creditor, Canada Revenue Agency, Income-Tax Act 1961 (India), Supreme Court of Canada, Federal Court (Canada)
    Authors:
    Robert M. Scavone
    Location:
    Canada
    Firm:
    McMillan LLP
    Comparing US and Canadian rules for debt forgiveness
    2009-10-29

    In the current recession, some North American businesses facing difficulty in meeting their debt obligations may consider the implications of restructuring their debt in Canada or the US. The rules in the two jurisdictions have some similarities, but also some significant differences that should be examined in any such restructuring.

    Filed under:
    Canada, USA, Insolvency & Restructuring, Tax, Cassels Brock & Blackwell LLP, Share (finance), Bankruptcy, Shareholder, Debtor, Interest, Taxable income, Debt, Debt relief, Fair market value, Default (finance), Preferred stock, Bankruptcy discharge, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Lorne H. Saltman
    Location:
    Canada, USA
    Firm:
    Cassels Brock & Blackwell LLP
    Asset sales in the CCAA
    2009-10-30

    Nortel Networks (“Nortel”) brought a motion seeking approval of the sale of various Nortel assets to Nokia Siemens (“Asset Sale Agreement”), and for approval of a Sale Agreement and Bidding Procedures, advanced by Nortel for the purpose of conducting a “stalking horse” bidding process in respect of its Code Division Multiple Access (“CDMA”) and Long-Term Evolution Access (“LTE”) assets. As of the date of the motion, Nortel had yet to propose a formal plan of compromise or arrangement.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Shareholder, Debtor, Economy, Good faith, Voting, Stakeholder (corporate), Companies' Creditors Arrangement Act 1933 (Canada), United States bankruptcy court, US District Court for District of Delaware
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    Supreme Court of Canada rules that the CRA has no claim on the GST component of a bankrupt’s accounts receivable
    2009-10-30

    The Supreme Court of Canada ruled that bankruptcy trustees, receivers and secured creditors can continue to collect the full amount of accounts receivable of a bankrupt supplier, including the Goods and Services Tax (GST) component, even if an amount remains owing by the supplier to the Canada Revenue Agency (CRA).

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, Dentons, Bankruptcy, Debtor, Unsecured debt, Accounts receivable, Debt, Secured creditor, Goods and services tax (Canada), Goods and Services Tax (New Zealand), Canada Revenue Agency, Supreme Court of Canada
    Authors:
    Roger P. Simard
    Location:
    Canada
    Firm:
    Dentons
    New protection for licensees of IP — BIA and CCAA amendments come into force
    2009-10-31

    At long last, amendments to the Bankruptcy and Insolvency Act (BIA) and theCompanies’ Creditors Arrangement Act (CCAA) have come into force, providing licensees of intellectual property (IP) with some additional level of protection.

    Filed under:
    Canada, Insolvency & Restructuring, Intellectual Property, McCarthy Tétrault LLP, Confidentiality, Royalty payment, Bankruptcy, Debtor
    Authors:
    Philippe Boivin , Véronique Wattiez Larose
    Location:
    Canada
    Firm:
    McCarthy Tétrault LLP
    Express trust v. secured creditor of the trustee
    2009-10-20

    Brookfield Bridge Lending Fund Inc. v. Karl Oil and Gas Ltd., 2009 ABCA 99, 5 Alta. L.R. (5th) 1; on appeal from 2008 ABQB 444, 96 Alta. L.R. (4th) 329.

    Vanquish Oil and Gas Corp. (“Vanquish”) operated certain oil wells. Under the 1990 Canadian Association of Petroleum Landman Operating Procedure under which Vanquish operated these wells, Vanquish was to receive well revenues in trust, it could commingle revenues with its other monies, and was to pay the revenues “only to their intended use”.

    Filed under:
    Canada, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Breach of contract, Beneficiary, Secured creditor, Constructive trust, Trustee, Court of Appeal of Alberta
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Bankruptcy and insolvency law amendments declared in force
    2009-10-20

    Insolvency law amendments were declared in force as of September 18, 2009 (the “Amendments”). The Amendments were contained in bills which received Royal assent on November 25, 2005 and on December 14, 2007, but the Amendments were not proclaimed into force until now.

    Filed under:
    Canada, Insolvency & Restructuring, Miller Thomson LLP, Wage, Bankruptcy, Debtor, Fair market value, Secured creditor, Prejudice, UNCITRAL, Title 11 of the US Code, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Eric Sherkin
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Secured party entitled to refuse reinstatement
    2009-10-20

    Philip Gaidy and Judy-Kae McLeod v. Chrysler Financial Services Canada Inc. CV-09-095088-00 (S.C.J.) (Lauwers, J.)

    Gaidy leased a 2007 Dodge truck from Chrysler Financial (“CF”) as lessor. McLeod entered into a conditional sales contract for a 2006 Hummer with CF as vendor.

    Both were chronically late in payment and hid the vehicles. CF recovered the vehicles. Both applied to court to force CF to allow them to re-instate their agreements under s. 66(2) of the Personal Property Security Act (“PPSA”).

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Costs in English law, Personal Property Security Act 1990 (Canada)
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Set off as a “security interest” for payroll super priority rights of CRA
    2009-10-20

    Caisse populaire Desjardins de l’Est de Drummond v. Canada, 2009 SCC 29 (Can LII) (S.C.C.); on appeal from 2006 FCA 366 (Can LII)

    The Caisse granted Camvrac a line of credit of up to $297,000. Camvrac deposited $200,000 with the Caisse subject to a “Security Given Through Savings” agreement (the “Savings Agreement”) and agreed:

    (i) to have the $200,000 on deposit as long as the line of credit was outstanding; and

    Filed under:
    Canada, Banking, Employment & Labor, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Wage, Debtor, Interest, Income tax, Debt, Tax deduction, Unemployment benefits, Common law, Line of credit
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    WEPPA priority for “wages”
    2009-10-20

    Re Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. (2009), 52 C.B.R. (5th) 225, 2009 BCSC 41 (B.C.S.C.)

    Ted LeRoy Trucking Ltd. obtained protection under the CCAA and PriceWaterhouseCooper was its monitor. The debtor tried to restructure and failed, and was assigned into bankruptcy with PriceWaterhouseCooper as its trustee.

    Filed under:
    Canada, Employment & Labor, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Wage, Bankruptcy, Debtor, Trade union, Liability (financial accounting), Secured creditor, Welfare, Trustee
    Location:
    Canada
    Firm:
    Miller Thomson LLP

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