A recent decision of the Alberta Queen’s Bench1 has raised some questions about purchase-money security interest (“PMSI”) proceeds and cross-collateralization of assets secured by these types of security interests. It has been suggested that this decision is unique and establishes that using a PMSI as collateral for other indebtedness of the debtor is dangerous. But is this decision really so radical?

Facts:

In a recent decision, the Ontario Superior Court of Justice recognised the English law schemes of arrangement of the Syncreon group under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (“CCAA“). This was the first time a Canadian court was asked to determine whether proceedings under Part 26 of the Companies Act 2006 (the “Companies Act“) could be recognised as “foreign proceedings” under Part IV of the CCAA.

On September 18, 2017, the iconic US-based retailer Toys “R” Us filed for Chapter 11 in the US Bankruptcy Court for the Eastern District of Virginia in front of Judge Keith L. Phillips. The company filed twenty-five entities, explaining that its $5.3 billion debt obligations and operational issues had led to the need for reorganization.

The recent Court of Appeal case involving Topland Limited and Smiths News Trading Limited was a salutary lesson about the strict rules that protect guarantors and the perils of forgetting them.  The facts of the case were relatively simple:  Topland owned a commercial property, leased to the rather aptly named Payless DIY Ltd, which became insolvent.  Topland brought a claim against the tenant’s guarantor, Smiths, for arrears of over £280,000 and required them to take a new lease for the remainder of the term.

A limitation period is the statutory time limit set out in law for a person to file a lawsuit as a result of some loss or damage. Each Canadian province has a specific statutory framework governing limitation periods for legal matters falling under provincial jurisdiction. Many provinces use a “discoverability” scheme under which a person must commence legal proceedings within two years of specific factual elements being “discovered” by the person.

Background

In 2009, the Calgary Airport Authority (CAA) entered into a construction agreement with Iona Contractors Ltd. for Iona to improve CAA’s north airfield. By October 2010, the work was substantially complete; however CAA withheld further payment to Iona on the basis that some of Iona’s subcontractors remained unpaid. Iona assigned into bankruptcy and a dispute arose over the entitlement to the withheld amounts (the Funds).

On December 10, 2016, Ontario’s Forfeited Corporate Property Act, 2015 (the FCPA), comes into force,1 along with related amendments to the Ontario Business Corporations Act (the OBCA).

Introduction

The Alberta Court of Queen’s Bench decision in Redwater Energy Corporation Re, 2016 ABQB 278, written by Chief Justice Neil Wittmann, clarifies that the provisions of the Bankruptcy and Insolvency Act (BIA) addressing the environmental liability of trustees render certain provisions of provincial regulatory legislation addressing wells and pipelines inoperative to the extent they conflict with the BIA.

The Ontario Court of Appeal (Court) recently affirmed the decision of the Ontario Superior Court of Justice in Nortel Networks Corporation (Re) (Nortel),^[1] that the “interest stops” rule applies in proceedings under the 

This article first appeared in the December 2014 edition of Corporate Rescue & Insolvency journal. Written by Deepak Reddy in Dentons' New York office, Carlo Vairo in Dentons’ Toronto office and Alexander Hewitt in Dentons' London office.

Key Points