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    Employees’ claims in Canadian bankruptcy and receivership proceedings
    2012-06-28

    In turbulent and uncertain financial times, employers and employees more often than ever find themselves immersed in and affected by insolvency proceedings. Particularly for employees, there is often misunderstanding and misinformation respecting the nature of the proceedings and employees’ rights thereunder. In this article, after a brief description of the most common forms of insolvency proceedings in Canada, the rights and entitlements of employees under these proceedings will be discussed.

    Bankruptcy

    Filed under:
    Canada, Employment & Labor, Insolvency & Restructuring, Norton Rose Fulbright, Wage, Bankruptcy, Debtor, Bankruptcy and Insolvency Act 1985 (Canada)
    Location:
    Canada
    Firm:
    Norton Rose Fulbright
    The “mirror principle:” a partial "roll up" DIP order can be recognized under Part IV of the CCAA
    2012-06-20

    Prior to the 2009 amendments (the “Amendments”) to the Companies’ Creditors Arrangement Act (the “CCAA”),1  courts exercising jurisdiction under that statute could, in the appropriate circumstances, approve “roll up” debtor in possession (“DIP”) financing arrangements.  While it can take different forms, in essence, a “roll up” DIP loan facility is an arrangement whereby an existing lender refinances or repays its pre-filing loan by way of borrowings under the new DIP loan facility.  The priority status of the charge granted by the court to secure the DIP

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Debtor in possession
    Authors:
    Virginie Gauthier
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Ontario Superior Court confirms third-party releases are permitted in BIA proposals
    2012-04-13

    In the Kitchener Frame Ltd1 decision, the Ontario Superior Court of Justice (Commercial List) confirmed that third-party releases in proposals made under the BIA2 are permitted. In doing so, the Court relied on the principle that the BIA and CCAA3 ought to be read and interpreted, harmoniously. Finally, the Court sanctioned a consolidated proposal on the basis it met the requirements set out in section 59(2) of the BIA.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Ontario Superior Court of Justice
    Authors:
    Virginie Gauthier
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Ontario Superior Court rules on priorities in insolvency proceedings of environmental orders for historical contamination
    2012-03-20

    The Ontario Superior Court of Justice (Commercial List) has confirmed that historical environmental remediation obligations will not automatically take priority over the claims of other creditors in an insolvency, even where those obligations are framed in the form of regulatory orders.

    Filed under:
    Canada, Ontario, Environment & Climate Change, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Ontario Superior Court of Justice
    Authors:
    Alan B. Merskey
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Ontario Commercial Court rules proceeds of bia preference action subject to rights of secured creditors
    2011-08-25

    On August 18, 2011, Mr. Justice Morawetz, of the Ontario Superior Court of Justice, released an important decision in regard to preference actions in the matter of Tucker v. Aero Inventory (UK) Limited (together with Aero Inventory plc, Aero).

    Background

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Bankruptcy, Unsecured debt, Legal burden of proof, Secured creditor, Unsecured creditor, Bankruptcy and Insolvency Act 1985 (Canada), High Court of Justice, Ontario Superior Court of Justice, Trustee
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Identifying and managing the risks of corporate directorship
    2011-02-25

    Shareholder claims and corporate bankruptcies are on the rise.

    Filed under:
    Canada, Company & Commercial, Insolvency & Restructuring, Norton Rose Fulbright, Bankruptcy, Shareholder
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    Representative counsel motions may impose greater costs on secured creditors than were bargained for
    2010-06-01

    The restructuring proceedings of Canwest Publishing Inc and affiliated entities (“Canwest”) has recently provided secured lenders and particularly debtor-in-possession lenders with some food for thought.

    In March of this year, four former non-unionized employees of Canwest brought a motion in the Ontario Superior Court of Justice (the “Court”) for the appointment of representative counsel to protect the interests of themselves and similarly situated former employees in the Canwest Companies’ Creditors Arrangement Act (“CCAA”) restructuring proceedings.

    Filed under:
    Canada, Employment & Labor, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Costs in English law, Debtor, Unsecured debt, Interest, Consent, Legal burden of proof, Companies' Creditors Arrangement Act 1933 (Canada), Ontario Superior Court of Justice
    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, Norton Rose Fulbright, Bankruptcy, Debtor, Waiver, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Evan Cobb
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada 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, Debt, Liability (financial accounting), Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Evan Cobb
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP
    SCC confirms no crown priority for unremitted GST/QST in a bankruptcy
    2009-12-10

    On October 30, 2009, the Supreme Court of Canada released its long-anticipated decision in Quebec (Revenue) v. Caisse populaire Desjardins de Montmagny. At issue in this case (and two companion cases) was the legal characterization of Crown rights with respect to collected but unremitted GST and Quebec sales tax (QST) in the hands of a trustee in bankruptcy. The Supreme Court confirmed that the Crown is an ordinary unsecured creditor with respect to such amounts, subject to the rights of prior ranking security holders.

    Summary of Facts

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, Norton Rose Fulbright, Bankruptcy, Accounts receivable, Tax deduction, Secured creditor, Unsecured creditor, Bankruptcy and Insolvency Act 1985 (Canada), SCOTUS, Supreme Court of Canada
    Authors:
    Virginie Gauthier
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada LLP

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