​The Québec Superior Court recently rendered a judgment (Francis v. Adobe 2018 QCCS 2547) confirming that a bankrupt's debt may be declared non-releasable by a discharge order pursuant to section 178 of the Bankruptcy and Insolvency Act (the "Act"), even when said discharge order has not yet been rendered or when the bankrupt's discharge has been suspended or granted conditionally pursuant to section 173 of the Act.

On March 16, 2018, a Quebec Court approved a litigation funding agreement for an insolvent company operating under court-protection in a Companies’ Creditors Arrangement Act (CCAA) proceeding. The insolvent company wanted to pursue a significant claim against its primary secured creditor and the litigation funding agreement stipulated that the third party litigation funder will pay all legal fees and disbursements in relation to the proposed claim in exchange for a portion of any proceeds of the litigation.

Over the last year, several court decisions have touched on the legislative conflict between taxation authorities and secured creditors in insolvency situations.

In the final part of this series, we look at how you can protect your position and be prepared in the event of an impending insolvency.

Thinking ahead

It is always prudent to assess insolvency risk before finalising a contract. The trading history and financial position of a company should be carefully reviewed and a financial risk assessment made at both the outset and during the lifetime of a project. Obtain an up to date set of accounts and a credit report before entering into your contract to enable you to assess the counterparty's financial viability.

In our update this month we take a look at some of the recent cases that will be of interest to those involved in insolvency litigation. These include;

Les options pour le changement

À mesure que le marché évolue, sous la pression des forces concurrentielles et des demandes des clients, les entreprises doivent veiller de façon proactive à suivre la cadence. Elles peuvent rencontrer des difficultés opérationnelles qui sont des signes avant-coureurs de problèmes de viabilité à long terme. Comme la direction se concentre sur ses activités quotidiennes et les enjeux habituels de l’entreprise, il peut être difficile d’identifier les indicateurs de possibles problèmes opérationnels à venir et d’y répondre.

Create options for change

As companies face changes in their markets from competitive forces and customer demands, they also need to be proactive in ensuring their operations are up to the challenge. Companies will often experience operational issues that can be leading indicators for real viability concerns in the longer term. With management focused on day-to-day operations and business as usual matters, it can often be a challenge to identify and address indicators of potential operational stress ahead.

Insolvency is high on the agenda in the construction industry.

In the first of this mini series, we take a look at the meaning of insolvency and summarise the main insolvency processes that can typically affect parties involved in construction projects. The series will also address contract issues and minimising risk, so keep an eye out for our future articles on this topic.

Recent legislative amendments in Ontario are intended to protect construction subcontractors from the claims of other creditors in the event of insolvency. They impose a new requirement to maintain written records for trust funds that will be in effect as of July 1, 2018.

Weighing in at the intersection of bankruptcy law and the doctrine of subrogation, the Ontario Court of Appeal has ruled that insurers are not entitled to commence subrogated claims in the name of bankrupt insureds.