Today the Supreme Court of Canada granted the Orphan Well Association and Alberta Energy Regulator leave to appeal the Alberta Court of Appeal’s closely watched decision in Orphan Well Association v. Grant Thornton Limited (2017 ABCA 124), which is also known as Redwater.

Below are this week’s summaries of the civil decisions of the Court of Appeal.

Congratulations to our very own Bill Anderson for succeeding on our client’s appeal in Holmes v. Hatch Ltd., 2017 ONCA 880.

In this Employment law decision, the Court of Appeal allowed the appeal from the motion judge’s decision granting summary judgment against our client on the basis that the motion judge was not at liberty to find liability on a legal theory that was not pleaded by the plaintiff and which our client did not have an opportunity to properly address in the evidence.

With our ageing population and shift in demographics, there is a growing awareness of elder abuse and in particular elder financial abuse. In many cases such incidents remain unreported and unresolved; however, where the Court does become involved, it can not only provide a remedy but also lay the groundwork for further policy development.

Background

Bankruptcy & restructuring

The economies of the United States (U.S.) and Canada are closely intertwined. As operations expand across the border, so too do the complexities associated with carrying on business — particularly the insolvency of a company spanning both jurisdictions. As such, understanding how to navigate the complexities of Canadian insolvency regimes is essential to successfully doing business in the country.

1. Legislation and court system

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.

On October 17th, MP Marilène Gill of the Bloc Québécois introduced Bill C-372, a private member’s bill which would amend the Bankruptcy and Insolvency Act (BIA) and the Companies Creditors’ Arrangement Act (CCAA). The Bill would provide for priority status for claims in respect of underfunded pension plans as well as for claims arising as a result of an employer ceasing its participation in a group insurance plan.

Private member’s bills are bills that are not introduced by a member of the Cabinet. Such bills frequently do not become law.

In a September 19, 2017 decision from the bench in the matter of Bank of Montreal v. Kappeler Masonry Corporation, et. al.1 (“Kappeler Masonry”), Madam Justice Conway of the Ontario Superior Court of Justice (Commercial List) (the “Court”) confirmed that commingling of construction project receipts in a receiver’s estate account is fatal to a Construction Lien Act (Ontario) (the “CLA”) trust claim in the face of a debtor’s bankruptcy.

Federal Bill C-63, which received first reading on October 27, 2017, will amend the eligible financial contracts (EFC) stay safe-harbour where a Canadian financial institution is subject to a resolution procedure under the Canada Deposit Insurance Corporation Act(CDIC Act). The amendments will clarify that the limits that apply to relying on the safe-harbour based on insolvency or deteriorated financial condition are limited to two business days unless effective resolution actions have been taken.

In 2016-0628741I7, CRA headquarters was asked by a CRA tax services office whether s. 143.4 would apply in respect of a debt-restructuring plan (the Plan) at a point in time before the unpaid interest owing by the taxpayer was actually settled (forgiven) under the Plan steps.  CRA headquarters answered yes.  The takeaway: this view can potentially result in income in the course of debt restructuring before the debt is actually settled.  Here are the main points:

The Alberta Court of Queen's Bench recently reviewed the law regarding priority of operator’s liens and emphasized the heavy evidentiary burden to be satisfied by a creditor asserting a possessory lien in Cansearch Resources Ltd v Regent Resources Ltd, 2017 ABQB 535.

Cansearch’s Operator’s Lien and the Bank’s Security