Ontario Courts are routinely faced with requests for Approval and Vesting Orders in connection with asset acquisitions made in the context of receivership proceedings or proceedings under the Companies’ Creditors Arrangement Act ("CCAA"). Purchasers’ counsel who routinely seek these Orders for their clients seek to insulate their clients from claims made by third parties arising from the purchasers’ acquisition of the assets through the insolvency proceedings.

In the recent landmark decision of The Guarantee Company of North America v.

One of the most delicate balancing acts that the Courts are asked to perform in Canada is balancing all of the disparate and competing interests in an insolvency process. The Ontario Court of Appeal was asked to review one iteration of this balancing act in Reciprocal Opportunities Incorporated v.

In 2002 the Supreme Court of Canada, in Bank of Montreal v Dynex Petroleum Ltd, 2002 SCC 7 (Dynex) affirmed that gross overriding royalty interests (GOR) could constitute interest in land provided the parties so intended and that intention was sufficiently evidenced in an agreement.

The recent decision of the Ontario Court of Appeal in msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550 (“msi Spergel”) confirms that the Court will not suspend, extend or otherwise vary the general two-year limitation period under the Limitations Act, 2002 (the “Limitations Act”) unless there is express statutory authority to do so.

During the spring of 2012, the Canadian Appeals Monitor posted a five-part series on the Supreme Court’s judgments in Van Breda, Black, and

Following a recent ruling of the Ontario Court of Appeal, parties may need to proceed cautiously in enforcing contractual rights and remedies in circumstances where there is a risk of the counterparty subsequently becoming insolvent.

The common law has long recognized that a contractual provision which is explicitly and directly triggered by a party’s insolvency (and which thereby causes subsequent prejudice to the rights of the insolvent party’s creditors) may be unenforceable as a matter of public policy.

Introduction

The Supreme Court has issued its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers.

The Supreme Court has announced it will hear the appeal in the high profile Indalex Ltd., Re. The appeal is of great interest to the commercial litigation, insolvency and pension bar. Its outcome will be closely watched and may have dramatic impact on Canadian corporate reorganizations.

Background

Today, the Supreme Court of Canada agreed to hear an appeal of the unanimous decision rendered last April by the Ontario Court of Appeal (OCA) in Re Indalex Limited (Indalex). According to many commentators, the Indalex case turns accepted law on the priority of debtor in possession (DIP) and working capital security on its head and introduces new concerns for employers about how to properly discharge their sometimes conflicting duties under corporate law and under pension law.