TrustIn Canada (Deputy Attorney General) v. Temple City Housing Inc., the Alberta Court of Appeal had to consider an application for leave to appeal a provision in a Companies Creditors Arrangement Act (Canada) (“CCAA”) order granting a DIP lender a charge in priority over the claims of CRA. The claims of CRA consisted of deemed trust claims arising under sections 224(1.2), 227(4) and 227(4.1) of the Income Tax Act (Canada).

In the recent case of Re I. Waxman & Sons Limited (“Waxman”), the Ontario Superior Court of Justice reviewed the treatment in Canada of the doctrine of equitable subordination. Developed in American jurisprudence, the doctrine permits the claims of one creditor to be subordinated to the claims of another or other creditors of equal rank if circumstances warrant, on the basis of the equitable jurisdiction of the court.

All businesses know that one key to profitability is risk management. Particularly in such industries as oil and natural gas, eligible financial contracts have emerged as an invaluable tool to hedge the risk associated with volatile foreign currency exchange, interest rates and commodity prices. Indeed, a large business has developed proffering over-the-counter derivatives (or ‘swaps’) and standardized exchange-traded derivatives (or ‘futures’) to do just that.

On July 31, 2024, the Supreme Court of Canada released its decision in Poonian v. British Columbia (Securities Commission), on whether financial sanctions imposed by securities regulators are dischargeable through bankruptcy. The decision resolves a conflict between Alberta and B.C. jurisprudence and will have a significant impact on the treatment of all administrative orders in bankruptcy proceedings.

The facts

On December 6, 2023, the Supreme Court of Canada heard the appeal of Poonian v British Columbia Securities Commission, 2022 B

1. Introduction

The Alberta Court of Appeal recently ruled on a case1 dealing with the priority of claims to the bank accounts of a petroleum operator which had gone into receivership, where the operatorship was governed by the 1990 CAPL Operating Procedure. The operator had failed to pay to the non-operators revenues of approximately $300,000, having only $58,000 left in the commingled account. The Operating Procedure imposes a trust on the production revenues but also expressly allows intermingling of these funds with the operator's general funds.

On January 31, 2019, the Supreme Court of Canada released its much-anticipated decision in Orphan Well Association et al. v. Grant Thornton Limited et al., 2019 SCC 5, commonly referred to as “Redwater”. Specifically, Redwater clarifies the priority as between environmental obligations and those afforded to secured creditors in insolvency proceedings.

On January 31, 2019, the Supreme Court of Canada released its much-anticipated decision in Orphan Well Association et al. v. Grant Thornton Limited et al., 2019 SCC 5, commonly referred to as “Redwater”. Specifically, Redwater clarifies the priority as between environmental obligations and those afforded to secured creditors in insolvency proceedings.

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).