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    Re Hartford Computer Hardware Inc. - a restrictive approach to public policy exceptions in cross-border insolvencies
    2012-07-06

    In the recent decision of the Ontario Superior Court of Justice (the “Ontario Court”) inRe Hartford Computer Hardware Inc.1 (“Re Hartford”), the Ontario Court held that the public policy exemption in foreign recognition proceedings under the Companies’ Creditors Arrangement Act (the “CCAA”) should be interpreted narrowly.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Dentons, Debtor, Collateral (finance)
    Location:
    Canada
    Firm:
    Dentons
    Mergers & acquisitions in a more uncertain world: using the Companies’ Creditors Arrangement Act
    2012-07-25

    You are probably aware of the useful restructuring and creditor protection process available to insolvent entities in the United States under Chapter 11 of the United States Bankruptcy Code. In Canada, more than one insolvency regime is available in respect of debtor companies in financial difficulty and those interested in acquiring such companies or their assets. However, because of its flexibility, the most commonly used Canadian regime for larger debtor companies or complicated restructurings is the Companies’ Creditors Arrangement Act (Canada) (the "CCAA").

    Filed under:
    Canada, Corporate Finance/M&A, Insolvency & Restructuring, McCarthy Tétrault LLP, Bankruptcy, Debtor, Title 11 of the US Code
    Authors:
    Sean F. Collins , James D. Gage , Warren B. Milman , Roger R. Taplin
    Location:
    Canada
    Firm:
    McCarthy Tétrault LLP
    A DIP departure
    2012-07-30

    In Ontario, a debtor-in-possession (“DIP”) lender is usually granted a charge by the Ontario Superior Court of Justice (Commercial List) (the “Court”) over the assets of the debtor which is under the protection of the Companies’ Creditors Arrangement Act (the “CCAA”) to secure the repayment of the DIP loan.  The priority of the charge is set out in the order granting the charge.  Most such orders provide that prior to exercising its rights and remedies against the debtor after an event of default, the DIP lender must appl

    Filed under:
    Canada, USA, Ontario, Banking, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Debtor
    Authors:
    Andrea Lockhart , Steven Golick
    Location:
    Canada, USA
    Firm:
    Osler Hoskin & Harcourt LLP
    Quick flip a flop: application for court appointed receiver and order for quick flip asset sale denied
    2012-06-18

    The Ontario Superior Court of Justice (Commercial List) recently declined to grant a receivership order under section 243 of the Bankruptcy and Insolvency Act (Canada) (“BIA”) and s. 101 of the Courts of Justice Act (Ontario) (“CJA”) or to approve a proposed  “quick flip” transaction among related companies on the basis of an insufficient evidentiary record. Insolvency practitioners should take note of this case, 9-Ball Interests Inc. v.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Debtor, Secured creditor, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Andrea Lockhart , Steven Golick
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    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), British Columbia Supreme Court
    Authors:
    Kyle D. Kashuba
    Location:
    Canada
    Firm:
    Norton Rose Fulbright
    Do you really have an enforceable license?
    2012-06-12

    During a bankruptcy or a restructuring, the goal of bankruptcy law is at odds with the goal of intellectual property law. Recent developments in bankruptcy law have sought to provide more certainty to licensees. However, there is still a lot of uncertainty.

    Filed under:
    Canada, Insolvency & Restructuring, Intellectual Property, Bereskin & Parr LLP, Bankruptcy, Debtor, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Philip C. Mendes da Costa
    Location:
    Canada
    Firm:
    Bereskin & Parr LLP
    Motor vehicles in a consumer insolvency. British Columbia Court of Appeal determines trustees and consumers claims - TRAP for subprime auto lenders revisited
    2012-04-18

    It is always an interesting question as to what rights a lender has with respect to a motor vehicle owned by a consumer who becomes insolvent, and whether a secured creditor is able to seize a motor vehicle in order to satisfy an obligation due under a loan. The answer may be surprising. The recent BC Court of Appeal case, Atwal (Re) (2011 BCSC 687), highlights the rights of a debtor vis-à-vis a trustee in bankruptcy with respect to the ownership of a motor vehicle.

    Filed under:
    Canada, British Columbia, Banking, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Debtor, Secured creditor, British Columbia Court of Appeal
    Authors:
    Suhuyini Abudulai , Jonathan Fleisher
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Setting the record straight on pension plan deficits and CCAA
    2012-05-02

    In a decision issued on April 20th, 2012, Justice Robert Mongeon of the Superior Court of Quebec gave a decisive answer to one of the most troubling questions facing debtors and DIP lenders in reorganizations under the Companies' Creditors Arrangement Act(CCAA).

    Filed under:
    Canada, Quebec, Insolvency & Restructuring, Litigation, Stikeman Elliott LLP, Debtor, Scotiabank, Supreme Court of Canada, Court of Appeal for Ontario, Quebec Superior Court
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP
    Québec court: DIP lender has priority over pension plan deficit
    2012-05-21

    In April 2011, the Ontario Court of Appeal rendered a unanimous judgment in Re Indalex Limited which ordered that the amount the debtor was required to contribute towards its pension plan wind up deficiency be paid in higher priority to repayments to its DIP lender. This judgment was a surprise to the legal community. Leave to appeal has since been granted by the Supreme Court of Canada. In November 2011, groups of White Birch employees and retirees (referred to below as employees) filed motions seeking the application of the legal findings of Indalex to White Birch.

    Filed under:
    Canada, Ontario, Banking, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Debtor, Liquidation, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Martin Desrosiers , Sandra Abitan , Julien Morissette
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    BIA and CCAA "lookback periods" for preferential transactions
    2012-02-10

    Lenders should be cognizant that the granting of security by a debtor may be subject to challenge as a fraudulent preference in the event the debtor subsequently files for liquidation or proposal proceedings under the Bankruptcy and Insolvency Act (Canada) (the “BIA”) or restructuring proceedings under the Companies’ Creditors Arrangement Act (Canada) (the “CCAA”). Such risk arises if the debtor is insolvent the time the security was granted.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Osler Hoskin & Harcourt LLP, Debtor, Legal burden of proof, Prima facie, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Richard Borins , Andrea Lockhart
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP

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