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    New priorities? The Ontario Superior Court applies Indalex and reaches a different result
    2012-02-13

    On February 2 and 9, 2012, the Ontario Superior Court released two decisions in the ongoing proceedings of Timminco Limited and Bécancour Silicon Inc. (together, the Timminco Entities) under the Companies’ Creditors Arrangement Act (CCAA) that further develop the law regarding pension claim priorities in insolvency proceedings.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Debtor, Ontario Superior Court of Justice
    Authors:
    Mark Firman , James D. Gage
    Location:
    Canada
    Firm:
    McCarthy Tétrault LLP
    Dealing with Indalex
    2012-02-23

    In January and February of 2012, Justice Morawetz of the Ontario Superior Court of Justice (Commercial List) released two decisions1 in which he authorized a debtor-in-possession (“DIP”) financing charge, an administration charge, and a directors and officers (“D&O”) charge ranking ahead of, among other claims, possible pension deemed trusts over the objection of the debtor companies’ unions and on notice to the members of the companies’ pension administration committees.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Debtor, Supreme Court of Canada
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Reasonable notice: secured creditor’s ability to demand repayment
    2012-03-19

    The common law has long recognized a secured creditor’s duty to provide reasonable notice to borrowers before enforcing its security and appointing a receiver. The practical importance of this has become less significant since the codification of the principle of reasonable notice in section 244 of theBankruptcy and Insolvency Act (“BIA”). However, in the recent case of Bank of Montreal v.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Debtor, Secured creditor, Bankruptcy and Insolvency Act 1985 (Canada)
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Supreme Court decision in Toronto-Dominion Bank v. Her Majesty the Queen: garnishment notices regarding unpaid GST remain valid after bankruptcy
    2012-01-30

    In a succinct decision rendered on January 12, the same day as the hearing, the Supreme Court of Canada finally settled the question of whether requirements to pay, issued pursuant to section 317 of the Excise Tax Act ("ETA") prior to the bankruptcy of a tax debtor, but not paid before such time, remain valid against the garnishee.1 Supreme Court Justice LeBel, speaking on behalf of the Court, simply stated that the Court agreed with the reasons of Noël J.A. of the Federal Court of Appeal.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, Tax, Stikeman Elliott LLP, Bankruptcy, Debtor, Supreme Court of Canada, Federal Court of Appeal (Canada)
    Authors:
    Jean-Guillaume Shooner
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP
    U.S. bankruptcy court bars tolling of fraudulent conveyance look-back period
    2012-02-02

    A U.S. bankruptcy judge in Delaware has held that the two-year "look-back" period in which a transfer occurring within two years of the bankruptcy petition filing date may be avoided, under Section 548 of the U.S. Bankruptcy Code, cannot be equitably tolled. After some inconsistent orders about whether the courts may broaden the look-back period, this decision should give greater certainty to lenders when evaluating their exposure upon the commencement of a bankruptcy case by a borrower.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Torys LLP, Debtor, Statute of limitations, United States bankruptcy court
    Authors:
    Alison D. Bauer , Darien G. Leung
    Location:
    Canada
    Firm:
    Torys LLP
    Uncertainty for debtor-in-possession (DIP) lenders and employers acting as pension plan administrators
    2012-02-08

    In Re Indalex Limited, the OCA surprised insolvency, pension and financial services professionals by ruling that pension plan deficiency claims can have priority over the claims of DIP lenders in the context of Companies’ Creditors Arrangement Act proceedings.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Blake, Cassels & Graydon LLP, Debtor, Fiduciary, Beneficiary
    Location:
    Canada
    Firm:
    Blake, Cassels & Graydon LLP
    Leave to appeal granted in Indalex
    2011-12-02

    The Supreme Court of Canada granted leave to appeal yesterday in Indalex Limited (Re). This is an appeal from the Ontario Court of Appeal (2011 ONCA 265). Please see our Financial Services and Banking E-news Bulletin dated April 25, 2011, for a detailed summary of the decision of the Ontario Court of Appeal.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Heenan Blaikie LLP, Debtor, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Michael Davies , Justin Fogarty , Ilia Danef , Mark Newton , Andréa Rinaldi
    Location:
    Canada
    Firm:
    Heenan Blaikie LLP
    True lease v. security lease - is the distinction still relevant? (Part 2)
    2011-12-15

    Introduction

    In “True Lease v. Security Lease – Is the Distinction Still Relevant?” which appeared in the June 2008 issue of Collateral Matters, Jill Fraser discussed a 2007 amendment to the Personal Property Security Act (Ontario) (the “PPSA”) and whether or not the distinction between a true lease and a security lease was still relevant in light of that amendment.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Aird & Berlis LLP | Aird & McBurney LP, Debtor
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Strike 1 for Madoff trustee in claim against Mets owners
    2011-11-09

    Saul Katz and Fred Wilpon, owners of the New York Mets baseball team, invested in Bernard Madoff’s Ponzi scheme. Irving Picard, the trustee appointed under the Securities Investor Protection Act to liquidate the business of Madoff and Madoff Securities, sought to recover over $1 billion from Katz and Wilpon on the grounds that they had made money from Madoff through fraud, constructive fraud and preferential transfers in violation of federal bankruptcy law and New York debtor-creditor law.

    Filed under:
    Canada, Capital Markets, Insolvency & Restructuring, Litigation, White Collar Crime, Borden Ladner Gervais LLP, Bankruptcy, Debtor, Security (finance), Fraud, Liquidation, Good faith, Due diligence, Trustee, US District Court for the Southern District of New York
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Corporate group COMI: “nerve centre” location a key factor
    2011-11-17

    What happens when Canadian entities are part of a corporate group with international operations that seeks to restructure? A recent decision of the Ontario Superior Court of Justice in Re Massachusetts Elephant & Castle Group, Inc. provides guidance on how Canadian courts will consider recognition of foreign restructuring proceedings.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Debtor, Consideration, UNCITRAL, Companies' Creditors Arrangement Act 1933 (Canada), Ontario Superior Court of Justice
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP

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