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    Pension priorities and fiduciary duties in pension plan administration
    2013-02-04

    On February 1, 2013, the Supreme Court of Canada rendered its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers et al. (Indalex). This bulletin focuses on pension plan administration issues arising from the Indalex case.

    Facts

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Blake, Cassels & Graydon LLP, Surety, Fiduciary, Constructive trust, United Steelworkers, Court of Appeal of England & Wales, Supreme Court of Canada
    Location:
    Canada
    Firm:
    Blake, Cassels & Graydon LLP
    Re Northern Sawmills Inc. – court considers post-Indalex pension claims in receivership
    2012-12-19

    This is another post-Indalex pension deficit priority case. Due to factual differences from Indalex, however, the pension claims were largely rejected.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Ian J.F. McSweeney
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    Update on DIP financing and priority charges
    2012-12-06

    This bulletin is a cross-country update presented by the national Restructuring & Insolvency Group. It discusses the key cases across the country involving debtor-inpossession (DIP) financing, court-ordered charges and other priority claims and disputes in recent Canadian insolvency proceedings.

    Introduction

    Filed under:
    Canada, Ontario, British Columbia, Arbitration & ADR, Banking, Employee Benefits & Pensions, Environment & Climate Change, Insolvency & Restructuring, Litigation, Blake, Cassels & Graydon LLP, Debtor, Beneficiary, Court of Appeal of England & Wales
    Location:
    Canada
    Firm:
    Blake, Cassels & Graydon LLP
    Pensions v. DIP charge: the continuing Timminco saga unions’ motion for leave to appeal denied
    2012-08-27

    The law in Canada concerning priorities between the statutory deemed trusts relating to pension plan contributions and certain pension fund shortfalls on the one hand, and court ordered charges in favour of DIP lenders on the other hand has been in a state of flux ever since the decision of the Ontario Court of Appeal (the “OCA”) in Re Indalex.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Trade union
    Authors:
    Steven Golick , Lindsay Offner
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt 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
    Quebec is different - White Birch court finds that Indalex does not apply in Quebec
    2012-05-31

    A year after the uncertainty created in the Canadian corporate debt financing world by the Ontario Court of Appeal's pensions-friendly decision in the Indalex CCAA restructuring matter2, the Quebec Superior Court, in April 2012, determined in a lengthy and well-reasoned decision that the key restructuring and pensions law principles underpinning Indalex do not apply in Quebec when considering the treatment of defined benefit amortization payment and deficit claims in a restructuring.

    Filed under:
    Canada, Quebec, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McMillan LLP, Bankruptcy, Fiduciary, Defined benefit pension plan, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    McMillan LLP
    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
    Update on the Re Indalex Limited decision
    2012-03-28

    In a recent edition of Fully Secured (September 29, 2011 – Volume 2, No. 3), the decision of the Ontario Court of Appeal in Re Indalex Limited was discussed, in which the Ontario Court of Appeal held that a statutory deemed trust claim arising out of a pension plan wind-up deficiency ranked in priority to debtor in possession (“DIP”) financing.

    There have been several recent developments with respect to this decision since the date of that publication.

    Filed under:
    Canada, Ontario, Banking, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Gowling WLG, Debtor in possession, Court of Appeal for Ontario
    Authors:
    Jeffrey Oliver
    Location:
    Canada
    Firm:
    Gowling WLG
    Checkmate: Third Circuit holds automatic stay bars participation in U.K. pension proceedings
    2012-01-19

    A recent decision by the Third Circuit in the Nortel Group bankruptcy reinforces the worldwide reach of the automatic stay and the narrow scope of the police power exception under section 362(b)(4) of the Bankruptcy Code.  In Nortel Networks, Inc. v. Trustee of Nortel Networks U.K. Pension Plan, No. 11-1895 (3d Cir. Dec. 29, 2011), the Third Circuit held that the automatic stay barred U.K. pension claimants from participating in U.K. proceedings meant to determine the debtors’ liability for their affiliate’s pension funding shortfalls.

    Filed under:
    Canada, United Kingdom, USA, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Bracewell LLP, Bankruptcy, Market liquidity, Trustee, United States bankruptcy court, Third Circuit
    Location:
    Canada, United Kingdom, USA
    Firm:
    Bracewell LLP

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