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    Court creates potential new hurdle for insolvent companies that sponsor employee pension plans and seek new financing
    2011-06-27

    Insolvent companies with under-funded employee pension plans that want to borrow money to keep operating and ultimately return to profitability may find it tougher to find new financing as a result of a recent Ontario Court of Appeal decision.

    The Court ruled on April 7 that Indalex Limited (and certain affiliated companies), the second largest aluminum extrusion company in North America, which administered two pension plans, one for employees and the other for executives, was obliged to pay its pension

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Blaney McMurtry LLP, Bankruptcy, Debtor, Debt, Liquidation, Unemployment benefits, Canada Pension Plan Act 1985, Bankruptcy and Insolvency Act 1985 (Canada), Personal Property Security Act 1990 (Canada), Court of Appeal of England & Wales, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Blaney McMurtry LLP
    Indalex Limited (Re)
    2011-04-19

    2001 ONCA 265 (Released 7 April, 2011)

    Companies’ Creditors Arrangement Act – Pensions – Priorities – Fiduciary Obligations – Funding Pension Plans

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, WeirFoulds LLP, Credit (finance), Surety, Fiduciary, Beneficiary, Liquidation, Common law, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Court of Appeal of England & Wales, Supreme Court of Canada
    Location:
    Canada
    Firm:
    WeirFoulds LLP
    Indalex decision: implications from a pensions & benefits perspective
    2011-04-19

    The Ontario Court of Appeal decision in Indalex Limited (Re) has created considerable uncertainty over the priority status afforded to pension plan wind-up deficits, particularly in insolvency proceedings involving the plan sponsor.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Debtor, Debt, Liquidation, Secured creditor, Defined benefit pension plan, Companies' Creditors Arrangement Act 1933 (Canada), Court of Appeal of England & Wales, Court of Appeal for Ontario
    Authors:
    Anthony Devir , Ian J.F. McSweeney , Lesha Van Der Bij , Paul Litner , Shaun Miller
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    Pensions and corporate insolvency: Ontario Court of Appeal releases surprising decision
    2011-04-20

    The Ontario Court of Appeal released its decision in Indalex Limited (Re), 2011 ONCA 265 on April 7, 2011. The decision comes as a surprise to many pension and insolvency professionals, lenders and pension plan sponsors. The court, essentially, directed that monies held in reserve by the monitor appointed under the federal Companies Creditors Arrangement Act should be used to pay off pension fund deficits in preference to secured creditors.

    Background

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Heenan Blaikie LLP, Credit (finance), Surety, Debtor, Fiduciary, Beneficiary, Liquidation, Common law, United Steelworkers, Companies' Creditors Arrangement Act 1933 (Canada), Personal Property Security Act 1990 (Canada), Court of Appeal for Ontario
    Authors:
    Mark Newton
    Location:
    Canada
    Firm:
    Heenan Blaikie LLP
    Follow-up commentary on Indalex
    2011-04-21

    In a client update released earlier this month, we discussed the recent decision of the Ontario Court of Appeal in the CCAA proceedings of Indalex Limited. In that case, the Court decided that Indalex’s pension plan wind-up deficiency claims had priority over Indalex’s CCAA secured lender in the context of that case. Of concern is the "chill" that decision may have on secured lending in Ontario to borrowers that sponsor defined benefit pension plans.

    Filed under:
    Canada, Banking, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Collateral (finance), Accounts receivable, Mortgage loan, Defined benefit pension plan, Royal Bank of Canada, Companies' Creditors Arrangement Act 1933 (Canada), Bank Act 1991 (Canada), Personal Property Security Act 1990 (Canada), Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Barbara J. Boake , James D. Gage , Kevin P. McElcheran
    Location:
    Canada
    Firm:
    McCarthy Tétrault LLP
    Ontario Court of Appeal addresses PBA deemed trust and other pension issues in CCAA proceedings
    2011-04-21

    On April 7, 2011, the Ontario Court of Appeal released its judgment in theRe Indalex Limited case (Indalex).1 The decision addresses the interplay between the deemed trust provision in the Ontario Pension and Benefits Act (PBA)2 and the federal Companies’ Creditors Arrangement Act (CCAA),3 as well as the fiduciary duties of pension plan administrators in CCAA proceedings. Indalex is important for pension plan sponsors and administrators for a number of reasons:

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Fiduciary, Beneficiary, Liquidation, United Steelworkers, Title 11 of the US Code, Companies' Creditors Arrangement Act 1933 (Canada), Court of Appeal of England & Wales, Court of Appeal for Ontario
    Authors:
    Andrew Harrison
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    DIP lending charge: when super-priority is not so super
    2011-04-25

    On April 7, 2011, the Ontario Court of Appeal (the “OCA”) released its decision in Indalex Limited, ordering that the reserved sale proceeds of a going-concern sale involving the Canadian Indalex entities (“Indalex Canada”), held by the court-appointed monitor, FTI Consulting Inc.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Heenan Blaikie LLP, Fiduciary, Beneficiary, Common law, Constructive trust, JPMorgan Chase, US Code, Companies' Creditors Arrangement Act 1933 (Canada), Supreme Court of Canada, Court of Appeal for Ontario, Ontario Superior Court of Justice
    Authors:
    Michael Davies , Kenneth David Kraft , John Salmas
    Location:
    Canada
    Firm:
    Heenan Blaikie LLP
    Ontario Court of Appeal grants retirees priority over secured creditors
    2011-04-12

    On April 7, 2011, the Ontario Court of Appeal released its long-awaited decision in Re Indalex Limited 1. In a unanimous decision, the Court of Appeal overturned the decision of the Ontario Superior Court of Justice dated February 18, 2010, and allowed the appeals of the United Steelworkers and a certain group of retired executives. The Court of Appeal ordered FTI Consulting Canada ULC (the Monitor) to pay from the reserve fund (the Reserve Fund) held by the Monitor from the sale of Indalex Limited, Indalex Holdings (B.C.) Ltd., 6326765 Canada Inc. and Novar Inc.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Osler Hoskin & Harcourt LLP, Conflict of interest, Bankruptcy, Debtor, Fiduciary, Beneficiary, Retirement, Secured creditor, Constructive trust, United Steelworkers, Companies' Creditors Arrangement Act 1933 (Canada), Court of Appeal of England & Wales, Court of Appeal for Ontario, Ontario Superior Court of Justice
    Authors:
    Rupert Chartrand , Marc Wasserman , Martino F. Calvaruso
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    The Ontario Court of Appeal’s decision in re Indalex Limited – enhanced pension deemed trusts, enhanced priority and breach of fiduciary duty in liquidating CCAAs
    2011-04-13

    On April 7, 2011, in the context of a liquidating CCAA that achieved a going concern sale of the debtor’s business, the Ontario Court of Appeal held that:

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Debtor, Collateral (finance), Fiduciary, Beneficiary, Liquidation, Balance sheet, Defined benefit pension plan, Constructive trust, United Steelworkers, Companies' Creditors Arrangement Act 1933 (Canada), Supreme Court of Canada, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Federal pension reform comes into force
    2011-04-15

    Certain provisions of Bill C-9, last year's Budget Bill, which amended the federal Pension Benefits Standards Act (PBSA), have been proclaimed in force.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Osler Hoskin & Harcourt LLP, Letter of credit, Credit (finance), Budget, Vesting
    Authors:
    Lesha Van Der Bij
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP

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