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    Ontario Court of Appeal decision may create uncertainty for insolvent companies with pension deficiencies
    2011-04-12

    A ruling on April 7, 2011 by the Ontario Court of Appeal has resulted in deemed trust and unsecured breach of fiduciary duty claims in favour of pension beneficiaries being given priority ahead of court-ordered “super-priority” charges.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Torys LLP, Unsecured debt, Breach of contract, Fiduciary, Beneficiary, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Torys 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
    Re Indalex Limited: new pension deficiency wrinkles for financiers
    2011-04-18

    On April 7, 2011, the Ontario Court of Appeal rendered a decision in the restructuring proceedings involving Indalex Limited (Indalex) under the Companies’ Creditors Arrangement Act (CCAA) that is inconsistent with prior non-binding comments by the same court relating to the priority of certain pension claims. The decision has material implications for institutional financiers that lend against the inventory, accounts receivable or cash collateral of businesses with Ontario regulated defined benefit pension plans and for the access of those businesses to secured credit.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McMillan LLP, Bankruptcy, Collateral (finance), Fiduciary, Accounts receivable, Beneficiary, Liquidation, Defined benefit pension plan, Constructive trust, Secured loan, Companies' Creditors Arrangement Act 1933 (Canada), Court of Appeal of England & Wales, Court of Appeal for Ontario
    Authors:
    Waël Rostom , Adam C. Maerov
    Location:
    Canada
    Firm:
    McMillan LLP
    Bill C-501: proposed changes to priority of pension fund payments
    2010-12-07

    Last month, I appeared before the federal government’s Standing Committee on Industry, Science and Technology to convey our concerns regarding Bill C-501,An Act to amend the Bankruptcy and Insolvency Act and other Acts (pension protection), which if passed will alter the status of

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Osler Hoskin & Harcourt LLP, Bond market, Bankruptcy, Credit (finance), Liability (financial accounting), Default (finance), Defined benefit pension plan, Competitiveness, US Federal Government, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Douglas Rienzo
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP
    Bankruptcy reform in Canada - yet further protection for pension plan and employee claims?
    2010-10-18

    Amendments to the Bankruptcy and Insolvency Act (BIA) and related new legislation came into force in the summer of 2008 which were aimed at significantly enhancing and protecting, among other things, employee related claims against bankrupt or insolvent companies. The amendments included a super priority charge over all assets for some, but not all, pension claims as well as a limited priority charge over certain assets for some wages owing to employees, subject to a cap for each employee.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Lawson Lundell LLP, Wage, Bankruptcy, Health insurance, Disability, Severance package, Bankruptcy and Insolvency Act 1985 (Canada), British Columbia Court of Appeal
    Authors:
    Michael Morgan
    Location:
    Canada
    Firm:
    Lawson Lundell LLP
    Alberta exempts registered savings plans from seizure
    2010-05-14

    One more province has joined the ranks of extending creditor protection to registered savings plans. Alberta’s Civil Enforcement Amendment Act came into force on October 1, 2009 (the “Act”). It applies to registered retirement savings plans (RRSPs), registered retirement income funds (RRIFs), deferred profit sharing plans (DPSPs) and registered disability savings plans (RDSPs).

    Fair Treatment

    Filed under:
    Canada, Alberta, Employee Benefits & Pensions, Insolvency & Restructuring, Miller Thomson LLP, Tax exemption, Bankruptcy, Debtor, Beneficiary, Retirement, Life insurance, Investment funds, Disability, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Wendi P. Crowe
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    The perils of partial wind-ups: Ontario Court of Appeal releases decision in Hydro One
    2010-01-15

    The Ontario Court of Appeal released its decision in Hydro One Inc. v. Ontario (Financial Services Commission) on January 11, 2010. This was an appeal from the Ontario Divisional Court – see our Labour & Employment in the News dated April 18, 2008, that reported on the Divisional Court’s decision. The court dismissed the appeal, in favour of members of the Hydro One Pension Plan (the “Plan”).

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Heenan Blaikie LLP, Trade union, Retirement, Court of Appeal of England & Wales, Court of Appeal for Ontario
    Authors:
    Mark Newton
    Location:
    Canada
    Firm:
    Heenan Blaikie LLP
    Bankrupt companies and underfunded pension plans
    2009-10-22

    With a number of Canadian companies seeking bankruptcy protection over the past few months, it has become apparent that the defined benefit pension plans sponsored by many of these companies are underfunded. As retirees and former employees protest their shrinking pensions, many are left asking how this all happened.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Osler Hoskin & Harcourt LLP, Bankruptcy, Defined benefit pension plan
    Authors:
    Lesha Van Der Bij
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt LLP

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