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    Refresher on the Failing Firm Defence
    2020-03-30

    In response to the COVID-19 virus, Canada’s federal government has restricted non-essential travel and closed the US border. Canada’s provincial governments have enacted highly restrictive measures including mandating the closure of facilities providing recreational programs (i.e. gyms), libraries, public and private schools, licensed childcare centres, bars and restaurants, theaters, cinemas and concert venues, and the list goes on. Some provinces have also banned gatherings of more than 5 people and prohibited all non-essential businesses.

    Filed under:
    Canada, Competition & Antitrust, Insolvency & Restructuring, Fasken, Coronavirus, Competition Bureau (Canada), Competition Act
    Authors:
    Justine Reisler , Chris Margison
    Location:
    Canada
    Firm:
    Fasken
    Amendments to the Bankruptcy and Insolvency Act (BIA) and the Companies’ Creditors Arrangement Act (CCAA)
    2019-11-01

    Today, amendments to the Bankruptcy and Insolvency Act (BIA)and the Companies’ Creditors Arrangement Act (CCAA), introduced to Parliament in April 2019 as Bill C-97, came into force. Certain of these amendments are likely to impact the usual flow of business among insolvency and restructuring professionals.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Fasken, Debtor, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Stuart Brotman , Aubrey Kauffman , Dylan A. Chochla , Daniel T. Richer
    Location:
    Canada
    Firm:
    Fasken
    Secured Creditors Beware: The SCC Surprises the Insolvency World in Redwater
    2019-02-07

    As Yeats said in his poem, The Second Coming: "mere anarchy is loosed upon the world". While perhaps not anarchy, certainly most insolvency practitioners expected the Alberta Court of Appeal decision in Redwater[1] to be upheld, preserving the priorities afforded to secured creditors and rendering the Provincial Government to be an unsecured Creditor.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Fasken, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada, Court of Appeal of Alberta
    Authors:
    John Grieve , Travis P. Lysak
    Location:
    Canada
    Firm:
    Fasken
    Assign at the Dotted Line: CCAA assignment orders and their impact on the contracts assigned - The SM Group Case
    2019-01-09

    On December 10, 2018, the Superior Court of Quebec (Court) released an important judgment concerning the assignment of contracts under the Companies' Creditors Arrangements Act (CCAA), in which the Court held that it was possible for an assignee to have contracts transferred to it without having to assume the monetary penalties arising from the assumed contracts for defaults by the assignor prior to the assignment.[1]

    Filed under:
    Canada, Quebec, Insolvency & Restructuring, Litigation, Fasken, Quebec Superior Court
    Authors:
    Nicolas Mancini , Marc-André Morin , Luc Béliveau
    Location:
    Canada
    Firm:
    Fasken
    Priority of Pension Claims in Insolvency
    2017-12-21

    The recent decision in ITB Marine Group Ltd. v. Northern Transportation Company Limited, 2017 BCSC 2007 ["ITB"] confirms the priority of pension claims in the insolvency context. The decision will be of interest to practitioners involved in priority disputes between secured creditors and beneficiaries of statutory deemed trusts, particularly those arising out of pension legislation.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Fasken, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Kibben Jackson , Fergus McDonnell
    Location:
    Canada
    Firm:
    Fasken
    Frivolous Actions in Receivership - The HRH Hotels Ltd. Case
    2016-06-28

    As the Courts have often stated, in bankruptcy and insolvency law, time is of the essence. Bankruptcy and insolvency legislation allows the Court to craft orders with the specific aim of shielding a Receiver against frivolous actions, such that the Receiver may complete his task of managing property while enforcing the rights of a secured creditor in a timely fashion. The HRH Hotels Ltd. case is one such example where the Court ruled that a plaintiff's claim against the Receiver was frivolous and constituted a collateral attack on the Receivership process.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Fasken, Bankruptcy, Res judicata and issue estoppel, Frivolous litigation, Secured creditor
    Authors:
    Luc Morin , Nicolas Mancini
    Location:
    Canada
    Firm:
    Fasken
    Certainly Uncertain: Construction Trusts After Iona
    2016-06-20

    The recent decision in Iona Contractors Ltd. v. Guarantee Company of North America, 2015 ABCA 240 [Iona] (PDF) (leave to appeal to the Supreme Court of Canada denied) clarifies the law regarding provincial statutory trusts in the insolvency context.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Fasken, Common law, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Kibben Jackson , Fergus McDonnell
    Location:
    Canada
    Firm:
    Fasken
    Liquidation chaos: new or old Companies Act?
    2020-01-30

    Somewhere close to Sandton – Africa’s richest square mile – lies the suburb of Parkmore in the Gauteng Province. This is the principal place of business of a debtor that cannot pay its debts, and is facing the barrel of an application for its winding-up. The debtor’s registered address is in Mbombela within the province of Mpumalanga – close to Africa’s Big Five game. Two court options come into play.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Litigation, Fasken, Debtor, Companies Act
    Authors:
    Haroon Y Laher
    Location:
    South Africa
    Firm:
    Fasken
    Chief Restructuring Officer - What role can it play?
    2020-01-30

    South African state-owned enterprises (SOEs) are coming under tremendous pressure to do something to extricate themselves from their financial woes. Any kind of bankruptcy event cannot be the answer: because of the obvious cross-default impact such a declaration will have on various debt and other instruments in the capital markets. It will also be catastrophic to the Government’s standing and rating in the financial markets.

    Filed under:
    South Africa, Insolvency & Restructuring, Fasken, State-owned enterprise
    Authors:
    Haroon Y Laher
    Location:
    South Africa
    Firm:
    Fasken
    Corporate Restructuring in South Africa - is there room for legislated pre-insolvency restructuring
    2020-01-30

    Chapter 6 of the South African Companies Act, 2008, as a corporate restructuring regime, provides a formal restructuring tool for financially distressed (which exists when a company is unable to pay its debts as they fall due (cash-flow insolvency) or when a company’s liabilities exceed the value of its assets (balance-sheet insolvency) or when those events are likely to occur in 6 months (imminent insolvency) companies.

    Filed under:
    South Africa, Company & Commercial, Insolvency & Restructuring, Fasken
    Authors:
    Haroon Y Laher
    Location:
    South Africa
    Firm:
    Fasken

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