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    Business rescue provisions of the Companies Act clarified
    2015-06-17

    On 20 May 2015, the Supreme Court of Appeal (in the matter of African Banking Corporation of Botswana v Kariba Furniture Manufacturers & Others) clarified one of the biggest uncertainties arising out of the business rescue provisions of the Companies Act. The Court has now clarified the meaning of the term “binding offer” in a manner which not only brings clarity to the business rescue regime in general, but also will provide greater comfort to banks and other creditors.

    Filed under:
    South Africa, Company & Commercial, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Fasken, South Africa Supreme Court of Appeal
    Location:
    South Africa
    Firm:
    Fasken
    Pay to play
    2013-07-12

    Thanks to a decision of the Supreme Court of British Columbia released on June 13, 2013, Court-appointed receivers can now accept appointments with greater confidence that their fees and expenses incurred in passing their accounts are recoverable from the estate - or possibly from a third party who raises opposition, if no assets remain in the estate.

    In Re Avant Enterprises Inc.[1], the Supreme Court of British Columbia expressed its reluctance to leave its receiver exposed in respect of costs incurred in the passing of its accounts.

    Filed under:
    Canada, British Columbia, Insolvency & Restructuring, Litigation, Fasken
    Authors:
    Vicki Tickle , Kibben Jackson
    Location:
    Canada
    Firm:
    Fasken
    Commentary on Caouette v. Boutin-Jacques (Succession de) – non-compliance with formalities and good faith in the liquidation of a succession
    2013-02-20

    INTRODUCTION 

    In theory, when liquidating a succession, publication formalities must be observed so that the various creditors can present themselves and claim their due. This formality also gives the successors an overall view of the assets and liabilities of the succession before deciding whether or not to accept it.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Fasken, Debt, Liquidation, Good faith
    Authors:
    Antoine Aylwin
    Location:
    Canada
    Firm:
    Fasken
    Indalex: DIP lenders smile, ABLs frown and directors are perplexed
    2013-02-06

    On February 1, 2013, the Supreme Court of Canada released its decision in Sun Indalex Finance, LLC v. United Steelworkers[1]. The ruling:

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Fasken, Fiduciary, Debtor in possession, Constructive trust, United Steelworkers, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Jon Levin , Aubrey Kauffman , Dylan A. Chochla
    Location:
    Canada
    Firm:
    Fasken
    Supreme Court holds that environmental clean-up orders may be compromised under the CCAA, depending on the facts
    2012-12-12

    After reserving judgment for more than a year, the Supreme Court of Canada (“SCC”) has released its decision in the matter of Her Majesty the Queen in Right of the Province of Newfoundland and Labrador v. AbitibiBowater Inc., et al [1].

    Filed under:
    Canada, Environment & Climate Change, Insolvency & Restructuring, Litigation, Fasken, NAFTA, Companies' Creditors Arrangement Act 1933 (Canada), Supreme Court of Canada, Quebec Court of Appeal
    Authors:
    R. Graham Phoenix , André Durocher
    Location:
    Canada
    Firm:
    Fasken
    Indalex, Shmindalex! Ontario Court of Appeal decision confirms that DIP priority is in the hands of the CCAA Court
    2012-07-30

    In the recent decision in the CCAA Proceedings of Timminco Ltd. et al.[1], the Ontario Court of Appeal has affirmed the CCAA Court’s jurisdiction to grant super-priority status to DIP financing charges (including over provincial deemed trusts) and, effectively, confirmed that a supervising CCAA Court has a broad discretion to do so.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Fasken, Debtor, Companies' Creditors Arrangement Act 1933 (Canada), Court of Appeal for Ontario
    Authors:
    Aubrey Kauffman , R. Graham Phoenix
    Location:
    Canada
    Firm:
    Fasken
    Ontario court reinforces use of CCAA disclaimer provisions in the context of a sale process
    2012-08-16

    In a recent decision in the Companies’ Creditors Arrangement Act (“CCAA”) Proceedings ofTimminco Ltd. et al.[1], Justice Morawetz of the Ontario Superior Court of Justice [Commercial List] observed that the disclaimer provisions of the CCAA apply equally in the context of a restructuring plan and a sales process.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Fasken
    Authors:
    Aubrey Kauffman , R. Graham Phoenix
    Location:
    Canada
    Firm:
    Fasken
    Lenders beware: Ontario Court of Appeal grants super-priority status to pension deficits
    2011-04-19

    The Ontario Court of Appeal recently addressed the issue of pension deficits in the context of a restructuring under the Companies' Creditors Arrangement Act (the "CCAA"). However, unlike past decisions, in Re Indalex the Court held that such deficits may have priority against monies advanced under interim debtor-in-possession ("DIP") financing agreements authorized by a CCAA judge. This apparent departure from the conventional understanding of the priority of pension deficit claims and related issues should raise concerns for lenders, employers, and plan administrators.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Fasken, Bankruptcy, Breach of contract, Fiduciary, Beneficiary, Debt, Liability (financial accounting), Liquidation, Defined benefit pension plan, Constructive trust, Title 11 of the US Code, Companies' Creditors Arrangement Act 1933 (Canada), Court of Appeal of England & Wales, Court of Appeal for Ontario
    Authors:
    Aubrey Kauffman , Stuart Brotman , Ross A. Gascho
    Location:
    Canada
    Firm:
    Fasken
    September 18, 2009 – Canada’s insolvency reforms in force
    2009-08-06

    In 2005, Parliament passed a comprehensive package of reforms to Canadian insolvency and restructuring laws. The purpose of these amendments was to provide additional protections for employees, codify existing case law and practice, bolster the proposal process and conform Canadian laws concerning cross-border insolvencies to international practice.

    Filed under:
    Canada, Insolvency & Restructuring, Fasken, Wage, Bankruptcy, Debtor, Debt, Liquidation, Annual leave, US Federal Government, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    John Grieve , Rinus de Waal , Aubrey Kauffman , Edmond Lamek , Alain Riendeau , Robert Paydon
    Location:
    Canada
    Firm:
    Fasken
    New pension contribution priorities under the Bankruptcy and Insolvency Act
    2008-11-24

    The priorities of some pension claims on bankruptcy and receivership changed as a result of amendments effective July 8, 2008 to the Bankruptcy and Insolvency Act R.S.C. (Canada) (the “BIA”).  

    Priority Before the Amendments

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Fasken, Wage, Bankruptcy, Debtor, Unsecured debt, Income tax, Liquidation, Unemployment benefits, Secured creditor, US Federal Government, Canada Pension Plan Act 1985, Bankruptcy and Insolvency Act 1985 (Canada)
    Location:
    Canada
    Firm:
    Fasken

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