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    Obligations to pensioners in an insolvency: Supreme Court clarifies the law
    2013-02-01

    The Supreme Court of Canada overturned the Ontario Court of Appeal today in what is one of the most highly-anticipated cases for the pension and insolvency bars pending before the courts. In Indalex (Re) 2013 SCC 6, the court provided clarity regarding some key questions relating to the governance of an employer-administered pension plan during a proceeding under the Companies’ Creditors Arrangement Act (CCAA). The judges split on some of the issues, but here is our brief round-up:

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Dentons, Fiduciary, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Timothy M. Banks
    Location:
    Canada
    Firm:
    Dentons
    Re Indalex: Canada’s top court provides some clarity for insolvent companies with pension deficiencies
    2013-02-04

    On February 1, 2013, the Supreme Court of Canada in Re Indalex allowed in part the appeal of Sun Indalex Finance and, in doing so, delivered guidance to companies entering into restructuring proceedings.  

    Background

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Torys LLP, Breach of contract, Fiduciary, Beneficiary, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Jessica Bullock , Scott Bomhof , David Bish , Tom Zverina , Amanda C. Balasubramanian
    Location:
    Canada
    Firm:
    Torys LLP
    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
    Supreme Court of Canada restores super-priority of DIP lenders in CCAA proceedings
    2013-02-01

     

    In (Re) Indalex, the Supreme Court of Canada (SCC) affirmed the super-priority of the security granted to a debtor-in-possession (DIP) lender, over a deemed trust created under provincial pension legislation, in the context of a Companies’ Creditors Arrangement Act (CCAA) proceeding. The SCC’s analysis leaves open further issues.

    Filed under:
    Canada, Ontario, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Norton Rose Fulbright, Fiduciary, Companies' Creditors Arrangement Act 1933 (Canada), Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Daniel Pearlman
    Location:
    Canada
    Firm:
    Norton Rose Fulbright Canada 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
    Uncertainty for debtor-in-possession (DIP) lenders and employers acting as pension plan administrators
    2012-02-08

    In Re Indalex Limited, the OCA surprised insolvency, pension and financial services professionals by ruling that pension plan deficiency claims can have priority over the claims of DIP lenders in the context of Companies’ Creditors Arrangement Act proceedings.

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Blake, Cassels & Graydon LLP, Debtor, Fiduciary, Beneficiary
    Location:
    Canada
    Firm:
    Blake, Cassels & Graydon LLP
    In DP financing we trust? Supreme Court of Canada to hear Indalex appeal
    2011-12-05

    The Supreme Court has announced it will hear the appeal in the high profile Indalex Ltd., Re. The appeal is of great interest to the commercial litigation, insolvency and pension bar. Its outcome will be closely watched and may have dramatic impact on Canadian corporate reorganizations.

    Background

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, McCarthy Tétrault LLP, Fiduciary, Trade union, Commercial law, Secured creditor, United Steelworkers, Supreme Court of Canada, Court of Appeal for Ontario
    Authors:
    Ronald Podolny
    Location:
    Canada
    Firm:
    McCarthy Tétrault LLP
    Indalex decision gives priority to pensions in corporate insolvency
    2011-07-27

    The Indalex decision, released by the Ontario Court of Appeal earlier this year, gave priority to pension plan members over other secured creditors that had advanced funds to keep Indalex from bankruptcy.  This case came as a surprise to many practitioners and may have far-reaching implications for pension plan administrators and creditors alike.&nbs

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Heenan Blaikie LLP, Conflict of interest, Surety, Debtor, Fiduciary, Defined benefit pension plan, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Personal Property Security Act 1990 (Canada), Court of Appeal for Ontario
    Authors:
    Jackie Vandermeulen
    Location:
    Canada
    Firm:
    Heenan Blaikie LLP
    Minimizing risk for creditors' nominee directors
    2011-07-26

    A nominee director of a corporation appointed by one of its creditors may encounter risk of liability where that creditor is engaged with the corporation in efforts to restructure its debt. Steps can be taken to minimize the risk of such liability.

    Nominee Directors in Canada

    Filed under:
    Canada, Insolvency & Restructuring, Real Estate, Osler Hoskin & Harcourt LLP, Conflict of interest, Share (finance), Confidentiality, Debtor, Fiduciary, Board of directors, Interest, Debt, Non-disclosure agreement, Debt restructuring
    Authors:
    Richard Borins
    Location:
    Canada
    Firm:
    Osler Hoskin & Harcourt 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

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