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    Where do we go from here? Alberta Court approves renouncement of AER-licensed assets by Trustees and Receivers to avoid monetary environmental obligations
    2016-05-27

    The Alberta Court of Queen’s Bench has released its highly anticipated decision in Redwater Energy Corporation (Re), 2016 ABQB 278 (“Redwater”).

    Filed under:
    Canada, Alberta, Energy & Natural Resources, Environment & Climate Change, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Chidinma B. Thompson , Miles Pittman
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    That comfort letter may be of limited comfort
    2013-06-11

    Punj Lloyd Ltd (PLL), the ultimate parent of Simon Carves Ltd (SCL), provided 'letters of support' (what would in North America be called 'comfort letters') indicating to the board of SCL that PLL would 'provide the necessary financial and business support to ensure that [SCL] continues as a going concern'. This is precisely what SCL did not do: it went into administration, leaving invoices unpaid and unsecured creditors largely out of luck.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP
    Location:
    United Kingdom
    Firm:
    Borden Ladner Gervais LLP
    Lehman derivatives transaction did not run afoul of fraudulent conveyance rules, says UKSC
    2011-09-29

    In 2002 a European subsidiary of Lehman Brothers created a complicated synthetic debt structure called Dante, which was intended to provide credit insurance for another subsidiary, LBSF, against credit events affecting certain reference entities, the obligations of which formed the reference portfolio. A special purpose vehicle issued notes to investors, the proceeds of which were used to purchase collateral which vested in a trust. The issuer entered into a swap with LBSF under which LBSF received the income on the collateral and paid the issuer the amount of interest due to noteholders.

    Filed under:
    United Kingdom, Banking, Derivatives, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Collateral (finance), Interest, Swap (finance), Debt, Good faith, Common law, Default (finance), Subsidiary, Lehman Brothers, UK Supreme Court, Trustee
    Location:
    United Kingdom
    Firm:
    Borden Ladner Gervais LLP
    Licenses and Parliament’s lexicon
    2008-12-08

    The Supreme Court of Canada released its decision in Saulnier v. Royal Bank of Canada on October 24, 2008. The decision provides welcome clarification concerning the nature of government licenses and confirms that at least certain kinds of licenses constitute property for the purposes of the Bankruptcy and Insolvency Act (the “BIA”) and for the purposes of Canadian personal property security legislation. The decision is also important because it takes a purposive and commercial approach to the interpretation of bankruptcy and personal property security legislation.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy, Interest, Personal property, Common law, Secured creditor, Tangible property, Bankruptcy and Insolvency Act 1985 (Canada), Personal Property Security Act 1990 (Canada), Royal Bank of Canada, Supreme Court of Canada
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Decisions on secured lenders’ rights and remedies in 2022
    2022-03-08

    As Canada prepares to emerge from the COVID-19 pandemic, factors such as the elimination of government pandemic support and rising interest rates may significantly affect lenders’ decisions in 2022. Many expect that withdrawal of government funding will create a wave of insolvency filings in Canada. Although there remains significant uncertainty, secured lenders may be comforted by recent court decisions across Canada that have affirmed lenders’ rights and remedies in cases of default. This article summarizes these recent decisions and offers implications for lenders going forward.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Coronavirus, British Columbia Supreme Court
    Authors:
    Josef G. A. Kruger , Robyn Gurofsky , Jack Maslen , Anthony Mersich
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Managing COVID-19 and its fallout
    2020-05-06

    These are unprecedented and uncertain times. Everywhere, the COVID-19 pandemic has strained revenue streams and asset prices, shaken investor and consumer confidence, and caused overall financial conditions to deteriorate. Everyone is asking the same question: How do we deal with the financial fallout of COVID-19?

    In many cases, parties are working together to overcome these financial challenges, preserve value and navigate a mutually beneficial path forward.

    Filed under:
    Canada, Insolvency & Restructuring, Borden Ladner Gervais LLP, Due diligence, Coronavirus
    Authors:
    Lisa Hiebert
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    The Supreme Court of Canada confirms the Regulator’s enforcement powers over bankrupt licensees’ assets in Orphan Well Association v. Grant Thornton Ltd.
    2019-02-04

    On January 31, 2019, the Supreme Court of Canada released its decision in Orphan Well Association v. Grant Thornton Ltd., popularly known as Redwater. In a 5-2 split decision, a majority of the Supreme Court allowed the appeal and held that the Alberta Energy Regulator’s (AER/Regulator) assertion of its statutory enforcement powers over an insolvent licensee’s assets does not create a conflict with the federal Bankruptcy and Insolvency Act (BIA) as to trigger the constitutional doctrine of federal paramountcy.

    Filed under:
    Canada, Energy & Natural Resources, Environment & Climate Change, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy and Insolvency Act 1985 (Canada), Alberta Energy Regulator, Supreme Court of Canada
    Authors:
    Chidinma B. Thompson , Josef G. A. Kruger , Miles Pittman
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    (Red)water under the bridge? Court of Appeal upholds right of trustee to disclaim uneconomic assets in the Redwater decision
    2017-04-25

    ​On April 24, 2017, the Alberta Court of Appeal issued a decision in Orphan Well Association v Grant Thornton Limited, 2017 ABCA 124. The decision is arguably the past year’s most hotly anticipated and discussed decision in Alberta, despite involving bankruptcy proceedings of a relatively small junior oil and gas company. The Court of Appeal, in a 2-1 split, upheld the trial judge’s decision that a receiver can disclaim or renounce uneconomic assets that are subject to costly environmental liabilities.

    Filed under:
    Canada, Alberta, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Environmental remediation, Bankruptcy, Alberta Energy Regulator, Court of Appeal of Alberta
    Authors:
    Matti Lemmens , Chidinma B. Thompson
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Ontario Court Refuses to Add Underwriters to Class Action against Bankrupt Issuer
    2016-05-03

    In a decision released April 27, 2016 in LBP Holdings Ltd. v. Allied Nevada Gold Corp., Justice Belobaba dismissed a motion by a representative plaintiff to add certain underwriters as defendants to a securities class proceeding. The defendant gold mining company, Allied Nevada, effected a secondary public offering financed as a "bought deal" by two underwriters.

    Filed under:
    Canada, Ontario, Capital Markets, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy, Class action, Underwriting
    Authors:
    Bevan Brooksbank
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    ‘Peripheral’ administrative information about lawyer’s file presumptively privileged
    2013-03-19

    Morris Kaiser’s trustee in bankruptcy, Soberman Inc., thought it smelled a rat: while claiming to be impecunious, Kaiser appeared to be living a life of ‘some means’, which included trips to casinos in the US. Kaiser claimed he was drawing advances on the credit card of a buddy, Cecil Bergman, but the trustee suspected the whole thing was a front to shield Kaiser’s assets from his creditors.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP

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