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    Reorganization proceedings continued notwithstanding allegations of conflict
    2010-02-25

    In a recent decision of the Ontario Superior Court of Justice, Re Smurfit-Stone Container Canada Inc., Justice Pepall examined the conflicting interests that arise where companies within a group of restructuring companies have made intercompany loans to one another, and where the board of directors mirror each other in each subsidiary.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Dentons, Conflict of interest, Bankruptcy, Debtor, Unsecured debt, Board of directors, Interest, Prejudice, Subsidiary, Companies' Creditors Arrangement Act 1933 (Canada), Trustee, Ontario Superior Court of Justice
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    In re TOUSA, Inc.— a cautionary tale for Canadian lenders
    2010-03-12

    On October 13, 2009, a U.S. Bankruptcy Court in Florida issued an opinion invalidating, under U.S. fraudulent conveyance law, guaranties and security interests given by certain subsidiaries to secure the $200 million first lien and $300 million second lien credit facilities made to the subsidiaries’ parent corporation, TOUSA, Inc. (In re TOUSA, Inc., 2009 WL 3519403, at *1 (Bankr. S.D. Fla. 2009).

    Filed under:
    Canada, USA, Florida, Banking, Insolvency & Restructuring, Litigation, Hodgson Russ LLP, Bond (finance), Bankruptcy, Debtor, Fraud, Interest, Debt, Liability (financial accounting), Conveyancing, Joint and several liability, Subsidiary, United States bankruptcy court
    Authors:
    Victoria J. Saxon
    Location:
    Canada, USA
    Firm:
    Hodgson Russ LLP
    Enforceability opinions – the ongoing need for indemnities
    2010-04-14

    In dealing with collateral provided by a third party to support the obligations of the prime debtor, lenders and their counsel need to remember the impact of the federal Bankruptcy and Insolvency Act.

    Ontario’s Personal Property Security Act (PPSA) was amended to broaden the definition of the word “debtor.” However, the Bankruptcy and Insolvency Act’s (BIA) definition of a “secured creditor” is still restricted to a person holding a charge or a lien “as security for debt due or accruing to the person (lender) holding the debt.”

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Miller Thomson LLP, Shareholder, Debtor, Collateral (finance), Interest, Debt, Secured creditor, Secured loan, Bankruptcy and Insolvency Act 1985 (Canada), Uniform Commercial Code (USA), Personal Property Security Act 1990 (Canada)
    Authors:
    Jennifer Babe , Andre Kuyntjes
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Classification of creditors under the CCAA
    2009-11-30

    In a corporate reorganization under the Companies’ Creditors Arrangement Act (the “CCAA”), the design of appropriate classes of creditors can be central to the success of the restructuring initiative. The requisite “double majority” for a plan of arrangement to be approved, being a majority in number and two thirds by value of support from creditors, is required per class in order to be binding on that class.

    Filed under:
    Canada, Insolvency & Restructuring, Dentons, Debtor, Unsecured debt, Interest, Consideration, Debt, Liability (financial accounting), Liquidation, Common law, Constitutional amendment, Companies' Creditors Arrangement Act 1933 (Canada)
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    Comparing US and Canadian rules for debt forgiveness
    2009-10-29

    In the current recession, some North American businesses facing difficulty in meeting their debt obligations may consider the implications of restructuring their debt in Canada or the US. The rules in the two jurisdictions have some similarities, but also some significant differences that should be examined in any such restructuring.

    Filed under:
    Canada, USA, Insolvency & Restructuring, Tax, Cassels Brock & Blackwell LLP, Share (finance), Bankruptcy, Shareholder, Debtor, Interest, Taxable income, Debt, Debt relief, Fair market value, Default (finance), Preferred stock, Bankruptcy discharge, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Lorne H. Saltman
    Location:
    Canada, USA
    Firm:
    Cassels Brock & Blackwell LLP
    New bankruptcy law amendments may impact securitization
    2009-11-23

    On September 18, 2009, a number of amendments to Canada's Bankruptcy and Insolvency Act (BIA) and Companies Creditors Arrangement Act (CCAA) came into force. The amendments were passed in 2005 and 2007 but, aside from a few provisions that became effective in July 2008, the amendments sat dormant, awaiting proclamation into force. Pursuant to Order in Council P.C. 2009-1207, almost all of these amendments have now been brought into force. Some of these provisions will be of interest to participants in the securitization market.

    Filed under:
    Canada, Insolvency & Restructuring, Securitization & Structured Finance, Stikeman Elliott LLP, Debtor, Security (finance), Interest, Over-the-counter (finance), Personal property, Contract for difference, Ontario Securities Commission, Bank of Canada, Bankruptcy and Insolvency Act 1985 (Canada), Supreme Court of Canada
    Authors:
    Mark E. McElheran , Philip J. Henderson
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP
    Set off as a “security interest” for payroll super priority rights of CRA
    2009-10-20

    Caisse populaire Desjardins de l’Est de Drummond v. Canada, 2009 SCC 29 (Can LII) (S.C.C.); on appeal from 2006 FCA 366 (Can LII)

    The Caisse granted Camvrac a line of credit of up to $297,000. Camvrac deposited $200,000 with the Caisse subject to a “Security Given Through Savings” agreement (the “Savings Agreement”) and agreed:

    (i) to have the $200,000 on deposit as long as the line of credit was outstanding; and

    Filed under:
    Canada, Banking, Employment & Labor, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Wage, Debtor, Interest, Income tax, Debt, Tax deduction, Unemployment benefits, Common law, Line of credit
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Lack of PPSA notice of sale and claim for deficiency balance
    2009-10-20

    National Leasing Group Inc. v. Raymond Veterinary Clinic Ltd., [2009] A.W.L.D. 2017, 2009 ABQB 219 (Alta. Q.B.)

    The Lessor leased specialized medical equipment to the corporation and three individuals as lessees. The veterinary clinic failed and closed its doors.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Collateral (finance), Interest
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Court denies CCAA protection for debtor companies
    2009-09-23

    In a recent decision released by Madam Justice Kent of the Alberta Court of Queens Bench (the “Court”) the Court declined to grant Octagon Properties Group Ltd. and certain affiliates (“Octagon” or the “Debtors”) relief pursuant to the Companies’ Creditors Arrangement Act, R.S.C. 1985 c.C36 (“CCAA”).

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Shareholder, Debtor, Unsecured debt, Interest, Mortgage loan, Foreclosure, Liquidation, Stakeholder (corporate), Cashflow, Default (finance), Debtor in possession
    Authors:
    Roger Jaipargas
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Court affirms priority entitlement of Canadian creditors to post-liquidation interest from Canadian branch of foreign insurance company
    2009-09-02

    On July 14, 2009, the Ontario Superior Court of Justice released its decision in Canada (Attorney General) v. Reliance Insurance Company, an application regarding the allocation of surplus arising from the liquidation of the Canadian branch (Reliance Canada) of U.S.-based Reliance Insurance Company (Reliance U.S.), a property and casualty insurer that was itself in liquidation.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Insurance, Litigation, Stikeman Elliott LLP, Dividends, Interest, Reinsurance, Liquidation, Substantive law, Liquidator (law), Office of the Superintendent of Financial Institutions (Canada), KPMG, Minister of Justice (Canada), Ontario Superior Court of Justice, Commonwealth Court of Pennsylvania
    Authors:
    Stuart S. Carruthers , Elizabeth Pillon
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP

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