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    Collected and unremitted GST not a Crown priority under CCAA
    2011-02-02

    Century Services Inc. v. Canada (Attorney General), 2010 SCC 60

    Section 222(3) of the Excise Tax Act creates a deemed trust for unremitted GST, which operates despite any other act of Canada, except the Bankruptcy and Insolvency Act. However section 18.3(1) of the Companies’ Creditors Arrangement Act (the "CCAA") provides that any statutory deemed trust in favour of the Crown does not operate under the CCAA, subject to certain exceptions which do not mention GST.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Tax, Miller Thomson LLP, Bankruptcy, Debtor, Excise, Liquidation, Tax deduction, Goods and services tax (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Court of Appeal of England & Wales, Supreme Court of Canada
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Supreme Court of Canada: GST deemed trusts are inoperative in CCAA proceedings
    2010-12-23

    On December 16, 2010, the Supreme Court of Canada ( SCC) released its decision in Re Ted Leroy Trucking Ltd. In its decision, the SCC affirmed the importance of the Companies’ Creditors Arrangement Act (CCAA) as a flexible restructuring tool, and clarified the source and limits of the Court’s authority during CCAA proceedings. Furthermore, the Court overruled the judgment of the B.C.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy, Debtor, Excise, Liquidation, Good faith, Majority opinion, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), Court of Appeal of England & Wales, Supreme Court of Canada, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Priority of unpaid fuel taxes
    2011-01-05

    In our last Financial Services Flash, we emphasized the issue that lenders need to be aware of specific restrictions that may apply to the liquidation of inventory over which they have security. This Flash considers the general notion that a lender needs to be cognizant of some unique and sometimes unexpected liabilities of the borrower which may take priority over such lender’s security. There are, of course, many ‘priority payables’ which are commonly known, whether they relate to unpaid wages, certain sales taxes, pension plan obligations, etc.

    Filed under:
    Canada, Insolvency & Restructuring, Shipping & Transport, Tax, Aird & Berlis LLP | Aird & McBurney LP, Wage, Bankruptcy, Debtor, Debt, Liability (financial accounting), Liquidation, Bank reserves, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    The recognition of foreign insolvency proceedings
    2011-01-19

    In the Ontario case of Re Xerium Technologies Inc., the Superior Court of Justice (the “Ontario Court”) was asked to recognize an order made by the U.S. Bankruptcy Court for the District of Delaware (the “U.S. Court”) approving a prepackaged plan of reorganization (the “Plan”) of the debtors, Xerium Technologies Inc. and its subsidiaries (collectively, “Xerium”), made under Chapter 11 of the United States Code (the “U.S. Bankruptcy Code”).

    Filed under:
    Canada, USA, Ontario, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Conflict of laws, Surety, Debtor, Interest, Debt, Liquidation, Supplemental jurisdiction, US Code, Title 11 of the US Code, Companies' Creditors Arrangement Act 1933 (Canada), United States bankruptcy court, US District Court for District of Delaware
    Location:
    Canada, USA
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Ontario court confirms receiver’s limited liability to landlord for occupation
    2010-10-18

    Where a tenant becomes insolvent, landlords are often faced with a courtappointed Receiver inserted in place of the insolvent debtor who wishes to operate the tenant’s business or conduct a sale of assets on site. While the landlord may be able to successfully negotiate payment of occupation rent, a common issue that arises iswho is responsible for any damages to the leased premises? A recent decision of the Ontario Court of Appeal in General Motors Corporation v.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Real Estate, Miller Thomson LLP, Debtor, Landlord, Leasehold estate, Personal property, Liquidation, Court of Appeal for Ontario
    Authors:
    Craig A. Mills , Margaret R. Sims
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Recognition of US plan confirmation order under the CCAA
    2010-11-16

    In the recent decision in Re Xerium Technologies Inc.1, the Ontario Superior Court of Justice recognized an order made by the U.S. Bankruptcy Court for the District of Delaware that confirmed the debtor’s pre-packaged Chapter 11 plan of reorganization. The decision provides useful guidance on how the Ontario Court may consider similar applications in the future. Many will take comfort from the fact that the decision revisits a number of relevant factors established in case law that pre-dates the current formulation of the cross-border provisions that make up Part IV of the CCA A.

    Filed under:
    Canada, USA, Delaware, Ontario, Insolvency & Restructuring, Litigation, McMillan LLP, Credit (finance), Debtor, Discovery, Liquidation, Good faith, Comity, Solicitation, Subsidiary, Supplemental jurisdiction, UNCITRAL, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Authors:
    Adam C. Maerov
    Location:
    Canada, USA
    Firm:
    McMillan LLP
    Mind the gap: direction given for defaulting debtors in a BIA proposal
    2010-09-08

    formal proposal under the Bankruptcy and Insolvency Act (BIA) is a powerful alternative to bankruptcy. The benefits of a proposal for the debtor are clear: the debtor reduces its debt load and avoids bankruptcy. However, proposals are also beneficial to creditors since generally the creditor’s recovery in a proposal scenario is better than the potential recovery from a liquidation through a bankruptcy. In simple terms, upon the successful completion of a proposal, the debtor gets a “fresh start” and creditors recover more than they would in a bankruptcy.

    Filed under:
    Canada, Insolvency & Restructuring, Miller Thomson LLP, Bankruptcy, Debtor, Debt, Legal burden of proof, Liquidation, Default (law), Default (finance), Bankruptcy discharge, Constitutional amendment, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Authors:
    Craig A. Mills , Margaret R. Sims
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Court approval of cross-border DIP financing guarantees
    2010-05-11

    InterTAN Canada Ltd (“InterTAN”) is a wholly owned subsidiary of US based Circuit City Store, Inc. (“Circuit City”), a consumer electronics retailer. In Canada, InterTAN operates retail stores under the trade name “The Source by Circuit City”. Prior to Circuit City's filing under Chapter 11 of the United States Bankruptcy Code, InterTAN was a borrower under a syndicated credit facility between Circuit City, certain U.S. affiliates, InterTAN, Bank of America NA, as agent, and certain other loan parties (the “Secured Credit Facility”).

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Dentons, Retail, Credit (finance), Surety, Debtor, Unsecured debt, Liquidation, Stakeholder (corporate), Subsidiary, Bank of America, Companies' Creditors Arrangement Act 1933 (Canada)
    Location:
    Canada
    Firm:
    Dentons
    Canadian perspective on Lehman ruling re: mutuality and set-off
    2010-06-04

    That darn Lehman Brothers bankruptcy sure is raising some interesting insolvency issues for derivatives market participants (and their lawyers of course). It’s interesting (at least for us insolvency nerds) to think about how some of those issues might play out under Canadian insolvency laws. Here are some thoughts on one of the recent cases with my Canadian spin.

    Filed under:
    Canada, Derivatives, Insolvency & Restructuring, Litigation, Stikeman Elliott LLP, Bankruptcy, Debtor, Swap (finance), Debt, Liquidation, Lehman Brothers cases, Derivatives market, International Swaps and Derivatives Association, Lehman Brothers, Title 11 of the US Code, Bankruptcy and Insolvency Act 1985 (Canada), United States bankruptcy court
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP
    Nortel update – stay extended; Ontario Court of Appeal affirms non-payment of termination and severance
    2010-01-26

    Extension of stay and Settlement Agreement

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Tax, Cassels Brock & Blackwell LLP, Debtor, Liquidation, Transfer pricing, Stakeholder (corporate), Severance package, Employment Standards Act 2000 (Ontario) (Canada), Supreme Court of Canada, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP

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