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    Application to Replace a CCAA Monitor Denied for Lack of Standing
    2020-02-13

    On October 10, 2019, the Supreme Court of British Columbia (the “BCSC” or the “Court”) released its decision in 8640025 Canada Inc. (Re)1 (“8640025 Canada”), denying an application to replace the monitor (the “Monitor”) in a Companies’ Creditors Arrangement Act2 (the "CCAA") proceeding because the applicant was not a creditor and therefore had no standing to bring such an application.

    Filed under:
    Canada, British Columbia, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada), British Columbia Supreme Court
    Authors:
    Sam Babe , Gurpal Bopa Rai
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Alberta Court of Appeal Orders Trustee to Post Security for Costs
    2020-02-13

    On January 29, 2020, the Alberta Court of Appeal (the “Alberta CA”) released its decision in PricewaterhouseCoopers Inc. v Perpetual Energy Inc.1 (“Perpetual Energy”), granting applications requiring a trustee in bankruptcy (the “Trustee”) to post security for costs on appeals brought by the Trustee.

    Filed under:
    Canada, Ontario, Alberta, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Bankruptcy and Insolvency Act 1985 (Canada), Court of Appeal of Alberta
    Authors:
    Sam Babe
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Proactive Super-Priority of DIP Lenders Prevails over Reactive Post-Filing Creditors
    2020-02-13

    The Quebec Court of Appeal’s unanimous decision in Gestion Éric Savard1 reaffirms the super-priority ranking of CCAA2 DIP financing3 over regular unpaid post-filing obligations, absent steps being taken to reverse this usual order of priorities.

    Filed under:
    Canada, Quebec, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Debtor, Quebec Superior Court
    Authors:
    Ian Aversa , Jeremy Nemers
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Ontario Court Revisits Issue of Landlord Drawing on a Letter of Credit in Excess of BIA Preferred Claim
    2020-02-13

    In 7636156 Canada Inc. v. OMERS Realty Corporation1 (“7636156 v. OMERS”), the Ontario Superior Court of Justice (Commercial List) (the “Court”) held that a bankrupt’s landlord was only entitled to have drawn down on a letter of credit by an amount equal to the landlord’s priority claim for three months’ accelerated rent, rather than by the full amount of the letter of credit, and ordered that the landlord pay over the excess to the bankrupt’s trustee.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Real Estate, Aird & Berlis LLP | Aird & McBurney LP, Letter of credit, Landlord, Bankruptcy and Insolvency Act 1985 (Canada), Ontario Superior Court of Justice
    Authors:
    Sam Babe , Lynn Tay
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Location really is everything when it comes to dividing family property amid bankruptcy
    2020-02-14

    Whether a former spouse's pension can be shared after bankruptcy depends entirely on where he or she lives

    Resolving the way a separated couple’s property is dealt with can be complicated, but it gets even more complex if one of the spouses declares bankruptcy after separation.

    Filed under:
    Canada, Alberta, Insolvency & Restructuring, Litigation, Torkin Manes LLP, Bankruptcy
    Authors:
    Laurie H. Pawlitza
    Location:
    Canada
    Firm:
    Torkin Manes LLP
    Litigation Trends in Canada 2020
    2020-02-17

    With legislation, regulation, jurisprudence and practice evolving continually and rapidly, the need to stay current is more pressing than ever.

    As we moved into the new year, we prepared a summary of the main trends in Canadian litigation, grouped into three categories:

    • cannabis-related,
    • class action, and
    • energy sector litigation.

    The first two will be felt nationally; the last is more focused on Alberta.

    Cannabis-related Litigation

    Filed under:
    Canada, Competition & Antitrust, Construction, Energy & Natural Resources, Insolvency & Restructuring, IT & Data Protection, Litigation, Stikeman Elliott LLP, Cannabis, Personal data, Competition Bureau (Canada)
    Authors:
    Michael Mestinsek , Eliot N. Kolers , Stéphanie Lapierre
    Location:
    Canada
    Firm:
    Stikeman Elliott LLP
    The New Duty of Good Faith in Canadian Insolvency Proceedings
    2020-01-27

    Canada’s two main insolvency and restructuring statutes, the Bankruptcy and Insolvency Act (BIA) and the Companies’ Creditors Arrangement Act (CCAA) were recently amended to include a new duty of good faith on the part of all “interested persons” involved in an insolvency proceeding. The amendments do not define “good faith” or “interested persons”. Although requiring all participants in an insolvency proceeding to act in good faith may be a laudable objective, the statutory amendments are problematic.

    Filed under:
    Canada, Quebec, Insolvency & Restructuring, Litigation, Bennett Jones LLP, Debtor, Due diligence
    Authors:
    Raj S. Sahni
    Location:
    Canada
    Firm:
    Bennett Jones LLP
    Preserving Intellectual Property Rights in Licenses: Changes to the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act
    2019-11-22

    As we reported last week, on November 1, 2019, amendments to both the Bankruptcy and Insolvency Act (the “BIA”)

    Filed under:
    Canada, Company & Commercial, Insolvency & Restructuring, Litigation, Trademarks, Miller Thomson LLP, Bankruptcy and Insolvency Act 1985 (Canada), Ontario Superior Court of Justice
    Authors:
    Tamie Dolny , Peter Little
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Good-faith obligations survive bankruptcy of insured
    2019-11-26

    The Ontario Superior Court of Justice recently confirmed in Re McEwen (2019 ONSC 5593) that an insurer's duty of good faith is not extinguished on the bankruptcy of the insured.

    Facts

    In 2009 pedestrian Barbara Lynn Carroll was injured when she was struck by a motor vehicle operated by Robert McEwen and owned by Caroline McEwen.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Insurance, Litigation, Theall Group LLP, Insurance contract
    Authors:
    Callum Micucci
    Location:
    Canada
    Firm:
    Theall Group LLP
    Bankrupt Tenants and Landlords' Rights to Draw Upon a Letter of Credit Obtained as Security
    2019-11-29

    ​When a commercial tenant goes bankrupt, the respective rights of landlords and trustees can be complex to sort out. Yet, as illustrated by recent Ontario Superior Court decision 7636156 Canada Inc. v. OMERS Realty Corporation, 2019 ONSC 6106, this determination can have important ramifications on the assets available for distribution to creditors.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Real Estate, Borden Ladner Gervais LLP
    Authors:
    Geneviève Fauteux
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP

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