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    Allocation of restructuring costs: don’t be caught by surprise
    2010-11-23

    The aggregate costs associated with a formal court-supervised insolvency proceeding can be substantial. In Canada, the obligation to pay these restructuring costs are typically secured by court-ordered charges over all of the property of the debtor and can rank in priority to the liens of secured creditors in the same collateral. As a result, these costs can have a material impact on the ultimate net recovery received by creditors. But how is the burden of these costs shared among secured creditors?

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, McMillan LLP, Costs in English law, Debtor, Collateral (finance), Accounting, Debt, Legal burden of proof, Secured creditor, Secured loan, Pro rata
    Authors:
    Waël Rostom , Brett Harrison
    Location:
    Canada
    Firm:
    McMillan LLP
    Court clarifies elements of new interim financing rules
    2010-10-05

    Cow Harbour Construction Ltd1

    introduction

    The 2009 amendments to the Companies’ Creditors Arrangement Act (Canada) (the “CCAA”) and the Bankruptcy and Insolvency Act (Canada) codified with some modifications judge made law giving a court authority to grant super-priority priming liens to secure interim financing (or debtorin- possession financing).

    Filed under:
    Canada, Alberta, Insolvency & Restructuring, Litigation, McMillan LLP, Debtor, Collateral (finance), Accounts receivable, Debt, Collection agency, Cashflow, Secured loan, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Waël Rostom
    Location:
    Canada
    Firm:
    McMillan LLP
    Allocating restructuring costs amongst creditors: don’t get stuck holding the bag
    2010-09-20

    An increasing number of restructuring cases involve several creditors with security over varied assets or asset classes. In such cases there is often a dispute over allocation of the costs of the reorganization. This is particularly true in failed restructurings where costs are high and realizations are low.

    Filed under:
    Canada, Alberta, Insolvency & Restructuring, Litigation, McMillan LLP, Costs in English law, Debtor, Holding company, Valuation (finance), Pro rata
    Authors:
    Brett Harrison
    Location:
    Canada
    Firm:
    McMillan LLP
    Jurisdiction is in the eye of the enforcer
    2010-04-20

    If you intend to enforce a judgement in Canada, you should know that the question of the US Court’s jurisdiction will likely be determined by the Canadian Court enforcing the judgement using its own test. The grounds on which the US Court took jurisdiction will carry little weight in the eyes of the Canadian enforcing Court.

    Filed under:
    Canada, USA, Insolvency & Restructuring, Litigation, McMillan LLP, Bankruptcy, Fraud, Summary offence, Default (finance), Capital One, United States bankruptcy court
    Authors:
    Brett Harrison , Jeffrey Levine
    Location:
    Canada, USA
    Firm:
    McMillan LLP
    The best defence is…a good defence
    2010-06-30

    Ontario Court Stays Retaliatory Action brought against Bank

    Financial institutions seeking to enforce a debt or guarantee through bankruptcy or other court proceedings are sometimes faced with meritless retaliatory court actions brought by debtors attempting to frustrate or further delay payment. In general, Ontario courts will not compel parties to litigate the same dispute on multiple fronts. Instead, one proceeding will be temporarily stayed pending resolution of the other where the same core issues are raised in both.

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, McMillan LLP, Bankruptcy, Credit (finance), Surety, Debtor, Breach of contract, Dividends, Accounts receivable, Debt, Prejudice, Ontario Superior Court of Justice
    Location:
    Canada
    Firm:
    McMillan LLP
    Bankruptcy and insolvency amendments aid IP licensees, but are they enough?
    2009-12-01

    With many companies going through financial trouble, there is a fear among licensees that they will lose their right to use licensed intellectual property ("IP") if the licensor becomes insolvent and wants to restructure. Up until now there has been much uncertainty in the common law as to whether an insolvent debtor may disclaim an IP licence agreement in a restructuring.

    Filed under:
    Canada, Insolvency & Restructuring, Intellectual Property, McMillan LLP, Bankruptcy, Debtor, Common law, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Location:
    Canada
    Firm:
    McMillan LLP
    Supreme Court of Canada denies priority to revenue Québec for bankrupt’s unremitted sales taxes
    2010-01-07

    On October 30, 2009, the Supreme Court of Canada issued its much awaited decision regarding Revenue Quebec's creative "owenership" claim over the tax portions of a bankrupt's accounts recievable.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, McMillan LLP, Supreme Court of Canada
    Location:
    Canada
    Firm:
    McMillan LLP
    Insolvency proceedings in Canada
    2010-01-20

    introduction

    This document provides a brief overview of insolvency proceedings in Canada. It outlines the Canadian legislative framework and briefly describes the receivership process, the bankruptcy regime and the formal restructuring alternatives available to debtors.

    legislative framework

    Filed under:
    Canada, Insolvency & Restructuring, McMillan LLP, Bankruptcy, Debtor, Collateral (finance), Personal property, Liability (financial accounting), Liquidation, Secured creditor, US Federal Government, US Constitution, Companies' Creditors Arrangement Act 1933 (Canada), Bankruptcy and Insolvency Act 1985 (Canada)
    Location:
    Canada
    Firm:
    McMillan LLP
    Set-off or security interest? Supreme Court’s expansion of enhanced federal deemed trust provisions raises some troubling issues
    2009-10-29

    Caisse Populaire Desjardins de l’Est de Drummond v. Canada, 2009 SCC 29

    Filed under:
    Canada, Banking, Insolvency & Restructuring, Litigation, McMillan LLP, Income tax, Personal property, Maturity (finance), Unemployment benefits, Line of credit, Secured creditor, Canada Revenue Agency, Income-Tax Act 1961 (India), Supreme Court of Canada, Federal Court (Canada)
    Authors:
    Robert M. Scavone
    Location:
    Canada
    Firm:
    McMillan LLP
    The impact of recent reforms to Canadian insolvency legislation
    2009-09-29

    On September 18, 2009, long-awaited amendments to the Bankruptcy and Insolvency Act (“BIA”) and the Companies’ Creditors Arrangement Act (“CCAA”) take effect that will have a significant impact on commercial insolvencies in Canada. While many of these changes reflect existing practice and case law, some introduce more novel concepts not developed by courts, broadening what can be accomplished under the insolvency regime. This article comments on salient features of the new amendments.

    Filed under:
    Canada, Insolvency & Restructuring, McMillan LLP, Wage, Debtor, Consideration, Cashflow, Market value, Constitutional amendment, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Location:
    Canada
    Firm:
    McMillan LLP

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