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    Certainty of intention must be clear for trust claims to prevail over secured creditors
    2016-03-30

    Trust claims against a borrower’s assets are something that no secured creditor wants to be confronted with. Such claims are often unexpected because they are, for the most part, undetectable. They lurk in the shadows, out of the reach of traditional due diligence measures and PPSA searches. As a result, even the most prudent of creditors can sometimes find themselves facing these undocumented and unquantifiable claims.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Secured creditor
    Location:
    Canada
    Firm:
    Gowling WLG
    Holding the black bag: Personal health information and bankruptcy proceedings
    2016-02-10

    Introduction

    A recent decision of the Ontario Information and Privacy Commissioner (OPC) highlights the potentially broad application of the Personal Health Information Protection Act (PHIPA).1

    Filed under:
    Canada, Ontario, Healthcare & Life Sciences, Insolvency & Restructuring, IT & Data Protection, Litigation, Gowling WLG
    Location:
    Canada
    Firm:
    Gowling WLG
    Personal bankruptcy discharges — preparing for and arguing an opposed discharge
    2014-07-24

    Introduction

    A bankruptcy discharge hearing is the forum for the Court’s determination of a bankrupt’s application for discharge which has been opposed by one or more of: a creditor, the Trustee, or the Superintendent of Bankruptcy. This paper will aim to provide practical advice on preparing for and arguing an opposed discharge, whether from the perspective of the bankrupt, an opposing creditor, or the Trustee.1

    Discharge

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Gowling WLG, Bankruptcy, Bankruptcy discharge, Bankruptcy and Insolvency Act 1985 (Canada)
    Location:
    Canada
    Firm:
    Gowling WLG
    Sophisticated guarantors held to the terms of their deal
    2013-12-19

    If Peter Morton and Cinitel Corp. had their way, every lender would have a distinct duty to a guarantor to permit the sale of a defaulting borrower’s assets as a going concern. In their view, a lender should be required to maximize its recovery from the borrower and to minimize any claim made on a guarantee. Fulfilling that duty would also obligate a lender to keep funding a borrower while that asset sale was negotiated and completed. It is enough to make any lender cringe.

    Fortunately, the Ontario Court of Appeal disagreed with Morton and Cinitel’s view of the lending world.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Surety, Debtor, Default (finance)
    Authors:
    Richard C. Dusome
    Location:
    Canada
    Firm:
    Gowling WLG
    Ontario: declaration that security constituted improper preference upheld on appeal
    2013-03-28

    In an earlier edition of Fully Secured (June 27, 2012 – Volume 3, Number 2), we reported on the Ontario Court of Justice decision in Snoek 7 where security granted by a borrower (“HSLP”) to a group of individual creditors (“B”) was held to constitute an improper preference and declared invalid following a challenge by the trustee in bankruptcy. B had been one victim of a Ponzi scheme involving numerous unsecured creditors of HSLP.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Debtor, Debt, Default (finance), Unsecured creditor, Court of Appeal for Ontario
    Authors:
    Richard C. Dusome
    Location:
    Canada
    Firm:
    Gowling WLG
    The importance of documenting shareholder loans (Ontario)
    2012-12-19

    Shareholders often overlook the need to properly document loan advances in their haste to provide funds to the company, without being aware of the significant consequences that can result.

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Shareholder, Interest, Unsecured creditor
    Location:
    Canada
    Firm:
    Gowling WLG
    Recent Ontario Court of Appeal decision provides insight on the recognition of foreign orders
    2021-08-17

    Many describe the United States as Canada's most important trade partner. Cross-border insolvency proceedings between the two jurisdictions are frequent and the recognition by one country's court of the other's bankruptcy orders is an important tool in facilitating the restructuring of companies with operations that spread across North America. A recent decision from the Ontario Court of Appeal (leave to appeal of which was denied by the Supreme Court of Canada) invites us to reflect on the delicate balance between comity for foreign orders and Canada's sovereignty over domestic laws.

    Filed under:
    Canada, USA, Ontario, Insolvency & Restructuring, Litigation, Gowling WLG, Court of Appeal for Ontario, Ontario Superior Court of Justice
    Authors:
    Virginie Gauthier
    Location:
    Canada, USA
    Firm:
    Gowling WLG
    Update on the Re Indalex Limited decision
    2012-03-28

    In a recent edition of Fully Secured (September 29, 2011 – Volume 2, No. 3), the decision of the Ontario Court of Appeal in Re Indalex Limited was discussed, in which the Ontario Court of Appeal held that a statutory deemed trust claim arising out of a pension plan wind-up deficiency ranked in priority to debtor in possession (“DIP”) financing.

    There have been several recent developments with respect to this decision since the date of that publication.

    Filed under:
    Canada, Ontario, Banking, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Gowling WLG, Debtor in possession, Court of Appeal for Ontario
    Authors:
    Jeffrey Oliver
    Location:
    Canada
    Firm:
    Gowling WLG
    Protecting creditors and the public interest: Ontario Court of Appeal modifies the ‎corporate attribution doctrine
    2022-04-01

    In its unanimous decision, Ernst & Young Inc. v. Aquino, the Ontario Court of Appeal modified the common law doctrine of corporate attribution in the bankruptcy and insolvency context to uphold a decision of Ontario Superior Court’s Commercial List, which ordered a corporate officer and his associates, whom collectively orchestrated a fraudulent invoicing scheme, to repay over $30 million to company creditors pursuant to s. 96 of the Bankruptcy and Insolvency Act (“BIA”).

    Background

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, DLA Piper
    Authors:
    Jerritt R. Pawlyk
    Location:
    Canada
    Firm:
    DLA Piper
    Perfection of security interests when assets move jurisdictions
    2017-05-17

    When a financing statement is registered to perfect a security interest in collateral, it is the responsibility of the secured party to monitor the registration to ensure that a new financing statement is filed if the goods move jurisdictions. A recent decision by the Ontario Superior Court of Justice1 emphasizes this point.

    Facts

    Filed under:
    Canada, Ontario, Banking, Insolvency & Restructuring, Litigation, DLA Piper, Bankruptcy, Debtor, Collateral (finance), Secured creditor, Personal Property Security Act 1990 (Canada), Ontario Superior Court of Justice
    Location:
    Canada
    Firm:
    DLA Piper

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