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    Express trust v. secured creditor of the trustee
    2009-10-20

    Brookfield Bridge Lending Fund Inc. v. Karl Oil and Gas Ltd., 2009 ABCA 99, 5 Alta. L.R. (5th) 1; on appeal from 2008 ABQB 444, 96 Alta. L.R. (4th) 329.

    Vanquish Oil and Gas Corp. (“Vanquish”) operated certain oil wells. Under the 1990 Canadian Association of Petroleum Landman Operating Procedure under which Vanquish operated these wells, Vanquish was to receive well revenues in trust, it could commingle revenues with its other monies, and was to pay the revenues “only to their intended use”.

    Filed under:
    Canada, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Breach of contract, Beneficiary, Secured creditor, Constructive trust, Trustee, Court of Appeal of Alberta
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Bankruptcy and insolvency law amendments declared in force
    2009-10-20

    Insolvency law amendments were declared in force as of September 18, 2009 (the “Amendments”). The Amendments were contained in bills which received Royal assent on November 25, 2005 and on December 14, 2007, but the Amendments were not proclaimed into force until now.

    Filed under:
    Canada, Insolvency & Restructuring, Miller Thomson LLP, Wage, Bankruptcy, Debtor, Fair market value, Secured creditor, Prejudice, UNCITRAL, Title 11 of the US Code, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Eric Sherkin
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    WEPPA priority for “wages”
    2009-10-20

    Re Ted LeRoy Trucking Ltd. and 383838 B.C. Ltd. (2009), 52 C.B.R. (5th) 225, 2009 BCSC 41 (B.C.S.C.)

    Ted LeRoy Trucking Ltd. obtained protection under the CCAA and PriceWaterhouseCooper was its monitor. The debtor tried to restructure and failed, and was assigned into bankruptcy with PriceWaterhouseCooper as its trustee.

    Filed under:
    Canada, Employment & Labor, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Wage, Bankruptcy, Debtor, Trade union, Liability (financial accounting), Secured creditor, Welfare, Trustee
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Is it time to stop all this intermingling?
    2009-09-17

    The Alberta Court of Appeal recently ruled on a case1 dealing with the priority of claims to the bank accounts of a petroleum operator which had gone into receivership, where the operatorship was governed by the 1990 CAPL Operating Procedure. The operator had failed to pay to the non-operators revenues of approximately $300,000, having only $58,000 left in the commingled account. The Operating Procedure imposes a trust on the production revenues but also expressly allows intermingling of these funds with the operator's general funds.

    Filed under:
    Canada, Alberta, Banking, Insolvency & Restructuring, Litigation, Gowling WLG, Breach of contract, Fiduciary, Legal burden of proof, Dissenting opinion, Secured creditor, Constructive trust, Court of Appeal of England & Wales, Court of Appeal of Alberta
    Authors:
    Jeff W. Bright
    Location:
    Canada
    Firm:
    Gowling WLG
    Limited partnerships and the CCAA
    2009-07-27

    In theMatter of Forest and Marine Financial Corporation (2009) BCCA 319, the British Columbia Court of Appeal was called upon to consider whether a limited partnership qualifies for protection under the Companies Creditors’ Arrangement Act (“CCAA”). The Court also considered whether, in the circumstances of the case, a stay of proceedings should have been issued with respect to the limited partnership.

    Filed under:
    Canada, British Columbia, Company & Commercial, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Debtor, Debt, Limited partnership, Refinancing, Secured creditor, Court of Appeal of England & Wales
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Traps for the unwary – secured creditor obligations under the Wage Earner Protection Program
    2009-07-23

    As we warned in our earlier articles, “Wage Earner Protection Program Act Comes Into Force - Secured Creditors Be Wary” and “Extension of the WEPPA – Further Protection for Employees”, the Wage Earner Protection Program Act (the “WEPPA”) took eff

    Filed under:
    Canada, Employee Benefits & Pensions, Insolvency & Restructuring, Cassels Brock & Blackwell LLP, Wage, Bankruptcy, Debtor, Accounts receivable, Accounting, Personal property, Secured creditor, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    Harvey Garman
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    No DIPping allowed
    2009-07-23

    Over the last few years, debtor-in-possession (DIP) loans have become a fixture in Canadian insolvency proceedings. Initially, in Companies’ Creditors Arrangement Act (CCAA) proceedings, courts used inherent jurisdiction to authorize DIP facilities because the statute did not expressly permit them. (Pending legislative changes will put explicit DIP provisions in the CCAA and the Bankruptcy and Insolvency Act (BIA).)

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Bankruptcy, Debtor, Collateral (finance), Mortgage loan, Liquidation, Refinancing, Secured creditor, Prejudice, Bankruptcy and Insolvency Act 1985 (Canada)
    Authors:
    John N. Birch
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Holiday cheer - Alberta court grants rare extension to unpaid supplier
    2009-06-29

    Unpaid suppliers are generally unsecured in liquidation proceedings. A supplier can elevate its unsecured claim by taking security from the debtor or modifying its supply contract by inserting an effective title retention clause. The supplier may also rely on the BIA unpaid supplier provision to assert a super-priority for the return of its goods.

    Filed under:
    Canada, Alberta, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Bankruptcy, Debtor, Unsecured debt, Liquidation, Secured creditor, Goldman Sachs
    Authors:
    Harvey Garman
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    "Hardship" fund for CCAA creditors
    2009-05-21

    The Alberta Court of Queen's Bench recently permitted a debtor to establish a "hardship" fund to pay obligations incurred prior to the debtor's CCAA filing to local suppliers operating in the debtor’s community.

    Filed under:
    Canada, Alberta, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Bankruptcy, Debtor, Renewable energy, Accounts receivable, Supply chain, Wind power, Wind farm, Secured creditor
    Authors:
    Alex Tarantino
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Trust claims under a JOA
    2009-05-29

    Vanquish Oil & Gas (“Vanquish”), now in receivership, was a trustee under a joint operating agreement for an oil well. It was required to remit 45% of the well’s net production proceeds to a proportional owner - either Karl Oil and Gas Ltd. or Choice Resources Corporation (who disputed the entitlement at the time).

    Filed under:
    Canada, Alberta, Energy & Natural Resources, Insolvency & Restructuring, Litigation, Dentons, Beneficiary, Fossil fuel, Good faith, Secured creditor, Constructive trust, Trustee, Court of Appeal of Alberta
    Authors:
    David LeGeyt , David W. Mann
    Location:
    Canada
    Firm:
    Dentons

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