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    Death and bankruptcy: escaping one but not the other
    2011-03-25

    May a deceased person who dies in bankruptcy having failed to complete his duties under the Bankruptcy and Insolvency Act be discharged from bankruptcy?

    This was the question that the British Columbia Supreme Court wrestled with earlier this year in a reported decision that began by noting that there was no jurisdiction on point.

    Filed under:
    Canada, British Columbia, Insolvency & Restructuring, Legal Practice, Litigation, Cassels Brock & Blackwell LLP, Bankruptcy, Consideration, Bankruptcy discharge, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, British Columbia Supreme Court
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Section 38 BIA claims – it’s what you know that counts
    2011-03-25

    Pursuant to section 38 of theBankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”) a creditor of the bankrupt estate can obtain the trustee’s right to pursue estate litigation where the trustee refuses or fails to pursue such litigation. In a recent Ontario case, Indcondo Building Corp. v. Sloan [2010], CarswellOnt 9785, the Court of Appeal was asked to determine whether the limitation period for the assigned litigation commences with the trustee’s knowledge of the facts giving rise to the claim or the assignee’s knowledge of those facts.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Cassels Brock & Blackwell LLP, Bankruptcy, Statute of limitations, Discovery, Option (finance), Conveyancing, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, Court of Appeal of England & Wales
    Authors:
    Larry Ellis
    Location:
    Canada
    Firm:
    Cassels Brock & Blackwell LLP
    Credifinance Securities Limited v DSLC Capital Corp
    2011-03-30

    2011 ONCA 160 (Released March 2, 2011)

    Trustee – Constructive Trust – Fraud – Bankruptcy

    In this case, the Court of Appeal for Ontario explained the conditions under which a constructive trust remedy can be granted in favour of defrauded creditors after the fraudster enters into bankruptcy proceedings.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, WeirFoulds LLP, Bankruptcy, Security (finance), Fraud, Constructive trust, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, Court of Appeal of England & Wales
    Authors:
    Faren H. Bogach
    Location:
    Canada
    Firm:
    WeirFoulds LLP
    Appeals from disallowances of claims by trustees: true appeals or hearings de novo?
    2011-03-14

    One of the duties of a trustee is to examine each claim presented by a potential creditor of the
    bankrupt and to determine whether such a claim is valid. A trustee is entitled, under
    subsection 135(2) of the BIA, to disallow any claim, priority or security that it finds unproven or
    invalid. In the event that a creditor’s claim is disallowed by a trustee, that creditor is entitled to appeal that decision to the superior court in the province. A creditor has 30 days after the
    receipt of the trustee’s reasons for disallowance to file an appeal, although an extension may be

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Discovery, Standard of review, Admissible evidence, Trustee
    Location:
    Canada
    Firm:
    Dentons
    Section 38 claims
    2011-03-14

    Section 38 provides a mechanism by which a creditor can take the place of the trustee in any proceeding where the trustee refuses or fails to act. Essentially, the creditor stands in the place of the trustee and, if successful in the proceeding, is entitled to keep all proceeds, except those that exceed the total of the creditor’s claim and the creditor’s costs of the proceeding. Any surplus proceeds received by the creditor are the property of the bankrupt’s estate.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Costs in English law, Debtor, Interest, Prima facie, Trustee
    Location:
    Canada
    Firm:
    Dentons
    Interpretation of leases in the ordinary course of business of the lessor
    2011-02-02

    Perimeter Transportation Ltd. (Re), 2010 BCCA 509, on appeal from 2009 BCSC 1458

    Filed under:
    Canada, Asset Finance, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Bankruptcy, Debtor, General Electric, Trustee, British Columbia Court of Appeal
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Exempting a bulk sale during the NOI to file a BIA proposal
    2011-02-02

    Outdoor Broadcast Networks Inc (Re), 2010 ONSC 5647

    The debtor had filed a notice of intention to make a proposal (“NOI”) to its creditors under the BIA. It was proposing to immediately sell certain assets in Ontario and BC to help it fund its proposal. As the proposal had not yet been made, the debtor was the one selling assets out of the ordinary course, and the sale was subject to the Ontario Bulk Sales Act. That Act does not apply to sales by bankruptcy trustees, receivers, sheriffs, or other liquidators for the benefit of creditors.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Bankruptcy, Debtor, Computer network, Vesting, Liquidator (law), Trustee
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Sally Creek: a question of integrity or liability for trustees in bankruptcy
    2011-03-02

    The 2010 decision of the Ontario Court of Appeal in Murphy v. Sally Creek Environs Corp. (Trustee of) considered the role of a trustee in bankruptcy as an officer of the court and its obligation to act fairly and with integrity throughout bankruptcy proceedings.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Aird & Berlis LLP | Aird & McBurney LP, Bankruptcy, Misconduct, Solicitor, Attorney's fee, Unsecured creditor, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, Court of Appeal for Ontario
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Claiming legal costs in an insolvency proceeding
    2011-03-14

    Recovery of legal costs in insolvency proceedings can be a difficult procedure, as the ability of counsel to claim costs depends on the work performed, the timing of the work, and for whom the work was done.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Costs in English law, Debtor, Ex parte, Court costs, Attorney's fee, Unsecured creditor, Trustee
    Location:
    Canada
    Firm:
    Dentons
    Ethical issues in bankruptcy and insolvency
    2011-03-14
    1. Ex ParteOrders

    There are a number of ethical issues facing lawyers today in bankruptcy and insolvency litigation. One of the main issues is the level of disclosure in ex parte applications, such as those for a stay of proceedings in order to file a proposal under the BIA or a plan under theCCAA.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Dentons, Confidentiality, Bankruptcy, Shareholder, Waiver, Interest, Discovery, Solicitor, Ex parte, Trustee
    Location:
    Canada
    Firm:
    Dentons

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