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    Priority of unpaid fuel taxes
    2011-01-05

    In our last Financial Services Flash, we emphasized the issue that lenders need to be aware of specific restrictions that may apply to the liquidation of inventory over which they have security. This Flash considers the general notion that a lender needs to be cognizant of some unique and sometimes unexpected liabilities of the borrower which may take priority over such lender’s security. There are, of course, many ‘priority payables’ which are commonly known, whether they relate to unpaid wages, certain sales taxes, pension plan obligations, etc.

    Filed under:
    Canada, Insolvency & Restructuring, Shipping & Transport, Tax, Aird & Berlis LLP | Aird & McBurney LP, Wage, Bankruptcy, Debtor, Debt, Liability (financial accounting), Liquidation, Bank reserves, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Location:
    Canada
    Firm:
    Aird & Berlis LLP | Aird & McBurney LP
    Court declines to approve sale of assets as part of proposal proceedings
    2010-07-21

    In the recent decision of Justice Cumming In the Matter of the Proposal of Hypnotic Clubs Inc. (“Hypnotic” or the “Debtor”) the court dismissed a motion by the Debtor for a sale of its assets pursuant to s.65.13 of the Bankruptcy and Insolvency Act (“BIA”).

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Borden Ladner Gervais LLP, Bankruptcy, Debtor, Consideration, Good faith, Secured creditor, Market value, Unsecured creditor, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Authors:
    Roger Jaipargas
    Location:
    Canada
    Firm:
    Borden Ladner Gervais LLP
    Sally Creek: a cautionary tale for trustees in bankruptcy
    2010-08-16

    The recent Ontario Court of Appeal decision in Murphy v Sally Creek Environs Corporation, 2010 ONCA 312 (“Sally Creek”) is a cautionary tale for Trustees in bankruptcy (“Trustees”) and the counsel who represent them.1 In that case, the Trustee’s fees and those of its legal counsel were drastically reduced on a taxation, a cost award was made against the Trustee personally and the Trustee’s conduct was impugned in a detailed decision of the Bankruptcy Registrar and the Court of Appeal.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Bankruptcy, Costs in English law, Solicitor, Bankruptcy and Insolvency Act 1985 (Canada), Trustee, Court of Appeal for Ontario
    Authors:
    Craig A. Mills , Margaret R. Sims
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Fishing licence did not revest in discharged bankrupt
    2010-08-27

    Caines, Re, 2010 NLTD 72

    The bankrupt was the holder of a commercial fishing licence. He was discharged from his bankruptcy before the Supreme Court of Canada released its decision inRoyal Bank of Canada v. Saulnier (2008), 298 D.L.R. (4th) 193, in which that Court concluded that a fishing licence was “property” for purposes of the PPSA and BIA.

    Filed under:
    Canada, Insolvency & Restructuring, Litigation, Miller Thomson LLP, Bankruptcy, Royal Bank of Canada, Trustee, Supreme Court of Canada
    Authors:
    Jennifer Babe
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Canada Revenue Agency trumps unsecured creditors!
    2010-08-31

    In a sleight-of-hand move dexterously played by the Canada Revenue Agency ("CRA"), it managed to secure advance collection of a disputed corporate income tax debt by obtaining an ex parte jeopardy collection order after the CRA was notified of an application by the taxpayer to appoint a receiver.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Tax, WeirFoulds LLP, Bankruptcy, Debtor, Unsecured debt, Res judicata and issue estoppel, Debt, Ex parte, Capital punishment, Unsecured creditor, Canada Revenue Agency, Bankruptcy and Insolvency Act 1985 (Canada), Income-Tax Act 1961 (India), Trustee, Court of Appeal for Ontario, Federal Court (Canada)
    Authors:
    Maralynne A. Monteith
    Location:
    Canada
    Firm:
    WeirFoulds LLP
    Mind the gap: direction given for defaulting debtors in a BIA proposal
    2010-09-08

    formal proposal under the Bankruptcy and Insolvency Act (BIA) is a powerful alternative to bankruptcy. The benefits of a proposal for the debtor are clear: the debtor reduces its debt load and avoids bankruptcy. However, proposals are also beneficial to creditors since generally the creditor’s recovery in a proposal scenario is better than the potential recovery from a liquidation through a bankruptcy. In simple terms, upon the successful completion of a proposal, the debtor gets a “fresh start” and creditors recover more than they would in a bankruptcy.

    Filed under:
    Canada, Insolvency & Restructuring, Miller Thomson LLP, Bankruptcy, Debtor, Debt, Legal burden of proof, Liquidation, Default (law), Default (finance), Bankruptcy discharge, Constitutional amendment, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Authors:
    Craig A. Mills , Margaret R. Sims
    Location:
    Canada
    Firm:
    Miller Thomson LLP
    Limitations in use of purchase-money security interest in cross-collateralization
    2010-06-29

    A recent decision of the Alberta Queen’s Bench1 has raised some questions about purchase-money security interest (“PMSI”) proceeds and cross-collateralization of assets secured by these types of security interests. It has been suggested that this decision is unique and establishes that using a PMSI as collateral for other indebtedness of the debtor is dangerous. But is this decision really so radical?

    Facts:

    Filed under:
    Canada, Alberta, Asset Finance, Insolvency & Restructuring, Litigation, DLA Piper, Debtor, Collateral (finance), Waiver, Debt, Secured creditor, Royal Bank of Canada, KPMG, Personal Property Security Act 1990 (Canada), Trustee
    Authors:
    M. Sandra Appel
    Location:
    Canada
    Firm:
    DLA Piper
    Reorganization proceedings continued notwithstanding allegations of conflict
    2010-02-25

    In a recent decision of the Ontario Superior Court of Justice, Re Smurfit-Stone Container Canada Inc., Justice Pepall examined the conflicting interests that arise where companies within a group of restructuring companies have made intercompany loans to one another, and where the board of directors mirror each other in each subsidiary.

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Dentons, Conflict of interest, Bankruptcy, Debtor, Unsecured debt, Board of directors, Interest, Prejudice, Subsidiary, Companies' Creditors Arrangement Act 1933 (Canada), Trustee, Ontario Superior Court of Justice
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    Court compels examination under BIA notwithstanding self-incrimination objection
    2010-03-31

    In Rieger Printing Ink Co, 2009 WL 477541 (Ont S.C.J. [Commercial]), the Ontario Superior Court of Justice dealt with a party's right to protection against selfincrimination in relation to an examination held under section 163 of the Bankruptcy and Insolvency Act, R.S.C., 1985 c. B-3 ("BIA").

    Filed under:
    Canada, Ontario, Insolvency & Restructuring, Litigation, Dentons, Bankruptcy, Discovery, Legal burden of proof, Freedom of speech, Bankruptcy and Insolvency Act 1985 (Canada), Canadian Charter of Rights and Freedoms, Trustee, Chief financial officer, Supreme Court of Canada, Ontario Superior Court of Justice
    Authors:
    David W. Mann , David LeGeyt
    Location:
    Canada
    Firm:
    Dentons
    Bankruptcy law update: 30 Day Good rights strengthened
    2010-02-25

    Significant insolvency law amendments were declared in force as of September 18, 2009 (the “Amendments”). The Amendments were contained in Bill C-55 which received Royal Assent on November 25, 2005 and in Bill C-12 which received Royal assent on December 14, 2007, but the Amendments were not proclaimed into force until September 18, 2009.

    Filed under:
    Canada, Insolvency & Restructuring, Miller Thomson LLP, Bankruptcy, Credit (finance), Supply chain, Bankruptcy and Insolvency Act 1985 (Canada), Trustee
    Authors:
    Craig A. Mills , Margaret R. Sims
    Location:
    Canada
    Firm:
    Miller Thomson LLP

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