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Partner | Restructuring & Insolvency
CORPORATE RESTRUCTURING & INSOLVENCY
McMillan LLP is one of Canada’s leading corporate insolvency and restructuring law firms. We have an outstanding track-record of achieving successful outcomes for our clients in a broad range of financially challenging situations. Our highly skilled team includes top ranked lawyers known for their expertise and creative problem-solving, allowing McMillan to deliver the highest standards of transactional and structuring leadership and commercial advocacy. We have an earned reputation as thought-leaders in the industry.
We regularly work with financially challenged companies, boards of directors, Canadian and US financial institutions, lending syndicates, bondholders, investors, ad hoc and official creditors’ committees, court-appointed officers and major customers and suppliers of insolvent companies to deliver comprehensive solutions to the most challenging problems. We pride ourselves on working with clients to lead consensus around creative and practical solutions, while remaining strong advocates for their interests.
A focus on client needs is the foundation of the restructuring group’s service model. Client goals drive how we build the right legal team and leverage our own expertise and that of McMillan’s industry-focused specialists. Our restructuring and insolvency lawyers have led restructurings and distress M&A transactions in the mining, oil and gas, newspaper, paper, packaging products, forestry, consumer products, automotive, manufacturing, real estate, cannabis, advertising and media, biomedical, patent, and trademark and other intellectual property industries.
In the global economy, businesses and corporate groups often span multiple countries and have capital providers, customers, suppliers and other stakeholders with businesses outside of their home jurisdiction. When a business that operates across borders becomes insolvent, the multijurisdictional nature of its business can add unexpected layers of legal and regulatory complexity. McMillan LLP’s restructuring and insolvency team specializes in facilitating corporate cross-border restructuring transactions and proceedings for a variety of stakeholders, with expertise in developing and executing creative and practical cross-border bankruptcy and restructuring strategies and solutions. The breadth of McMillan’s cross-border expertise in other specialized areas of business law, such as tax, public markets, private and public debt financing, and derivatives, offers our clients the comprehensive legal advice critical to optimal cross-border structuring.
McMillan’s corporate restructuring professionals work with clients to structure joint and parallel insolvency filings involving Canada and other countries and coordinate Canadian proceedings with US Chapter 11 and Chapter 15 cases. We frequently collaborate with international law firms in cross-border insolvency cases, leveraging our excellent relationships with bankruptcy and insolvency practitioners in the US and other jurisdictions. We have advised on Canadian and cross-border deal structures, sales processes, negotiation of sale terms and procuring court approval orders for distressed M&A transactions, recapitalization and refinancing transactions, including structure and documentation for existing and distressed debt facilities, and represented US creditors’ committees in Canadian proceedings.
CHALLENGED COMPANIES & DEBTOR MANDATES
Whatever the source of financial difficulty, enterprises require unbiased assistance from a restructuring law firm that understands the complicated landscape of legal options, risks, strategies and challenges facing a company in distress. McMillan’s restructuring and insolvency lawyers have experience representing and advising companies and boards of directors at all stages of restructuring, both in the boardroom and the courts. We know how to lead restructurings and develop and implement creative and pragmatic solutions tailored to our client’s most pressing needs. Our lawyers work closely with other restructuring professionals, stakeholders and investors, including financial advisors, investment bankers, equity and other fund managers, and in-house and foreign counsel, to deliver a seamless and coordinated approach to a company’s restructuring.
McMillan LLP works regularly with financially challenged companies, boards of directors, Canadian and US financial institutions, lending syndicates, bondholders, investors, ad hoc and official creditors’ committees, court-appointed officers and major customers and suppliers of insolvent companies. We advise on the formulation, approval and implementation of restructuring plans and arrangements, negotiate with key stakeholders and stakeholder groups, execute restructuring and downsizing initiatives to address troubled debt, and advise on asset sales effected through a restructuring proceeding.
The SCC has provided a framework on when arbitration clauses should be rendered inoperative in order to promote efficiency in an insolvency proceeding.
Ontario's highest court has held that an arbitration clause may be unenforceable in an appropriate insolvency proceeding, introducing contractual uncertainty.
An Ontario court has clarified the basis on which reasonable notice should be calculated following a court-approved plan of arrangement under the CCAA.
A review of the recent Ontario Superior Court of Justice decision in Harte Gold Inc. (Re) and its effect on reverse vesting orders in insolvency proceedings.
The ONCA decision in Extreme Venture Partners Fund I LP v. Varma provides important guidance on acceptable standards of corporate conduct in Canada.
The Supreme Court's decision in Montréal v. Deloitte establishes a test for pre-post compensation (set-off)
The authors discuss the Ontario Superior Court of Justice's decision in Cineplex v. Cineworld, a "busted deal" case about interim operating covenants.
Canada v. Canada North Group Inc. provided much needed clarity regarding the order of priority for unremitted source deductions in restructuring proceedings.
Changes to Québec’s language laws are coming. Here is a top ten list of potential impacts, and the likely timeline and process for adoption.
How reverse vesting orders (RVOs) offer another tool for realizing value for stakeholders in Companies' Creditors Arrangement Act (CCAA) proceedings.
Ontario has also passed legislation to protect commercial tenants.
The Alberta Court of Appeal's dismissal of Bellatrix's appeal leaves substantial uncertainty for natural gas market and all derivatives counterparties.
As the COVID-19 pandemic continues on, it is particularly important for sub-tenants and landlords to consider the ramifications of an insolvent head-tenant.
Supreme Court of Canada confirms: hypothecary notices in Québec receiverships are here to stay.
The iAnthus decision affirmed by the Court of Appeal holds that a British Columbia company can use the BCBCA to restructure and obtain 3rd party releases.
Many commercial landlords are increasingly alarmed that COVID-19 may cause a surge in tenant bankruptcies or restructurings.
Five takeaways from 7636156 Canada Inc. (Re), 2020 ONCA 681.
The authors discuss the Supreme Court of Canada's recent decision in C.M. Callow Inc. v. Tammy Zollinger et. al. regarding the duty of faith.
The authors discussion of the Supreme Court of Canada's decision in Chandos Construction affirming the anti-deprivation rule and consider its implications
Confidentiality Considerations When Choosing a Jurisdiction of Incorporation in Canada
The Quebec court of appeal's ruling in Séquestre de Media5 Corporation has profound implications for the enforcement of secured creditor remedies in Quebec.
Government of Alberta announces changes to the regulatory regime that governs oil and gas liabilities.
There is good news from the Ontario Court of Appeal for contractors dealing with insolvent owners
Review and analysis of recent developments where parties try to rely on MAE clauses as a mechanism to avoid closing a transaction.
How each Province is managing the impact of COVID-19 by restricting construction activities, suspending litigation time periods and recommending H&S practices
We look at the recent market analysis of the Canadian cannabis industry and challenges in cannabis restructuring.
Best practices for construction project management during the COVID-19 pandemic, and other force majeure circumstances.
Contractual clauses, Permits & Inspections, Health & Safety, Labour, Litigation, Arbitration & Court Procedures,
Limitation Periods, Liens & Holdbacks
Guide for borrowers to discussing loan defaults and additional credit support with lenders.
This bulletin analyzes the failing firm merger provision of Canada's Competition Act in anticipation of the negative economic impact of COVID-19.
Canada North, CCAA, payroll deductions, deemed trust, priority, Companies' Creditors Arrangement Act, Supreme
Court of Canada
The author discusses the recent trend toward borrower-friendly loan documents and the remedies available to lenders in Canada.
COVID-19 will strain the construction industry. This bulletin explores how insolvency and restructuring concepts interact with construction law.
Restructuring options and challenges in the time of COVID-19.
What steps should corporations take to mitigate the risks posed by COVID-19 to the health and safety of their workforce and contractual obligations.
Lost in Transition - Working through the Silence Surrounding Leasehold Interests in the Construction Act's Transition Provisions
The authors discuss unique aspects of Brazil's insolvency regime relevant for Canadian investors, including the role of equity, DIP loans, and jurisdiction.
Authors discuss changes in 2019 to Canadian corporate and restructuring statutes and their possible implications for insolvency practice in Canada
Alberta Court of Appeal held super-priority charges granted in a Companies' Creditor Arrangement Act proceeding may take priority over statutory deemed trusts claims advanced by the Crown
Court offers guidance on approach to an appeal from a notice of disallowance or determination of a claim by a trustee under section s. 135(4) of the BIA.
The Supreme Court has confirmed that the Alberta Municipal Government Act does not grant a municipality a special lien for unpaid linear property taxes.
Bill C-97 (the “Bill”) was introduced in Parliament to implement the federal budget tabled by the Liberal government on March 19, 2019.
The Alberta Court of Appeal has dismissed an appeal brought by three municipalities (the "Municipalities") seeking status as secured creditors entitled to special priority for payment of linear property taxes.
Environmental Obligations Cannot be Ignored Even in Bankruptcy
Supreme Court of Canada Allows Redwater Appeal: Regulator entitled to super-priority for abandonment and reclamation costs
The decision, released in July 2017, was overturned on November 8, 2018 by the Supreme Court of Canada, offering sought-after certainty for secured lenders.
Dept of Fin proposed amendments describing conditions for when taxable acquisitions imports of property or services by holding companies could make ITC claims
The B.C. Supreme Court recently confirmed that a strata council only needs a simple majority of owners to authorize the council to hire a realtor to solicit.
An update to our December 2017 article, where some of the most significant substantive changes to the Construction Lien Act (the "CLA") are considered.
McMillan is a proud sponsor of the 2018 Annual Review of Insolvency Law's 15th Conference presented by the Insolvency Institute of Canada in Vancouver BC taking place February 8 - 9.
Your Halloween Edition: The Ghost of the Terminated GST/HST Deemed Trust
Appeal Dismissed: Decision of the Alberta Court of Appeal in Re Redwater Confirms Paramountcy of BIA
The US Trust Indenture Act, Out of Court Restructurings and the Marblegate Decision
The Enforceability of Make-Whole Clauses in Bankruptcy
Broken Break Fee: Investor's Claim for a Break Fee Denied in CCAA Proceeding
Post Up: Creditor Ordered to Deposit Security for Costs in British Columbia Bankruptcy Proceeding
Redwater Appeal Creates Continued Uncertainty for Insolvent Oil and Gas Companies in Alberta
Update: Barafield Realty Ltd. v. Just Energy (B.C.) Limited Partnership
New Rules for Asset Sales by Insolvent Producers (at least for now)
Compromise with the Alberta Energy Regulator: Navigating a Receivership in Alberta's Oil Patch
The Supreme Court of Canada Confirmed Today the Paramountcy of the Bankruptcy and Insolvency Act over License Denial Regimes
Assigning Contracts in Canadian Insolvency Proceedings
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