Restructuring & Insolvency

Arbitration Clauses Should be Respected, Most of the Time: Supreme Court of Canada Shifts Focus Away From Single Proceeding Model for Insolvencies in Rendering Arbitration Clause Inoperative

The SCC has provided a framework on when arbitration clauses should be rendered inoperative in order to promote efficiency in an insolvency proceeding.

Single Proceeding Model Trumps Contractual Rights – Arbitration Clause Held “Inoperative” in Insolvency Proceeding

Ontario's highest court has held that an arbitration clause may be unenforceable in an appropriate insolvency proceeding, introducing contractual uncertainty.

ONCA: How to Calculate Reasonable Notice After a Court-Approved Plan Under the CCAA

An Ontario court has clarified the basis on which reasonable notice should be calculated following a court-approved plan of arrangement under the CCAA.

Reverse Vesting Orders – When Is This “Extraordinary Measure” Appropriate?

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.

Fiduciary Duties in Corporate Transactions: Expansion of Director’s Duties to Limited Partnerships & Liability of Knowing (Third Party) Assistants

The ONCA decision in Extreme Venture Partners Fund I LP v. Varma provides important guidance on acceptable standards of corporate conduct in Canada.

SCC Rules No Absolute Bar on Pre-post Compensation (setoff), Overrules kitco and Provides Roadmap for Possible Pre-post Setoff in CCAA Cases

The Supreme Court's decision in Montréal v. Deloitte establishes a test for pre-post compensation (set-off)

Will a Billion Dollar Termination Shift the M&A Landscape?

The authors discuss the Ontario Superior Court of Justice's decision in Cineplex v. Cineworld, a "busted deal" case about interim operating covenants.

Supreme Court of Canada Confirms: CCAA Super-Priority Charges Rank Ahead of CRA’s Deemed Trusts

Canada v. Canada North Group Inc. provided much needed clarity regarding the order of priority for unremitted source deductions in restructuring proceedings.

BILL 96 – Top 10 Impacts of the Revised Charter of the French Language on your Business and When to Expect Implementation of Such Revisions

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.

Reverse Vesting Orders – A Powerful Tool for Maximizing Recovery in Complex Insolvencies

How reverse vesting orders (RVOs) offer another tool for realizing value for stakeholders in Companies' Creditors Arrangement Act (CCAA) proceedings.

Commercial Leases During the COVID-19 Lockdown: Where are we Headed?

Ontario has also passed legislation to protect commercial tenants.

End of the Bellatrix GasEDI Saga Marks Beginning of Market Fallout

The Alberta Court of Appeal's dismissal of Bellatrix's appeal leaves substantial uncertainty for natural gas market and all derivatives counterparties.

Commercial Landlord and Tenant Insolvencies: The Need to Know for Sub-tenants

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

Supreme Court of Canada confirms: hypothecary notices in Québec receiverships are here to stay.

iAnthus Decision Changes the Landscape for Corporate Plans of Arrangement under the BCBCA by Permitting Third-Party Releases

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.

Best Practices for Commercial Landlords Facing Tenant Insolvencies

Many commercial landlords are increasingly alarmed that COVID-19 may cause a surge in tenant bankruptcies or restructurings.

A Win for Landlords: Letters of Credit and the Autonomy Principle

Five takeaways from 7636156 Canada Inc. (Re), 2020 ONCA 681.

You should have said something: Supreme Court of Canada Holds That Failure to Correct a Mistaken Belief Violated the Duty of Honest Contractual Performance

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.

‘But to What Effect?’ The Supreme Court of Canada Clarifies the Anti-deprivation Rule in Chandos

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

Confidentiality Considerations When Choosing a Jurisdiction of Incorporation in Canada

The Splintering of Canadian Insolvency Law: Quebec Court of Appeal Confirms Expiry of Provincial Notice Periods are a Pre-Condition to Appointment of a BIA Receiver

The Quebec court of appeal's ruling in Séquestre de Media5 Corporation has profound implications for the enforcement of secured creditor remedies in Quebec.

Alberta’s New Liability Management Framework: A Teaser of What’s Coming

Government of Alberta announces changes to the regulatory regime that governs oil and gas liabilities.

Construction Trusts Can Apply to Funds Received by CCAA Monitor: the Court of Appeal’s Decision in Urbancorp

There is good news from the Ontario Court of Appeal for contractors dealing with insolvent owners

Material Adverse Effect Clauses in a COVID-19 World

Review and analysis of recent developments where parties try to rely on MAE clauses as a mechanism to avoid closing a transaction.

Construction through COVID-19 in Canada: A Guideline for what each Province and Territory is Doing

How each Province is managing the impact of COVID-19 by restricting construction activities, suspending litigation time periods and recommending H&S practices

Has COVID-19 Lit the Fuse on Insolvencies in the Canadian Cannabis Industry?

We look at the recent market analysis of the Canadian cannabis industry and challenges in cannabis restructuring.

Project Management Amid COVID-19 – The Triage

Best practices for construction project management during the COVID-19 pandemic, and other force majeure circumstances.

The Impact of COVID-19 on the Construction Industry: A Reference Guide to the Changed Landscape

Contractual clauses, Permits & Inspections, Health & Safety, Labour, Litigation, Arbitration & Court Procedures,
Limitation Periods, Liens & Holdbacks

Asking Lenders for Time to Deal with COVID-19 Problems

Guide for borrowers to discussing loan defaults and additional credit support with lenders.

Opportunities in Challenging Times: The Failing Firm Provision of Canada’s Competition Act

This bulletin analyzes the failing firm merger provision of Canada's Competition Act in anticipation of the negative economic impact of COVID-19.

Supreme Court of Canada Grants Leave to Appeal in “Canada North” CCAA Priming Charges vs. Payroll Deductions Case

Canada North, CCAA, payroll deductions, deemed trust, priority, Companies' Creditors Arrangement Act, Supreme
Court of Canada

Unbearable Lite-ness: Lenders’ Remedies in the Age of Missing Covenants

The author discusses the recent trend toward borrower-friendly loan documents and the remedies available to lenders in Canada.

Where the Restructuring Meets the Road: the Intersection Between Insolvency Proceedings and Construction Law

COVID-19 will strain the construction industry. This bulletin explores how insolvency and restructuring concepts interact with construction law.

Coronavirus: Harbinger of a New (Old) Approach to Restructuring in Canada?

Restructuring options and challenges in the time of COVID-19.

Coronavirus – A Preparedness and Response Guide for Canadian Businesses

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

Lost in Transition - Working through the Silence Surrounding Leasehold Interests in the Construction Act's Transition Provisions

Challenges and Opportunities for Canadian Investors in Brazilian Insolvency Proceedings: Lessons from the IBA’s 2019 Global Restructuring Conference

The authors discuss unique aspects of Brazil's insolvency regime relevant for Canadian investors, including the role of equity, DIP loans, and jurisdiction.

Amendments to the CCAA, BIA and CBCA Now in Force

Authors discuss changes in 2019 to Canadian corporate and restructuring statutes and their possible implications for insolvency practice in Canada

Alberta Court of Appeal Ranks CCAA Super-priority Charges Ahead of CRA’s Deemed Trust, but Uncertainty Remains

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 Counsels Engagement with Creditor before Ruling on Proofs of Claim

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.

Supreme Court of Canada Denies Leave to Appeal in “Virginia Hills” Linear Property Tax Case: Northern Sunrise County, et al. v. Bank of Nova Scotia, et al., 2019 SCC 38587

The Supreme Court has confirmed that the Alberta Municipal Government Act does not grant a municipality a special lien for unpaid linear property taxes.

Canadian Corporate & Restructuring Legislation: Changes Could be on the Way

Bill C-97 (the “Bill”) was introduced in Parliament to implement the federal budget tabled by the Liberal government on March 19, 2019.

Alberta Court of Appeal Dismisses Property Tax Appeal: Municipalities are Not Secured Creditors for Taxes Assessed on Pipelines, Wells and Other Linear Property

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: Orphan Wells Association v Grant Thornton Ltd.