Preserving Intellectual Property Rights in Licenses: Changes to the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act
As we reported last week, on November 1, 2019, amendments to both the Bankruptcy and Insolvency Act (the “BIA”)[1] and the Companies’ Creditors Arrangement Act (the “CCAA”)[2] came into force that, amongst other things, address the rights of intellectual property […]
Bill C-47: Amending the criminal interest rate in Canada
On April 20, 2023, following a consultation in 2022, the Government of Canada tabled Bill C-47, the Budget Implementation Act (the “Bill”). The Bill includes, amongst many other things, amendments to the criminal interest rate provision under section 347 of […]
Enhanced superpriority for farmers – Lenders beware
Lenders beware, Canada is one step closer to establishing a framework that will provide significant enhanced protections for suppliers of perishable food items. Bill C-280, or the Financial Protection for Fresh Fruit and Vegetable Farmers Act (the “Act”), has passed […]
Bill C-228 and defined benefit pension plans
The Canadian Parliament has enacted significant changes to federal insolvency legislation, elevating the priority that must be provided to fund the deficit of a defined benefit pension plan when distributing debtor assets. Bill C-228, the Pension Protection Act (the “Act”), […]
Insurance protection for secured lenders
Insurance certificates often provide that a debtor’s secured lenders are an “additional insured” and/or a “loss payee” on the debtor’s insurance policies without the statement that the lender is a “mortgagee” with a “standard mortgage clause.” These key words need […]
A sigh of relief for agents in syndicated financings
Agents in syndicated loan transactions have received some much needed relief in respect of potential erroneous payments made by them to the lenders in their syndicate. Erroneous payments provisions became commonplace in many credit agreements in 2021 as a by-product […]
Overview: OSFI’s draft guideline B-15 on climate risk management
On May 26, 2022, following consultation with key industry stakeholders, the Office of the Superintendent of Financial Institutions (“OSFI”) issued draft Guideline B-15: Climate Risk Management (the “Draft Guideline”).[1] The Draft Guideline represents OSFI’s response to the risks posed by […]
RegTech: How technology can revolutionize compliance
Highly regulated industries, such as the financial services industry, have faced ever increasing regulatory compliance obligations. Technology, such as artificial intelligence (AI), that can be utilized to innovate the manner in which these organizations operate can lead to additional challenges […]
Expansion of s. 38 of the BIA assignment of claims
Historically, an assignment of claims pursuant to s. 38 of Bankruptcy and Insolvency Act (the “BIA”)[1] has only been used in the context of an assignment in bankruptcy. For instance, the use of s. 38 of the BIA in the […]
The scope of non-debtor third party releases between the U.S. and Canada: A distinction with a difference
Introduction The chapter 11 proceedings of Purdue Pharma (“Purdue”), the pharmaceutical giant responsible for the manufacturing of the powerful narcotic painkiller OxyContin, have been closely followed by insolvency practitioners around the globe, as well as policy makers and members of […]
The Highly Affected Sectors Credit Availability Program (HASCAP): A further COVID-19 relief measure for businesses
As the COVID-19 pandemic continues to take a toll on the Canadian economy, many continue to need additional financial relief to help them survive the negative impact of the pandemic on their business and their corresponding cash flow. By now […]
Lenders take note: Exercising discretion in good faith affirmed by the Supreme Court of Canada
On February 5, 2021, the Supreme Court of Canada released its decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District[1] (“Wastech v. Metro”), where it clarified the duty of contracting parties to exercise discretion in good faith. […]
Should the conditional sale vendor or lessor include the electric vehicle charging unit in the deal?
Learn about the recent recognitions received by our Financial Services and Restructuring Group lawyers. Vehicles need fuel to operate. Until recently the fuel was usually a petroleum product. Conditional sale vendors and lessors of vehicles do not finance equipment to […]
Bill 96: Something new or déjà vu?
On May 13, 2021, Bill 96: An Act Respecting French, The Official and Common Language of Québec (the “Bill”) was tabled by the Québec government. This Bill aims to provide for stricter protections of the French language within the Charter […]
Lessons for lenders: Personal knowledge and addressing the evidentiary burden remains key
Introduction It is common for a special loans officer of a secured lender to swear an Affidavit on behalf of their financing institution in connection with enforcement proceedings. However, a recent Master’s decision, Meridian OneCap Credit Corp v Nikos Directional […]
( Available in French only )
Les délais dans un dossier de faillite : en conformité ou pas avec le droit civil?
Les délais sont d’une importance primordiale dans le cadre de procédures judiciaires. Le défaut de les respecter peut impliquer le rejet d’une action. Dans l’affaire 9190-0753 Québec Inc. (Syndic de), 2016 QCCS 1983 (29-04-2016), le juge Stephen W. Hamilton a […]
Guarantor’s payment of legal fees incurred by a lender to sue a borrower
The following is a summary of a judgment concerning the Bank’s right to be reimbursed for legal fees it incurred to sue and obtain a judgment against a surety (hereinafter called “the Guarantor”). Facts The facts of the case can […]
Decentralized finance: Regulation, growth, and legal enforcement
Decentralized finance (“DeFi”) is a financial alternative offered through various cryptocurrency platforms where liquidity pools are available to investors without the need for third-party lending institutions. In the years to come, the nascent DeFi industry may shape, transform and even […]
Lenders beware: Control, opposability and priority of security on cash in Quebec
On December 2, 2020, the Quebec Court of Appeal (the “Court”), for reasons drafted by the Honourable Robert M. Mainville, J.A., rendered its first judgment (the “Judgment”) on the application of Article 2713.3 of the Civil Code of Québec (the […]
The anti-deprivation rule is alive and well: Chandos Construction v Deloitte Restructuring
In its most recent decision, Chandos Construction Ltd v Deloitte Restructuring Inc.[1], the Supreme Court of Canada (the “SCC”) reaffirmed the existence of the common law anti-deprivation rule in Canada. The anti-deprivation rule provides that a contractual provision is void […]
Business interruption insurance and COVID-19: A discussion of future implications
In response to ongoing financial distress caused by COVID-19, many businesses have tried to make claims under their business interruption policies. It remains uncertain whether business interruption losses directly or indirectly caused by the pandemic, such as losses stemming from […]
Asset tracing and corporate intelligence techniques in cryptocurrency investigations
In the first half of 2018, $1.1 billion USD in cryptocurrency was stolen or trafficked online, with the majority of attacks targeting either regular businesses or cryptocurrency exchanges.[1] By 2019, that figure had jumped to $4.4 billion.[2] Despite these staggering […]
Lifting the stay
On July 27, 2020, the Newfoundland and Labrador Supreme Court (the “Court”) released its decision in Great North Data Ltd., (Re),[1] where Justice Handrigan outlined principles for courts to consider when exercising their power under section 69.4 of the Bankruptcy […]
Beware: Recommencement of limitations periods and procedural timelines in Ontario on September 14, 2020
Please beware that on August 20, 2020, the Ontario government (the “Government”) issued a news release providing that the order pertaining to the suspensions of limitations period made under the Emergency Management and Civil Protections Act, R.S.O. 1990, c. E.9 […]
Redemption in a receivership
A recent decision of the Ontario Superior Court of Justice (Commercial List) (the “Court”) in the receivership proceedings of The Clover on Yonge Inc.[1] (the “Clover Project”) has addressed the question of whether a debtor in receivership can avoid a […]
Protection for tenants/borrowers
The Ontario government enacted the Protecting Small Business Act, 2020 (the “PSBA”), effective June 18, 2020, which amended Ontario’s Commercial Tenancies Act (“CTA”) and created greater incentive for commercial landlords to participate in the Canada Emergency Commercial Rent Assistance (“CECRA”) […]
Bellatrix Exploration: Why a charge sometimes just isn’t enough
A recent decision in the Companies’ Creditors Arrangement Act (“CCAA”) proceedings of Bellatrix Exploration Ltd.[1] (“Bellatrix”) serves as a useful reminder to professionals that a court-ordered charge may not be enough to ensure their fees will be paid at the […]
Lender ‘know your client’ diligence—compliance with Canadian sanctions laws
In light of the continuing globalization of trade and international cross border financing arrangements, it is critical to determine if a transaction is prohibited by sanctions laws. Under Canadian and international law, there are a variety of sanctions laws that […]
Ontario Court of Appeal confirms the priority of secured construction lenders’ subsequent advances in face of execution creditors’ notice of writ
Some more good news for secured construction lenders. In a decision rendered April 9, 2020, the Ontario Court of Appeal has confirmed that the priority of subsequent advances by lenders holding a charge of real property will not be defeated […]
COVID-19 Financial Services Update: Pre-packaged sale transactions
As Canadian businesses continue to grapple with decreased cash flow as a result of COVID-19, many are looking for ways to generate cash and remain viable. One such way is to sell non-core assets or divisions through a pre-packaged sale […]
Conflicted About Choice of Law? Saskatchewan’s PPSA Amendments on Conflicts of Laws Rules – Part 1
As we summarized in a recent Financial Services & Insolvency Communiqué, Saskatchewan has introduced Bill 151 (the Bill) which amends The Personal Property Security Act, 1993 (Saskatchewan) (the PPSA or the Act). Over the coming weeks and months our Saskatchewan […]
Taking Security on Personal Property: A Glimpse Into Secured Lending in Canada
In recent years, cross-border transactions have increased in popularity and many of these transactions involve taking security over tangible and intangible personal property. As a result, it is now customary for financial services lawyers to be called upon by clients […]
Ch-ch-changes: Saskatchewan’s PPSA amendments are here
In late 2018, the Saskatchewan Legislature introduced Bill 151 to amend The Personal Property Security Act, 1993 (Saskatchewan) (the “PPSA”). Our Saskatchewan Financial Services team spent the next many months analyzing the amendments and explaining them in a series of Financial […]
Protection for suppliers
The BC Supreme Court’s decision in Soccer Express Trading Corp. (Re), 2020 BCSC 749 shows some possible protections for critical suppliers under the CCAA When a company files for protection from its creditors, a supplier to that company who has […]
COVID-19 Financial Services Update: electronic chattel paper amendments to the PPSA come into force in Ontario
The amendments to the Ontario Personal Property Security Act (“PPSA”) and the Electronic Commerce Act that enable perfection by control of electronic chattel paper (“ECP”) came into force on May 15, 2020. This is an especially important change during the COVID-19 emergency […]
COVID-19 Financial Services Update: use of cash deposits in Québec
The situation created by the spread of COVID-19 will have a significant impact on the cashflow of several businesses as a result of a reduction in sales and, consequently, of accounts receivable and cash balances. While government support measures certainly […]
Deemed trust for unremitted GST primes bank’s security interest
On April 29, 2020, the Federal Court of Appeal (the “FCA”) released their decision in The Toronto-Dominion Bank v Canada[1] (“TD v Canada”), in which the FCA concluded that a deemed trust in respect of unremitted goods and sales tax […]
Are you interested in decreasing the expense side of the balance sheet?: Ontario assessment appeal deadline extended to May 29, 2020
The Ontario deadline to file assessment appeals under the Assessment Act, R.S.O. 1990, c. A.31. has been extended to May 29, 2020. You might be asking: Why should I care? That question is answered below. We all know that property […]
COVID-19 Financial Services update: perfection by control
Our prior Financial Services Updates have focused on proactive and defensive measures that both lenders and borrowers can take in light of the economic hardships brought on by the COVID-19 pandemic. This week we focus on a practical consideration that […]
Saskatchewan Court of Queen’s Bench loosens COVID-19 restrictions
The Saskatchewan Court of Queen’s Bench is set to resume many operations that were suspended in March due to the COVID-19 pandemic. On April 23, 2020, the Court released a new directive outlining how it plans to restart some of […]
Restructuring & Insolvency: COVID-19 preparedness and support commitment
As the impact of COVID-19 is felt around the globe we feel intensely our obligation to address every aspect of our operations with the goal of ensuring that family, friends and clients are safeguarded, and that we fulfill our duties […]
COVID-19: Financial Services update, liquidity and anti-hoarding
While the COVID-19 pandemic is an unprecedented global crisis, the resurgence of the mentality that ‘Cash is King’ is all too familiar. In both the 2008 financial crisis and the downturn in the oil and gas industry beginning in 2014, […]
COVID-19 and release of holdback under Ontario’s Construction Act
UPDATE: The issues raised in this advisory have been addressed by Ontario’s issuance of O.Reg.137/20. Here is a link to our communique on O.Reg. 137/20. On March 17, 2020 the Ontario Government declared a state of emergency. On March […]
COVID-19 Financial Services update: conflicts – related party loans
In light of the current economic environment surrounding the COVID-19 pandemic, companies are in need of additional liquidity and working capital. Recently, our group has seen an increase in lending transactions where shareholders are providing secured subordinated loans to their […]
COVID-19: Financial Services update, lenders obligation to act in a commercially reasonable manner and their duty of good faith
As a result of the global economic uncertainty arising from the COVID-19 pandemic, borrowers are now confronted with numerous concerns, including business interruptions impacting their cashflow and their ability to maintain access to liquidity in the face of an uncertain […]
COVID-19 Financial Services update: terminating or disclaiming contracts
In previous weeks our Financial Services Updates have discussed certain proactive measures that lenders and borrowers can take in light of the COVID-19 pandemic. This week our update focuses on the ability of companies to terminate contracts in accordance with […]
Government amends Regulation suspending limitation periods to allow for release of holdback under Ontario’s Construction Act
On April 1, 2020 we wrote about O.Reg. 73/20 which suspended limitation periods imposed by any Ontario law retroactive to March 16, 2020. We noted that if the effect of O. Reg. 73/20 applies to suspend the time for liens […]
COVID-19: Financial Services update, measures to permit remote electronic witnessing of documents
Although the COVID-19 crisis is having an enormous impact on businesses, commercial activity has not ended. As a result, lawyers continue to work on transactions for our clients, but most are doing so remotely. This new approach to legal work […]
COVID-19 and collections in the Court of Queen’s Bench for Saskatchewan
Courts across the country have taken steps to help curb the spread of COVID-19, and to protect litigants, lawyers, court staff and the judiciary. The Court of Queen’s Bench for Saskatchewan is no exception. The Court issued a new Practice […]
Advisory Committee on Open Banking provides update on consumer-directed finance in Canada
Overview On January 31, 2020, the Advisory Committee on Open Banking[1] (the “Committee“) released a report on “Consumer-directed finance: the future of financial services” (the “Report“). The Report was in connection with the Committee’s consultation process and recommends the development […]
The 2019 Legislative Amendments to the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act
On November 1, 2019, major amendments to the Bankruptcy and Insolvency Act (Canada) (the “BIA”) and the Companies’ Creditors Arrangement Act (Canada) (the “CCAA”) included in Bill C-97[1] and Bill C-86[2] came into force. The Government of Canada has stated […]
Amendments to PMSI Rules in Saskatchewan
As we summarized in a recent Financial Services & Insolvency Communiqué, Saskatchewan has introduced Bill 151 (the Bill) which amends The Personal Property Security Act, 1993 (Saskatchewan) (the PPSA or the Act). Over the coming weeks our Saskatchewan Financial Services team will bring you a […]
Things You May Not Know About the Farm Debt Mediation Act
Most or all creditors who lend to farmers will be familiar with the Farm Debt Mediation Act, S.C. 1997, c. 21 (the “FDMA”) and the need to serve a notice under the FDMA before taking action against a farmer. However, […]
( Available in French only )
Vente à tempérament ou consignation ? La distincton est importante notamment en regard de l’opposabilité en l’absence de publication (Cour d’appel)
Vente ou consignation, transfert immédiat du titre sur les biens impayés ou simple détention par l’acheteur éventuel au nom d’autrui? Ces questions sont à la base d’un conflit entre une débitrice, la Fédération des producteurs acéricoles du Québec (la Fédération) […]
( Available in French only )
L’argent est un bien fongible. À défaut de ségrégation ou identification précise, il ne peut être revendiqué comme produit de disposition d’un bien hypothéqué ou sous réserve de propriété (Cour d’appel)
Un créancier réclame un montant déposé dans un compte bancaire et qui représenterait selon lui le produit de la vente de quatre véhicules récréatifs financés par lui et vendus par le concessionnaire devenu failli. Le Juge de première instance a […]
( Available in French only )
Droit de rétention du dépositaire et garantie en vertu de l’article 427 de la Loi sur les banques : qui a priorité?
Dans le cours de ses affaires, la débitrice Colbex a remis des produits de viande à Les Entreposages Frigorifiques Total inc. (Total) de manière à ce que cette dernière procède à la congélation, manutention et entreposage desdits produits de viande. […]
( Available in French only )
Demande de radiation d’une hypothèque légale de la construction au motif que l’entrepreneur qui a réalisé les travaux ne possède pas une licence appropriée.
La demanderesse Caisse Desjardins de Vaudreuil-Soulange (la « Caisse ») demande à la Cour de rendre un jugement sur la requête pour jugement sur des questions de droit préliminaires. La Caisse détient une hypothèque immobilière sur l’immeuble de M. Rémy Brabant. La […]
( Available in French only )
La priorité consentie à une municipalité pour les taxes impayées suit les acquéreurs subséquents d’un immeuble malgré la faillite. Cette priorité est indivisible et les acquéreurs sont tenus solidairement au paiement de l’entièreté de la créance, nonobstant le fait qu’ils ne sont propriétaires que d’une partie de l’immeuble qu’ils ont acquis.
Glassco, qui était propriétaire d’un grand terrain sur la municipalité de Desbiens, n’a pas payé ses taxes foncières depuis 2007. Ce dernier est condamné au paiement de 144 201 $ le 12 janvier 2010. Le 13 juin 2011, Glassco est déclaré en faillite. L’immeuble […]
Changes to the Guarantees Acknowledgement Act (Alberta)
Until now, Alberta law required that a personal guarantee be executed with the assistance of a notary public. Effective April 30, 2015, a notary public can no longer execute the certificate required by Alberta law. The certificate must be executed […]
( Available in French only )
La Cour supérieure rappelle les critères applicables dans le cadre d’une demande de nomination de séquestre contestée.
Le 11 décembre 2012, Groupe Arsenault inc. («Groupe Arsenault») et 9089-1557 Québec inc. concluent une convention de crédit avec Callidus Capital Corporation («Callidus») aux termes de laquelle Callidus leur consent des crédits d’opération. Le même jour, Groupe Arsenault, 9098-1557 Québec […]
Monetary Claims
Highlights A new regime for security over monetary claims came into force January 1, 2016. A “monetary claim” is (i) a claim for payment solely in money that (ii) is owed to the debtor by its creditor or a third party. […]
