Canada: Restructuring Insolvency Report - September 2014

BANNERS BROKER CROSS-BORDER INSOLVENCY

By David Ward, Larry Ellis

In the context of cross-border insolvencies, Canadian courts have consistently encouraged comity and co-operation with courts in other countries.

The winding-up of Banners Broker International Limited ("Banners Broker") illustrates the flexible nature of the relief available and the ability of our courts to deal with peculiar and unusual circumstances.

Banners Broker was an internet advertising business based in the Isle of Man. It had an online business presence that was international and is believed to have involved a significant Canadian dimension.

In August 2014, the Joint Liquidators of Banners Brokers appointed by the High Court of Justice of the Isle of Man came to Canada to seek recognition of their insolvency proceeding as a "foreign main proceeding" pursuant to Part XIII of the Bankruptcy and Insolvency Act (Canada).

The request for foreign recognition proved non-controversial and was granted by the Ontario Superior Court of Justice (Commercial List) (the "Court").

The Banners Broker cross-border proceeding is novel, however, in several important respects.

  • First, the Joint Liquidators requested and were granted the appointment of an investigative receiver (the "Receiver") in Canada. The Receiver has been charged by the Court with identifying and realizing on Banners Broker's local assets.
  • Second, an information officer was not appointed. Information officers, who have a monitoring and creditor liaison function, are generally appointed by the court in Canadian foreign recognition proceedings. In the Banners Broker proceeding, however, the Court accepted that the Receiver, the Court-appointed officer, was appropriately positioned to undertake what are typically an information officer's responsibilities.
  • Finally, Banners Broker is believed to be the first cross-border insolvency case between Canada and the Isle of Man.

The investigation and liquidation of Banners Broker is ongoing. Cassels Brock acts as counsel to the Joint Liquidators as well as the Receiver.

EDGEWORTH:COMMERCIAL REASONABLENESS IN RECEIVERSHIP PROCEEDINGS

By Seema Aggarwal, Jane Dietrich, Shayne Kukulowicz

Recently, the Ontario Superior Court of Justice released a decision regarding amending a receivership order and re-allocating the proceeds of sale in a receivership proceeding (Romspen v Edgeworth, 2014 ONSC 4340). The effect of the decision is to confirm that, notwithstanding any final orders made in the proceedings, the court has the authority to ensure that the proceedings achieve a commercially reasonable result.

Background

Edgeworth Properties Inc. and certain of its subsidiaries (collectively, the "Debtor") have been operating as a property, investment and development enterprise in Alberta, Canada. In 2011, the Debtor obtained protection under the Companies' Creditors Arrangement Act (Canada) (the "CCAA"). At the same time, a receiver (the "Receiver") under the Bankruptcy and Insolvency Act (Canada) (the "BIA") was appointed over sixteen of the Debtor's Alberta properties (the "Receivership Properties" and the "Receivership Order", respectively).

The Initial Order made in the CCAA proceeding provided that the Debtor held the residual interest from the sale of the Receivership Properties after (i) the satisfaction of any charges granted under the Receivership Order; and (ii) the discharge of any first mortgages registered on title. Normally in a receivership proceeding, the court will grant a priority charge in favour of the receiver on all of the receivership property to secure any borrowings made by the receiver (a "Borrowing Charge"). However, in this instance, the Receivership Properties were segregated and the Borrowing Charge was granted on a property by property basis. Accordingly, contrary to the normal course, the proceeds of sale of one Receivership Property arguably could not be used to repay the Receiver's borrowings with respect to another Receivership Property.

The effect of this segregation, however, was to prejudice the Debtor's subordinate creditors. The secured creditor, who held certain of the first mortgages registered on title to the Receivership Properties, a second mortgage that was cross-collateralized across all sixteen of the Receivership Properties (the "Blanket Mortgage") and who was also the lender in respect of the Receiver's borrowings (the "Secured Creditor"), proposed that, upon the sale of a Receivership Property, the proceeds would be applied first to repay the Receiver's borrowings for that particular property, second to any first mortgage registered on title to that particular property, and third to the Blanket Mortgage. Given that the Blanket Mortgage bore interest at approximately 12% per annum whereas the Receiver's borrowings bore interest at approximately 24% per annum, applying the proceeds of sale of one Receivership Property to repay the Blanket Mortgage before the Receiver's borrowings in respect of the other Receivership Properties (the "Receiver's Other Borrowings") resulted in less residual funds flowing from the Receivership proceeding to the CCAA proceeding for distribution to the Debtor's subordinate creditors.

The Debtor brought a motion to vary the Receivership Order pursuant to Rule 59.06 of the Rules of Civil Procedure (Ontario) (the "Rules") so that any proceeds of sale would be applied to repay the Receiver's Other Borrowings before the Blanket Mortgage. In the alternative, the Debtor sought an order pursuant to Section 248 of the BIA for similar relief. The Secured Creditor opposed the motion.

Decision of the Ontario Superior Court of Justice

The Court ruled in favour of the Debtor and amended the Receivership Order pursuant to Rule 59.06 of the Rules so that the proceeds of sale were applied to repay the Receiver's Other Borrowings before the Blanket Mortgage. The Court also granted an order pursuant to Section 248 of the BIA directing that the proceeds of sale be applied in a commercially reasonable manner.

(a) Rule 59.06: Amending the Receivership Order

The Court held that Rule 59.06 provides a limited set of circumstances where an order may be varied or set aside including on the basis of facts arising or discovered after it was made. Based on the evidence, the Court was satisfied that the Secured Creditor's interpretation of how the proceeds of sale were allocated was not what the parties had intended when the Receivership Order was granted, and that new facts had arisen since the Receivership Order was issued which made it apparent that the Secured Creditor's proposed allocation was not commercially reasonable.

The Court further held that the Secured Creditor would not be prejudiced as it would still recover interest owing in respect of the Receiver's borrowings and the Blanket Mortgage at the proposed lending rates, and that the Debtor did not delay in bringing this matter forward.

While the Court appreciated the Secured Creditor's argument that there was a need for certainty and finality in court orders, it nevertheless held that, in this case, the allocation of proceeds was not finally decided, the Secured Creditor's proposed allocation was inconsistent with the intention of the parties at the time the Receivership Order was issued, and new facts had arisen.

(b) Section 248 of the BIA: Applying the proceeds of sale in a commercially reasonable manner

In the alternative to the Rule 59.06 relief, the Court granted an order under Section 248 of the BIA to apply the proceeds of sale in a commercially reasonable manner.

Where the court is satisfied that a secured creditor, receiver or insolvent person is failing or has failed to carry out any duty imposed by Sections 244 to 247 of the BIA, Section 248 allows the court to make an order, "on such terms as it considers proper," among other things, "directing the secured creditor, receiver or insolvent person, as the case may be, to carry out that duty."

The Court noted that Section 247(a) of the BIA requires the Receiver to deal with the property of an insolvent person, "in a commercially reasonable manner" and held that repaying the Blanket Mortgage bearing interest at 12% per annum before repaying the Receiver's Other Borrowings bearing interest at 24% per annum was not commercially reasonable. The Court also relied on Section 250 of the BIA, which enables it to make an order under Section 248 notwithstanding any order made under section 243(1) of the BIA. 

Implications

This decision demonstrates that courts will be flexible to changing circumstances in proceedings commenced under the BIA or the CCAA, and will require parties to act in a commercially reasonable manner throughout. While the Court in this instance did not explicitly state it was doing so, it effectively balanced the interests of the various stakeholders in both the CCAA proceeding and the Receivership proceeding and, therefore, reached a fair result. Stakeholders of companies undergoing BIA or CCAA proceedings should be aware that attempts, inadvertent or otherwise, to better one's position vis-a-vis other stakeholders will be scrutinized by the courts.  

Cassels Brock continues to act as counsel to the Debtor. As at the date of this article, the Secured Creditor has issued a Notice of Appeal of the decision to the Ontario Court of Appeal.

THE ATLAS BLOCK: CLA DEEMED TRUST MEETS BANKRUPTCY

By David Ward, Larry Ellis

In the recent decision of Royal Bank of Canada v. Atlas Block Co. Limited 2014 ONSC 3062 ("Atlas Block"), the Honourable Mr. Justice Penny of the Ontario Superior Court of Justice (Commercial List) confirmed that trust claims pursuant to section 8 of the Construction Lien Act (Ontario) ("CLA") do not survive bankruptcy.

The case is significant for at least two reasons. First, it clearly held that a CLA deemed trust, like other trusts created by provincial statutes, will not create priorities or change the scheme of distribution under the Bankruptcy and Insolvency Act (Canada) (the "BIA") because of the constitutional principle of federal paramountcy.

Second, and perhaps of more interest, was the court's consideration of whether a court appointed receiver has a positive obligation to try and segregate accounts receivable collections during a receivership administration in furtherance of a CLA trust.

To the first point, Justice Penny held that the CLA deemed trust provisions are not an exception to the "long line" of Supreme Court of Canada authorities summarized by the Ontario Court of Appeal in GMAC Commercial Credit Corp. Canada v. TCT Logistics Inc., (2005) 7 C.B.R. (5th) 202, as follows:

A consistent series of cases from the Supreme Court of Canada has addressed the effect of provincial statutory deemed trusts in a bankruptcy...

These cases hold that because bankruptcy is a matter under federal jurisdiction, provincial statutory deemed trusts that do not conform to general trust principles cannot operate to reorder the priorities in a bankruptcy. Therefore, although such deemed trusts are effective in accordance with the provincial legislation when a person or business is solvent and operating...Upon bankruptcy the funds that are subject to a deemed trust, but are not held in accordance with general trust principles, will not be excluded from the property of the bankrupt under 67(1)(a) of the BIA and will be distributed in the priority prescribed by the BIA.

As far as the obligations of the insolvency representatives are concerned, the court's conclusion was that "the Receiver's obligations cannot exceed what the debtor was obliged to do." The receiver was accordingly under no obligation to establish and maintain a separate account for funds received as payment for products sold containing the deemed trust claimant's product.

The court's reasoning turned on the fact that the provincial legislation only went so far as to designate a "deemed trust," which is in a sense a legal fiction. Unlike other legislative schemes, for instance in the area of carriage of goods, the CLA did not place specific regulatory obligations on the debtor (or a successor receiver) to establish and maintain a separate account for collections designated as a trust account.

Accordingly, although the receiver stepped into the shoes of the debtor upon its appointment, the court held that the receiver was under no legislative obligation to keep the putative trust funds separate and apart from other funds received in the ordinary course. This conclusion rests on the theory that the CLA only deems a trust and does not impose a duty to create one.

As a result of this decision, the materials supplier in Atlas Block was left without a common law trust, or a statutory deemed trust, sufficient to improve its bankruptcy priority.

It should be noted that within a few weeks of the release of the decision in Atlas Block, the Alberta Court of Queen's Bench reached an identical conclusion on the interplay between the deemed trust provisions of that province's Builders' Lien Amendment Act, and the federal bankruptcy legislation. In Iona Contractors Ltd. Re. 2014 ABQB 347, the Alberta court ruled that provincially created statutory deemed trusts – including those established by builders' lien legislation – will not supercede the distribution directions in the BIA.

NEW REQUIREMENTS FOR CHAPTER 15 PROTECTION

By Bruce Leonard

Chapter 15 is the adoption by the United States in the US Bankruptcy Code of the UNCITRAL Model Law on Cross-Border Insolvency (the "UNCITRAL Model Law"), which Canada has also substantially adopted (see Parts IV and XIII on Cross-Border Insolvencies under the CCAA and the BIA, respectively).

A recent case in the United States Second Circuit Court of Appeals has added a new wrinkle for debtors seeking Chapter 15 protection in the United States.1 The Second Circuit Court of Appeals is one of the most respected commercial Appellate Courts in the United States and is one of the two Appellate Circuit Courts that are involved in a large volume of international insolvency cases.

The case involved the liquidator of an Australian company who sought recognition in the United States for its Australian liquidation proceedings. Recognition was opposed by a creditor on the basis that, among other things, the liquidator had failed to prove that the debtor had assets, property or carried on business in the United States. The UNCITRAL Model Law does not contain that requirement but the Court of Appeals focused on the definition of "debtor" in section 109(a) of the US Bankruptcy Code, which requires that a "debtor" must reside in or have a place of business or property in the United States. The Court of Appeals ruled that the liquidator's failure to prove that the debtor had tangible assets or a business in the United States was consequently fatal to its application for Chapter 15 protection.

The threshold for proving the availability of assets in the United States for purposes of Chapter 11 of the Bankruptcy Code is not high. In one celebrated case, the unearned portion of a retainer paid to the foreign debtor's United States bankruptcy counsel was held to be sufficient property to support the debtor's bankruptcy proceeding in the United States.2 Consequently, it would seem that the statutory construction in the U.S. Bankruptcy Code adopted by the Second Circuit can be easily satisfied but it is important for insolvency administrators seeking Chapter 15 relief to be aware of the requirement and to provide a sufficient evidentiary basis to satisfy it.

Treating the decision of the Second Circuit as only a modest setback, however, the liquidators applied again for Chapter 15 recognition and this time they were successful. By the time of the second application, the liquidators had commenced formal proceedings in New York against, among others, the objecting creditor. The Bankruptcy Court concluded that the claims comprised in those proceedings constituted property of the debtor in the United States which was sufficient to establish jurisdiction for relief under Chapter 15 (as did the modest, undrawn retainer provided to their U.S. counsel).3 Relief under Chapter 15 was accordingly granted, proving once again that, if at first you don't succeed....

Footnotes

1 Drawbridge Special Opportunities Fund LP v. Barnet (In re Barnet), 2013 WL 6482499 (2d Cir. 12/11/2013).

2 In re Global Ocean Carriers, Ltd., 251 B.R. 31, 39 (Bankr. D. Del. 2000)

3 Re Octavira Administration PTY Ltd., Case No. 14-10438 (SCC) (Bankr. SDNY, June 19,2014)

CANADIAN BANKRUPTCY REFORM HAS STARTED

By Bruce Leonard

Pursuant to a statutorily-mandated process for the review of Canada's insolvency legislation, Industry Canada is conducting public consultations to obtain submissions from interested Canadians regarding potential changes and updates to the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act. In this regard, Industry Canada has published a discussion paper that sets out numerous issues identified from key stakeholder input and is intended to provide a framework for the public consultations. The discussion paper includes a summary of the issues identified under the following three headings: consumer insolvency issues; commercial insolvency issues; and administrative and technical issues. The discussion paper may be viewed by clicking here.  

WHAT WE'VE BEEN UP TO

We are acting as Canadian counsel for the Official Committee of Unsecured Creditors of Nortel Networks Inc. ("Nortel U.S.") in connection with Nortel's proceedings under the Companies' Creditors Arrangement Act (Canada) (the "CCAA") and global restructuring. In May and June of this year, a joint trial was conducted by the Canadian CCAA Court (Toronto) and the U.S. Bankruptcy Court (Wilmington, Delaware) to adjudicate the allocation dispute involving approximately US$7.3 billion of proceeds from previously completed sales involving Nortel entities worldwide. The parties are currently preparing post-trial briefs and closing arguments are scheduled to take place in September 2014.

We are acting as counsel for Grant Forest Products Inc. and its affiliates in connection with their CCAA proceedings. The Office of the Superintendent of Financial Services has now perfected its appeal of an order of the Honourable Mr. Justice Campbell made last fall which, among other things, held that the CCAA stay should be lifted to permit an unsecured creditor to bankrupt Grant Forest Products Inc. affording no priority to outstanding wind-up deficits for two defined benefit pension plans whose wind-up had commenced during the CCAA proceedings. The appeal hearing has not yet been scheduled.

Eleonore Morris was appointed to the Turnaround Management Association NextGen Global Committee on February 28, 2014.

Jane Dietrich and Shayne Kukulowicz attended the INSOL International Annual Regional Conference in Hong Kong on March 23-25, 2014.

Shayne Kukulowicz moderated a panel on "Construction Liens and Director Liabilities" at the Canadian Association of Insolvency and Restructuring Professionals (CAIRP) 10th Annual Commercial Insolvency & Restructuring Program in Toronto, Ontario on March 27, 2014.

Joseph Bellissimo and Jonathan Fleisher spoke about "Cross-Border Financing and Restructuring" at the Equipment Finance and Leasing Association Legal Forum Conference in Fort Worth, Texas on May 5, 2014. 

Shayne Kukulowicz spoke on "Sovereign Debt" at the Inter-Pacific Bar Association 24th Annual Meeting and Conference in Vancouver, B.C. on May 9, 2014. John Birch and David Ward attended this event.

Jane Dietrich spoke on "Professionalism and Ethics" at the Canadian Association of Insolvency and Restructuring Professionals (CAIRP) Insolvency & Restructuring Forums in Halifax, Winnipeg, Vancouver, Calgary and Toronto on May 5-15, 2014.

Seema Aggarwal attended the R3 Annual Conference in Vilamoura, Portugal on May 14-16, 2014.

Jane Dietrich was inducted into the International Insolvency Institute NextGen Leadership Program in Mexico City on June 8, 2014. Larry Ellis attended this event, having been admitted to the NextGen Leadership Program in 2012.

Bruce Leonard co-chaired the International Insolvency Institute 14th Annual Conference in Mexico City on June 9-10, 2014. Cassels Brock was a Platinum sponsor of this event.

Eleonore Morris taught the Creditor Remedies and Tax segment of the Spring 2014 Bar Exam Prep Course offered by the University of Toronto in Toronto, Ontario on June 15, 2014.

Bruce Leonard, David Ward and Eleonore Morris taught the course on International Insolvency Law as part of the University of Toronto's Global Professional LL.M. program in Toronto, Ontario on July 5-6, 2014.

Larry Ellis spoke about "Current Developments in Canadian Insolvency Law" at the Europena University Institute's Conference titled "Current Developments in International and Comparative Insolvency Law: Corporates, Financial Institutions and Sovereigns" in Florence, Italy on July 24, 2014.

Jane Dietrich spoke about borrowing base reserves and potential priority amounts at the Commercial Finance Association's field examiner course in Toronto, Ontario on September 4, 2014.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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