Canadian Appeals Monitor Information and Commentary on Upcoming and Recent Appeal Court Decisions

Category Archives: Bankruptcy and Debt

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When is a Quistclose trust not a Quistclose trust? When you call it a “debt”

Posted in Aboriginal, Bankruptcy and Debt, Case Comments, Contracts

In Ontario (Training, Colleges and Universities) v. Two Feathers Forest Products LP, 2013 ONCA 598, the Ontario Court of Appeal granted the appeal of an interim receiver, Pricewaterhousecoopers Inc., from a Superior Court of Justice decision where grant funds that were advanced by the respondent, Ontario’s Minister of Training Colleges and Universities (the “Ministry”), to… → Read More

The UK Supreme Court clarifies: no marshalling without an underlying debt, and maybe no marshalling in any event

Posted in Bankruptcy and Debt, Contracts, Corporate Law, Financial Services

The doctrine of marshaling has existed for centuries and was developed to address inequitable circumstances in which secured parties were unable to realize on their security. The UK Supreme Court has recently considered the doctrine in a case, Szepietowski (nee Seery) (Appellant) v The National Crime Agency (formerly the Serious Organised Crime Agency) (Respondent), which… → Read More

Suspension Denied: ONCA Confirms that Automatic Stay Pending Appeal does not Suspend the Limitation Period

Posted in Bankruptcy and Debt, Case Comments, Procedure

The recent decision of the Ontario Court of Appeal in msi Spergel Inc. v. I.F. Propco Holdings (Ontario) 36 Ltd., 2013 ONCA 550 (“msi Spergel”) confirms that the Court will not suspend, extend or otherwise vary the general two-year limitation period under the Limitations Act, 2002 (the “Limitations Act”) unless there is express statutory authority… → Read More

Attribution of Knowledge: Does it depend on the identity of the victim?

Posted in Administrative, Bankruptcy and Debt, Corporate Law

In Jetivia SA & Anor v Bilta (UK) Ltd & Ors, the England and Wales Court of Appeal confirmed and clarified the circumstances in which a director’s knowledge of fraudulent conduct will be attributed to the company. In particular, it explained that a director’s knowledge will not be attributable to the company in the context… → Read More

When is a Decision Final?

Posted in Administrative, Bankruptcy and Debt, Case Comments, Procedure

Introduction It is now easier for Parliament to enact legislation to override judicial decisions that it does not like. The Supreme Court has held that declaratory legislation –i.e. legislation that “clarifies” already existing legislation– can apply retroactively and can circumvent the binding directives of an appellate court. In Régie des rentes du Québec v. Canada… → Read More

The Second Opinion: Does Seven Minutes Matter? It Does in Marathons, Flight Schedules…and if You Are Commencing an Appeal

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in Bankruptcy and Debt, Procedure, The Second Opinion

The BC Court of Appeal  was recently invited to turn back time, by a mere 7 minutes, for the purpose of saving an appeal. At stake in Temple Consulting Group Ltd. v. Abakhan & Associates Inc., 2013 BCCA 119 was the $500,000 claim of a creditor against the bankrupt estate of Steven Friedland, a B.C…. → Read More

Give This Post Superpriority – Supreme Court Decides Sun Indalex Finance, LLC v. United Steelworkers

Posted in Bankruptcy and Debt, Case Comments, Financial Services, Labour and Employment, Procedure

Introduction The Supreme Court has issued its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers. The Supreme Court has issued its much-anticipated decision in Sun Indalex Finance, LLC v. United Steelworkers (“Indalex”). The decision has significant implications for lenders, employers and pension plan administrators of Ontario-registered defined benefit (“DB”) pension plans. First, it… → Read More

Top Appeals of 2013: The Appeals Monitor Looks Forward

Posted in Bankruptcy and Debt, Case Previews, Class Actions, Features, Procedure, Professions, Torts

“Prediction is very difficult, especially about the future.” – Niels Bohr (1885-1962) “Weatherman wet-fingers the sky He pokes it out, he pulls it in He don’t know why.” – Gordon Downie (1964- )   In the spirit of the season, Canadian Appeals Monitor has decided not only to look back on the key appeals of… → Read More

This Week at the SCC (07/12/2012)

Posted in Aboriginal, Bankruptcy and Debt, Corporate Law, Environmental, Labour and Employment, Securities, This Week at the SCC

Cases Decided The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions. In Newfoundland and Labrador v. AbitibiBowater Inc., 2012 SCC 67, the majority of the Court held that environmental protection orders issued under provincial legislation, which required an insolvent company to undertake remediation measures but which were… → Read More

This Week at the SCC (30/11/2012)

Posted in Bankruptcy and Debt, Intellectual Property, Labour and Employment, Professions, Securities, This Week at the SCC

Cases Decided The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions. In Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, the Court held the Alberta Court of Appeal erred in quashing a decision of the Alberta Labour Relations Board on judicial review.  The Court’s brief judgment… → Read More

A Rascal of a Doctrine: The Elusive Definition of Resulting Trust

Posted in Bankruptcy and Debt, Case Previews, Class Actions, Contracts

The Supreme Court of Canada has recently granted leave to appeal from the judgment of the British Columbia Court of Appeal in Edward Sumio Nishi v. Rascal Trucking Ltd. This appeal focuses on the test for a resulting trust in the commercial context. The decision will be of interest to a broad range of business… → Read More

The ISDA Master Agreement and Implied Terms: Text Over Context in the English Court of Appeal

Posted in Bankruptcy and Debt, Case Comments, Contracts, Financial Services

Should a commercial contract be interpreted literally, or should a court adopt a non-literal interpretation if necessary to achieve a result that makes commercial sense given the context (the factual matrix) of the agreement? This issue is an enduring one in contractual interpretation, and was recently put to the test in Lomas & Ors v…. → Read More

In DIP Financing We Trust? Supreme Court of Canada to Hear Indalex Appeal

Posted in Bankruptcy and Debt, Case Previews, Contracts, Corporate Law

The Supreme Court has announced it will hear the appeal in the high profile Indalex Ltd., Re. The appeal is of great interest to the commercial litigation, insolvency and pension bar. Its outcome will be closely watched and may have dramatic impact on Canadian corporate reorganizations. Background The Indalex decision arose out of the insolvency… → Read More

OCA to Consider Principles for Replacing an Arbitrator for Bias

Posted in Bankruptcy and Debt, Case Previews, Procedure

In Universal Settlements Inc. v. Duscio, Justice Lederer heard an application to set aside a number of arbitral orders and to replace an arbitrator on grounds of bias. The underlying proceeding was a shareholder’s dispute and oppression application made pursuant to a shareholders agreement containing an arbitration clause. During the currency of the arbitration, one… → Read More

SCC to Determine Whether an Order to Clean is a Claim under the CCAA

Posted in Bankruptcy and Debt, Case Previews, Constitutional, Energy

On November 16, 2011, the Supreme Court of Canada will hear a case challenging the constitutionality and applicability of several sections of the Companies’ Creditors Arrangement Act (CCAA) to provincial environmental statutes. The province of Newfoundland and Labrador (the “Province”) compels AbitibiBowater Inc. to clean up industrial sites that the company once owned and operated… → Read More

U.S. Supreme Court to Consider Enforceability of Arbitration Clauses

Posted in Bankruptcy and Debt, Case Previews, Class Actions, Procedure

The United States Supreme Court has agreed to revisit the issue of whether a statute can override an arbitration clause in a consumer agreement. This time, at issue is the remedial legislation entitled Credit Repair Organization Act (CROA), which provides consumers with “the right to sue a credit repair organization” that violates the Act. The… → Read More

Will Your Companies’ Creditors Arrangement Act Superpriority Still Be that Super once the Scheme of Collocation is Drawn Up?

Posted in Bankruptcy and Debt, Case Comments, Construction and Real Estate, Financial Services

In the context of an arrangement plan pursuant to the Companies’ Creditors Arrangement Act, a financial institution was granted a superpriority on all moveable and immoveable debtors’ assets following an additional $2,150,000 loan to the debtor, in order to allow it to complete some construction projects it had already started and for which it already owed… → Read More

OCA to Consider ESA Obligations In CCAA Proceedings

Posted in Bankruptcy and Debt, Case Previews, Labour and Employment

The Court of Appeal will be called upon to determine whether Employment Standards Act obligations, such as termination and severance pay, can be discharged by a Debtor-in-Possession in a CCAA proceeding. In Windsor Machine, Justice Morawetz heard an application by the union representing the employees of a debtor company. The debtor company had terminated all… → Read More