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Category Archives: Bankruptcy & Debt

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

By Geoff R. Hall on Posted in Bankruptcy & Debt, 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

By Ronald Podolny on Posted in Bankruptcy & Debt, 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

By Adam Ship on Posted in Bankruptcy & Debt, 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

By Marc-Andre Russell on Posted in Bankruptcy & Debt, 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

By Ronald Podolny on Posted in Bankruptcy & Debt, 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?

By Rachel Laferriere on Posted in Bankruptcy & Debt, 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

By Adam Ship on Posted in Bankruptcy & Debt, 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