Commercial agreements often contains provisions that set out what happens if one of the parties defaults. These provisions, sometimes called "ipso facto" clauses, might give the innocent party the right to end the agreement, or might set out an agreed additional amount ("liquidated damages") that the innocent party can claim as a result of the other party's default.
It is somewhat uncommon for a co-operative to seek protection from its creditors under the Companies' Creditors Arrangement Act, R.S.C. 1985, C. C-36, as amended (the "CCAA") but that is what the beloved Canadian outdoor retailer, Mountain Equipment Co-operative ("MEC"), did in Mountain Equipment Co-operative (Re), 2020 BCSC 1586.
The recent decision in Re Michie, 2020 BCSC 1611, addresses the entitlement of a trustee in bankruptcy to claim its fees and disbursements from property not owned by the bankrupt, in priority to the person entitled to the property, where such property has come into the trustee's possession and control in the course of the bankruptcy.
In the last week three more well-known retailers have been forced to seek creditor protection amid the pandemic-related shrinkage in consumer spending. Geox Canada, a shoe and clothing retailer with 30 stores, has seen its sales for the first half of 2020 drop to half that of 2019. Its restructuring under the Bankruptcy and Insolvency Act will focus on store closings and stronger e-commerce.
After the expiration of the “usual” six month redemption period in a foreclosure action in British Columbia, the mortgagee will generally apply for an order for conduct of sale with respect to the subject property. However, where the mortgagor believes that the subject property has ample value to satisfy the mortgagee’s claim, the mortgagee may apply for an extension of the redemption period.
The security granted to lenders and other creditors almost always provides for the appointment of a receiver: an agent of the creditor with the power to take over the property and business charged by the security, often with the purpose of arranging a sale.
Suppliers deemed to be critical to the survival of an insolvent business can be compelled to continue supplying, even over their objections. In a recent British Columbia decision, Soccer Express Trading Corp. (Re), Adidas Canada was ordered to continue selling inventory to their struggling customer, a retailer and wholesaler of sporting equipment, apparel and related items.
Not completely surprisingly, Covid-19 has created increased financial challenges for many Canadian companies and statistics show that they are increasingly seeking creditor protection in the hope of being able to weather the storm.
The impacts of Covid-19 have been felt in most aspects of life in Canada and insolvency proceedings are no exception. Generally, where general procedures have required people to gather together or even be in each other’s presence, new laws have been introduced...
In a sign of the continuing disruption in Canada’s retail landscape, Reitmans Canada Ltd. was recently granted creditor protection in Quebec proceedings under the federal Companies’ Creditors Arrangement Act...
Cannabis-related businesses continue to struggle. Last week Destiny Bioscience Global Corp., an Alberta research and development company focused on the genetics and cultivation of cannabis, was placed in receivership by its main lender...
BC's biggest chain of fitness clubs has joined the growing list of businesses unable to survive the "medically-induced coma" which the COVID-19 pandemic has forced on the economy. SNFW Fitness B.C. Ltd., which brought together the Fitness World and Steve Nash Sports fitness clubs, and also operated several "UFC Gym" facilities...
Question: It seems likely that my business will fail, given the COVID-19 recession we’re in. Fortunately, the business was carried on through a corporation, but as a director do I face any personal exposure despite incorporation?
The legal cannabis industry is a relatively new addition to the Canadian economy since its introduction in November 2018. Until December 2019 there had been very few insolvency proceedings commenced by cannabis companies but 2020 has seen at least 6 such insolvency proceedings ranging from receiverships to BIA proposal proceedings to CCAAs. With the onslaught of the COVID-19 pandemic...
Question: "I've given some of my commercial tenants a deferral on rent for the next three months. I don't need to remit GST on the rent until I receive it, right?"
This article looks at how corporations can avoid bankruptcy through the Companies' Creditors Arrangement Act (CCAA).
Question: With the slowdown caused by COVID-19, I am worried that my business will not be able to pay its suppliers and other creditors. Can I take money or other assets out of the company to protect them from creditors?
Question: I’ve heard the courts are closed during the COVID-19 crisis. Can anything be done to help my business?
Question: We've downsized our business to weather the COVID-19 crisis, including laying off staff, but what can we do about the rent owing on our lease?
A broad retreat in the pot industry was confirmed recently with the reporting of quarterly results by a number of publicly traded cannabis companies.
Einstein Exchange Inc. joins QuadrigaCX as the second cryptocurrency exchange to fall under court protection in 2019. In early February, 2019, the Quadriga group sought protection under the Companies’ Creditors Arrangement Act (the “CCAA”) following the death of the founder, Gerald Cotton. Mr. Cotton had sole responsibility for the wallet storage protocols and wallet passwords for Quadriga’s cryptocurrency inventory. When he died...
Amendments to the Bankruptcy and Insolvency Act (“BIA”) and the Companies’ Creditors Arrangement Act (“CCAA”) Came into effect on November 1, 2019. As of the publishing of this article, these changes are not yet reflected on the Department of Justice website, or on CanLII. However, it is important for debtors, creditors, and others to be aware of...
Lenders sometimes charge an “interest rate” that varies with the profits of the borrower’s business. So, rather than an interest rate of 5% per annum of the principal amount, the rate of return might be 5% of the borrower’s before-tax profit for that year. This can be attractive to the lender, as it gives them a share in the borrower’s “upside” if the business does well. (What about the “downside” of the business not doing well?
Under provincial law in most provinces (including British Columbia), on the bankruptcy of a commercial tenant and the “disclaimer” of the lease by the trustee in bankruptcy, the lease is terminated as if by a voluntary surrender between the landlord and tenant.
Suppliers of goods and services to the debtor following the initial order in proceedings under the Companies’ Creditors Arrangement Act (the “CCAA”) can be in a precarious position with respect to payment for those post-filing goods and services. While section 11.01 of the CCAA permits payment to be made to post-filing suppliers, there is no specific requirement for suppliers to be paid and no statutory priority over other parties in respect of such payment.
When companies seek to restructure through insolvency proceedings there is frequently an interim lender who “primes” the restructuring process by making a loan to fund the company taking necessary restructuring steps. This lender is routinely given a super-priority ahead of all other potential creditors, which is seen as a necessity to entice someone to inject new funds into an otherwise heavily encumbered and insolvent operation.
Get it in writing! A recent BC case highlighted the dangers of entering into financial arrangements with family members, without a clear written agreement on the terms of the arrangements. In T.L.G. v. K.M.G. (unusually, the names of the parties are not disclosed), a mother and father advanced money to their daughter which was used to buy her a house near Victoria. The daughter’s name went on the title, except for a 1% interest to the parents’ names.
Under recent changes to B.C.’s employment legislation, directors and officers of companies are personally responsible for wages owing by the company, even if the company is in bankruptcy.
Amid continuing weakness in lumber markets, Teal-Jones recently announced a halt in all logging on the B.C. Coast including under a significant timber farm licence in the Fraser Valley and Honeymoon Bay. As the company’s news release acknowledged, this halt “will result in substantial loss of employment for the company’s forestry employees and contractors.
According to a recent report in Better Dwelling, an independent online outlet for housing news, Vancouver’s sales-to-listings ratio, a measure of demand in the real estate industry, slipped into “buyer’s market” territory in July.
It is not uncommon for a parent to decide to hold property in joint tenancy with one or more adult children in joint tenancy as an estate planning tool. A parent may transfer title to a property into joint tenancy with a child with the intention that the child will become the sole owner of the property on the parent’s death, thereby avoiding probate fees associated with the property being held as part of a joint estate. However...
The British Columbia Personal Property Security Act (“PPSA”) has recently been updated to provide new rules for determining the location of a debtor where security is taken over mobile or intangible personal property.
The challenges faced by bricks-and-mortar retail businesses are also being faced by the owners of the bricks and mortar. Shopping mall owners struggle when their tenants struggle, and many landlords are now considering “doubling down” on their tenant’s business by also acting as lenders.
In Part 1 we discussed the factors to be considered in deciding whether to deal with a deceased person's insolvent estate under either the Wills, Estates and Succession Act ("WESA") or the Bankruptcy and Insolvency Act ("BIA"). In this concluding part, we will discuss the court proceedings in general terms under the WESA and the BIA.
All distributions made out of a bankrupt estate are subject to a 5% levy payable to Superintendent of Bankruptcy pursuant to section 147 of the Bankruptcy and Insolvency Act. Generally, this does not impact secured creditors, whose rights are largely unaffected in bankruptcy. However, in Superintendent of Bankruptcy v Business Development Bank of Canada, 2019 MBCA 72, the Manitoba Court of Appeal recently confirmed that in certain circumstances, even a secured creditor's recovery can be subject to the levy.
In a plot twist familiar to festival-goers here in BC, another music festival has declared bankruptcy, this time in Ontario.
The Roxodus Music Festival, put on by MF Live Inc., was set for July 11 to 14 and was to feature a star-studded cast of performers, including Aerosmith, Kid Rock, Nickelback, Lynyrd Skynyrd, Alice Cooper, Cheap Trick, Collective Soul, Matthew Good, Peter Frampton, Billy Idol, Theory of a Deadman, and Blondie, among others. Instead, just two days before the start of the four-day festival, MF filed for bankruptcy, listing creditors owed over $18 million.
At death, nearly everyone will have a few outstanding creditors, even if it is only for the last month's bills and outstanding taxes. The executor or court appointed administrator (the "Personal Representative") will generally pay the final bills in the course of the administration of the deceased's estate, assuming there are funds in the estate. If the estate is insolvent, because there are not enough assets to pay all the debts and liabilities of the deceased, the Personal Representative of the deceased, or family members who may be deciding whether to become a Personal Representative, will need to consider how they will deal with the insolvent estate.
A trustee in bankruptcy has special powers to investigate the affairs of a bankrupt estate, and among the greatest of those powers is the ability to review and potentially unwind transactions prior to bankruptcy under section 95 and 96 of the Bankruptcy and Insolvency Act ("BIA").
China modernized its bankruptcy laws for corporations back in 2007, enacting a legislative scheme similar to that of western nations, including the power to restructure insolvent corporations and avoid outright bankruptcy in certain situations.
A transfer of a car to a family member, within one year of the transferor's bankruptcy. Such transactions are regularly set aside in bankruptcy. Even where the transfer was on account of a previous debt owed to the family member, such a transfer would normally be an invalid "preference" under s. 95 of the Bankruptcy and Insolvency Act.
No one likes the endless trailers and advertisements that precede the main feature at movie theatres these days. But some in the audience might have preferred more ads to the fare on offer at a recent screening of the latest Avenger movie. ABC News reports that Chinese authorities now shame debtors and defaulters who owe money to the state by projecting their names and faces on the screen at movie theatres.
On April 8, 2019, the federal government introduced Bill C 97, An Act to Implement Certain Provisions of the Budget Tabled in Parliament On March 19, 2019 and Other Measures, which includes proposed amendments to the Bankruptcy and Insolvency Act, as well as the Companies' Creditors Arrangement Act.
A recent decision of the Supreme Court of BC took issue with a bankruptcy trustee's investigation of a proof of claim, but also serves as a reminder that creditors need to take the proof of claim process seriously, particularly where there is any complexity to their claim, or else they risk unneeded cost and inconvenience.