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Insolvency & Collections Archives

Are Licensed Insolvency Trustees Liable for Complying with Environmental Cleanup Orders?

The recent decision of the Supreme Court of Canada in Orphan Well Association v. Grant Thornton Ltd., 2019 SCC 5 clarified the extent of a licensed insolvency trustee's obligation when it comes to environmental cleanup obligations at least in the Province of Alberta. In doing so, the Supreme interpreted s.14.06(4) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B.3 (the "BIA") and ultimately held that its protection only extended to the licensed insolvency trustee itself and not to the bankrupt estate. AdobeStock_219354698_resized.jpg

Government Student Loans and Bankruptcy in Canada

As bankruptcy practitioners are aware, there was a time when the Bankruptcy and Insolvency Act (the "BIA") did not afford the special status to government student loans as it does now. During that time, however, the case law developed to the point where the courts afforded them special status especially where the bankrupt was seeking a discharge where their only liability was for government student loans.One such case was Burke (Re), 1992 CanLII 4573 (NS SC).AdobeStock_247059728_resized.jpg

Personal Guarantees

Signing ContractAs a general rule, when a person signs a contract, he or she accepts the terms of the contract and agrees to be bound by them. The words used in the contract typically demonstrate the obligations that the person takes on by signing the contract. A common obligation that is often the subject of litigation is money owing by a person who signs a personal guarantee.

CRA Must Seek Leave to Issue a Notice of Assessment Post Bankruptcy

Court-PillarsLast year the writer wrote a blog regarding tax debtors who file an assignment in bankruptcy rather than appealing a large assessment that the tax debtor received from the Canada Revenue Agency (the "CRA"). As a corollary to that blog, a recent decision of the Quebec Court of Appeal, wherein leave to appeal the decision was sought but denied by the Supreme Court of Canada, puts a wrinkle into the situation where CRA issues a notice of assessment after the tax debtor files an assignment in bankruptcy.

Guarantors must exercise care when paying out a guaranteed debt where there is a co-guarantor

Blog PhotoThe Ontario Court of Appeal recently considered the situation of a guarantor (otherwise known as a surety) paying out a guaranteed debt where there were a co-guarantor and the right of the guarantor to then claim contribution from the co-guarantor.  In Can-Win Leasing (Toronto) Ltd. v. Moncayo, [2014] O.J. No. 4790, Can-Win Truck was owned by Irwin and Moncayo.  Irwin, Moncayo and Can-Win Leasing, of which Irwin was the sole shareholder, guaranteed repayment of Can-Win Truck's debt to RBC.  Irwin unilaterally took over Can-Win Truck's business from Moncayo since he was concerned about the state of Can-Win Truck's business.

How Partial Truths May Lead to a Finding of Misrepresentation

MP Blog PhotoIn Meridian Credit Union Limited v. Baig, 2014 CarswellOnt 11251 (S.C.J.), Meridian held a first mortgage on the property of 984 Bay Street Inc. After 984 Bay Street Inc. defaulted on its loan obligations, Meridian obtained an order appointing KPMG Inc. as receiver and manager of the property. The Receiver sold the building to Baig for $6.2 million. The Receiver did not know that prior to closing, Baig had resold the building to Yellowstone Property Consultants Corp. for $9 million.

Assignment in bankruptcy instead of appealing a CRA assessment

Are you considering filing an assignment in bankruptcy rather than appealing a large assessment that you received from the Canada Revenue Agency?  If so, you better think twice since it could have a large impact on what kind of order the court will make at your discharge hearing.  In Re Baran, 2013 CarswellOnt 16766 (S.C.J.), the Canada Revenue Agency (the "CRA") issued a notice of reassessment.  Rather than appealing the reassessment, Ms. Baran filed an assignment in bankruptcy.

Can a Secured Debtor Retain A Business' Goodwill?

I was recently involved in an interesting case in which I obtained a receivership order for a secured creditor of an insolvent dentist.This case involved two interesting issues. The first was the need to have the Royal College of Dental Surgeons involved to ensure the protection of the patient's private health information. The second issue involved balancing the secured creditor's right to maintain the value of the goodwill of the dentist's practice with the patient's right to choose the dentist he/she wanted.

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