Alberta Court of Queen’s Bench Reiterates Court’s Discretion to Grant an Interim Financing Charge “Super-Priority” Status in the Face of a Deemed Trust Under the Income Tax Act

Walker W. MacLeodAudrey Bouffard-Nesbitt

This blog’s most recent post considered the Supreme Court of Nova Scotia’s June 2017 decision of Rosedale Farms Limited, Hassett Holdings Inc., Resurgam Resources (Re) (“Rosedale”) where the Court held that a deemed trust for unremitted withholdings under sections 227(4) and 227(4.1) of the Income Tax Act (Canada) (the “ITA”) had priority over a charge for interim financing granted by a court pursuant to section 50.6 of the Bankruptcy and Insolvency Act (Canada) (the “BIA”). In Rosedale, the interim financing lender relied on the 2007 Alberta Court of Queen’s Bench decision in Temple City Housing Inc. (Companies’ Creditors Arrangement Act) (“Temple”), asserting, among other things, that a deemed trust is in substance a security interest and can therefore be subordinated to an interim financing charge pursuant to section 50.6 of the BIA (the “BIA”). The Nova Scotia Supreme Court disagreed with the decision in Temple and held that the language creating the deemed trust in the ITA clearly provides that a deemed trust created thereunder takes priority over any other security.  As a result, and despite the terms of the DIP order issued in the case, the Canada Revenue Agency (“CRA”) had priority over the DIP lender.

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Deemed Trust for Unremitted Withholdings Trumps Interim Financing Charge in Recent Nova Scotia Supreme Court Decision

Audrey Bouffard-Nesbitt

In the recent decision of Rosedale Farms Limited, Hassett Holdings Inc., Resurgam Resources (Re) (“Rosedale”), the Supreme Court of Nova Scotia held that a deemed trust for unremitted withholdings under sections 227(4) and 227(4.1) of the Income Tax Act (Canada) had priority over a charge for interim financing granted by a court pursuant to section 50.6 of the Bankruptcy and Insolvency Act (Canada) (the “BIA”). The decision in Rosedale turns on an interpretation of First Vancouver Finance v Canada (National Revenue) (“First Vancouver”) and is in conflict with the Alberta Court of Queen’s Bench interpretation of First Vancouver in its 2007 decision Temple City Housing Inc. (Companies’ Creditors Arrangement Act) (“Temple”). In contrast to Temple, Rosedale concludes that First Vancouver is authority for the proposition that a deemed trust for unremitted withholdings takes priority over all security interests, including a security interest granted by a court in favour of an interim financing lender in restructuring proceedings.

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Alberta Court clarifies ranking of linear property tax claims

Walker W. MacLeodFiruz Rahimi

A recent unreported decision in the Alberta Court of Queen’s Bench has clarified the ranking of certain municipal tax claims against a bankrupt in Alberta.  In Bank of Nova Scotia et al v. Virginia Hills Oil Corp. et al, the Court accepted arguments by a court-appointed receiver and trustee in bankruptcy that unpaid pre-filing linear property taxes owed by a debtor company to a municipality are unsecured claims for the purposes of the Municipal Government Act.

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Key Employee Retention Plans in CCAA Proceedings

Walker W. MacLeod

Key Employee Retention Plans are a common feature in restructurings occurring under the Companies’ Creditors Arrangement Act.  The basis for a KERP is simple and easily explainable.   The value of almost any debtor company will be maximized through a sale or restructuring transaction that preserves it as a going-concern business and avoids a piecemeal and costly liquidation of assets at depressed prices.   Employees are critical to maintaining going-concern value but may be anxious about their future role in an insolvent entity or lack motivation to continue employment with a struggling debtor, particularly if the employees hold an equity position in the company that is likely to be wiped out on exit from the insolvency proceedings.  These concerns can be reasonably expected to cause employees to cease employment and result in a loss of value to the business.  A secured retention payment buttresses this by incentivizing employees, notwithstanding the inherent uncertainty in a CCAA filing, to continue employment and maintain the value of the enterprise for the ultimate benefit of creditors and other stakeholders.

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Rate Floors in Commercial Loan Agreements

Peter BirknessAndrew Foster

Over the past few years, rate floors have become standard in commercial loan agreements. Following the 2008 financial crisis, lending rates dropped significantly and a sustained period of low interest rates has followed. There have even been instances of interest rates for certain currencies becoming negative. To protect against negative interest rates, the lending market has adopted rate floors, particularly with respect to LIBOR rates. The purpose of rate floors is to give lenders a guaranteed return on their loans even in the event that rates become negative. In Canada, this development has resulted in floors on LIBOR and CDOR (Canadian Dollar Offered Rate) rates.

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Court of Appeal upholds Redwater decision

Sean CollinsWalker W. MacLeodPantelis Kyriakakis

In a majority two to one decision released on April 24, 2017, the Alberta Court of Appeal has upheld the lower court ruling in Re Redwater Energy Corporation.  The trial decision in Redwater, which settled a lengthy conflict between the Alberta Energy Regulator and insolvency professionals on the proper interpretation of section 14.06 of the Bankruptcy and Insolvency Act (Canada), was previously analyzed in detail here.  The majority judgment confirms the proposition that a receiver or trustee is entitled to disclaim or not take possession of a debtor’s interest in select AER licensed properties that have no value due to abandonment obligations and to vend the remaining licensed assets that have value.  By extension, the AER cannot refuse a license transfer solely because abandonment and reclamation obligations associated with the disclaimed properties will go unperformed.  The proceeds of sale must then be disbursed in accordance with the priority regime established in the BIA.  In more simple terms, the decision confirms that a court-officer appointed under federal legislation may pick and choose the realizable property in an estate in order to maximize the recovery available for creditors without undue interference from a provincial regulator.

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Federal Court addresses maritime lien issues in OW Group bankruptcy proceedings

Warren B. Milman

In a recent decision, the Federal Court of Appeal had occasion to consider a claim at the crossroads of bankruptcy and maritime law (ING Bank N.V. v. Canpotex Shipping Services Limited et al., 2017 FCA 47).   Normally in Canada, bankruptcy cases are adjudicated in the superior courts of the respective provinces.  This case was unusual because, although also a bankruptcy case, it fell under the Federal Court’s jurisdiction over admiralty matters.

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Success Fees and Super-Priority Charges in CCAA Proceedings

Walker W. MacLeodAndrew Foster

The restructuring of Sanjel Corporation and its affiliates (previously discussed here) continues to provide interesting developments on the application and interpretation of the Companies’ Creditors Arrangement Act.  In a recent decision in the case, the Court of Queen’s Bench of Alberta interpreted an initial order so as to limit the super-priority of a financial advisor’s court-ordered charge to the priority amount specified in the order.  In doing so, the court rejected a unique argument made by the financial advisor that attempted to classify the amount claimed beyond the court-ordered charge as an obligation that had to be paid due to certain other provisions of the order.  The advisor’s application for leave to appeal was subsequently dismissed in a decision that is available here.

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BC Supreme Court Subordinates Related Party’s Claims

Warren B. MilmanKate Macdonald

On January 25, 2017, the British Columbia Supreme Court rendered its decision in Tudor Sales Ltd. (Re), 2017 BCSC 119.  The case deals with an attempt to  recharacterize a creditor’s claim in bankruptcy from debt to equity and the subordination of that claim under sections 137, 139 and 140.1 of, the Bankruptcy and Insolvency Act (Canada).  Those sections provide that the claims of creditors who are not at arm’s length from the bankrupt, silent partners (i.e., lenders who receive an interest rate varying with profits or representing a share of profits) and “equity claims,” may be postponed until all other claims have been satisfied.

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Third-Party Releases in CCAA Plans of Compromise and Arrangement

Walker W. MacLeodAndrew Foster

It is well-established that Canadian courts have jurisdiction to approve a plan of compromise or arrangement under the Companies’ Creditors Arrangement Act that includes releases in favour of third-parties.  The leading decision on the issue remains Metcalfe & Mansfield Alternative Investments II Corp., which arose in response to the liquidity crisis that threatened the Canadian market in asset-backed commercial paper after the U.S. sub-prime mortgage collapse in 2007.  The general rule, as established by the Ontario Court of Appeal, is that third-party releases must be reasonably connected to the restructuring in order for a plan that contains them to be sanctioned.

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