Financial Services & Restructuring Resources

CCAA: Cross Border Insolvency and Re IMRIS

By Sam Gabor on November 21, 2016

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Advising the Landlord on Tenant Insolvency and Restructuring

By Administrator on October 29, 2015

In ordinary circumstances the commercial landlord-tenant relationship is extremely one-sided. In exchange for what is referred to as “quiet possession”, the tenant owes the landlord a host of monetary and non-monetary obligations and covenants usually detailed in a lengthy and complex commercial lease agreement, breach of which entitles the landlord to exercise various remedies on limited notice including termination, re-entry, distress and the right to recover damages. Subject to The Landlord and Tenant Act (“LTA”) and a few remedial restrictions that developed in antiquity, the lease agreement dictates the landlord-tenant relationship.

Tenant insolvency can significantly alter the dynamics of the lease dictated relationship – in some cases effectively re-writing the lease terms and even reversing legal priorities. To further complicate this, the nature and extent of the alteration of the lease dictated relationship varies depending upon which restructuring tool the tenant is subject to, whether it be private or Court appointed receivership, bankruptcy or debtor in possession restructuring pursuant to filings under either the Bankruptcy and Insolvency Act (“BIA”) or the Companies Creditors Arrangement Act (“CCAA”).

This paper will focus upon the following key landlord considerations when a tenant becomes the subject of different restructuring tools:

  • Impact upon the landlord’s traditional remedies;
  • Occupation rent;
  • Lease disclaimers;
  • Lease assignments; and
  • Other covenant breaches during restructuring.

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About Our Financial Services & Restructuring Practice Group

By Administrator on August 31, 2015

Financial Services and RestructuringWe help negotiate, structure and complete transactions for lenders and borrowers. When difficulties arise, we develop and implement recovery strategies, work-outs and restructurings.

Financial Services & Restructuring has business lawyers and commercial litigators skilled in banking, finance and insolvency.

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A DISINGENUOUS REMEDY: UNPAID FARMERS FISHERMEN AND AQUACULTURISTS LIENS UNDER BIA S. 81.2

By David R.M. Jackson on September 30, 2014

th-jackson-davidOn paper, the special priority afforded to unpaid farmers, fishermen and aquaculturists under s.81.2 of the Bankruptcy and Insolvency Act1 (“BIA”) is an extraordinary lien right. Once the unpaid farmer, fisherman or aquaculturist (“FFA”) satisfies the statutory prerequisites, a lien is created on the purchaser’s inventory in priority over every other charge, save and except 30 day goods rights of unpaid suppliers under BIAs.81.12 (“30 day goods”). That includes priority over employees’ wages.3 It even primes Canada Revenue Agency’s super priority for unremitted source deductions.4

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