Re Indalex Limited 2011 ONCA 265 Case Comment
 

Robin Schwill

Indalex Limited's assets were sold in a liquidating proceeding under the federal Companies' Creditors Arrangement Act  (the "CCAA").  Indalex administered defined benefit pension plans which had substantial deficiencies at the time of the filing, although the company was up to date in making all statutorily mandated payments.  Former employees and the union asserted priority claims over the sale proceeds in respect of Indalex's pension plan deficits giving rise to the question:  Does the statutory deemed trust under Ontario's Pension Benefits Act trump the Court ordered super-priority charge typically granted to a debtor-in-possession (DIP) lender inside CCAA proceedings?  Shockingly, the Ontario Court of Appeal's answer was: "Yes".

On What Legal Basis is a Report Admissable as Evidence?
Farber & Partners Inc. v. Morris Goldfinger et al
 

E. Patrick Shea, CS

On 31 March 2011, Madam Justice Mesbur released her decision in A. Farber & Partners Inc. v. Morris Goldfinger el al. The case involved a motion to expunge a report prepared by A. Farber & Partners Inc. (“Farber”) in its capacity as trustee of various bankruptcy estates on the basis that the report was not admissible as evidence.
 

The report in issue was prepared by Farber in response to a motion brought by Dr. Morris Goldfinger to remove Farber as trustee of various estates on the basis of assertions that Farber had a conflict in administering the estates.

Interplay Between the Limitations Act and Section 38 of the BIA
A Review of Incondo Building Corp. v. Sloan

 

Kate H. Stigler
 

The recent decision of the Ontario Court of Appeal (the “OCA”) in Indcondo Building Corp. v. Sloan provides guidance as to the interplay between the Limitations Act, 2002 (Ontario) (the “Limitations Act”) and section 38 of the Bankruptcy and Insolvency Act (Canada) (the “BIA”) by making it clear that the commencement of bankruptcy proceedings will not restart or toll the limitations clock for creditors who wish to bring actions pursuant to section 38 of the BIA.  This impacts creditor actions in bankruptcies in two important ways:  Firstly, creditors who would otherwise be barred from bringing an action due to the Limitations Act will not be given a second opportunity to do so by virtue of the debtor becoming bankrupt and commencing a proceeding under section 38 of the BIA; second, the decision of the OCA indicates that the limitations clock for actions capable of being assigned under section 38 of the BIA is not tolled upon the debtor becoming a bankrupt; accordingly, creditors will need to act expeditiously post-bankruptcy should they intend to pursue such an action.

Murray Klein Award to be Presented to Dan Dowdall - May 25, 2011
 

Following Murray Klein's untimely and unexpected  passing  in the summer of 2007 the OBA Insolvency Law Section established  an award in his name and in recognition and in commemoration of his unquestionable integrity, decency and selflessness with respect to the practice of law and, in particular, with regard to insolvency law.

Prior to his  passing   Murray was one of the longest serving members of OBA insolvency Law Executive and during his career, while working in the Legal Services Branch of the Ontario Ministry of Labour and at the Ministry of Finance, Murray was invaluable in assisting  insolvency lawyers and practitioners alike with any questions that they may have had with regard to various issues related to the government of Ontario.

The Murray Klein Award has been awarded in two previous instances to equally well regarded insolvency lawyers, Harry Fogul (Aird Berlis) and Robin Walker (Gowlings). Dan Dowdall follows in that illustrious heritage of the previous recipients having started his legal career at the highly regarded insolvency law firm Harries Houser and continuing his  insolvency practice over the course of 30 years at two major Toronto law firms. 

Please join us in honouring Dan on Wednesday May 25, 2011 at The Albany Club,  for his selfless dedication and devotion to the practice of insolvency law and to the respect and decency  by which Dan  interacted with other insolvency lawyers, practitioners, litigants, members of the judiciary and all others whom Dan worked with over the course of his well-respected career.

Commercial List Users' Committee Annual Retreat - June 2, 2011
 

Make a day of it and be sure to join us for the annual retreat, educational program and dinner hosted by the Commercial List Users' Committee, the OBA Insolvency Law Section and OAIRP at the Richmond Hill Golf Club on Thursday June 2, 2011.

In keeping with past years, the educational program offers a full morning of topical panels where leading members of the bar and Commercial List judges engage in an open and interactive dialogue about recent developments and issues that are relevant to the insolvency and restructuring practice area. The educational program is followed by golf/tennis or other leisure activities in the afternoon with the year end reception and dinner in the evening. We look forward to seeing you on June 2.

Editors:
Joseph Bellissimo
Gus Camelino
Domenico Magisano