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BANKRUPTCY AND BUSINESS FAILURE: WHY THE STATISTICS UNDOUBTEDLY DO NOT TELL THE FULL STORY


bankruptcy and business

Bankruptcy and Business: Introduction

As a licensed insolvency trustee, (previously referred to as a trustee in bankruptcy), my role involves assisting individuals and businesses in managing the complexities associated with entrepreneurship. The conclusion of a business often occurs without fanfare; it is not typically marked by formal announcements or celebratory farewells but rather unfolds quietly amidst the ongoing activity of the market. Despite rising bankruptcy and business failure through the recorded insolvency numbers, many businesses close without it showing up in the insolvency statistics, revealing a deeper truth about economic resilience.

For every corporate insolvency file that I administer, be it the legal process of a bankruptcy protection financial restructuring or a bankruptcy liquidation, there have been many more inquiries from entrepreneurs where the best advice I can give is rather than spending money on corporate bankruptcy, just shut down the business yourself.

In this Brandon’s Blog, which is aimed at Canadian entrepreneurs and their professional advisors, be they financial advisors, lawyers or accountants, I explore the complexities of bankruptcy and business failures, where one fact stands out: the numbers can be deceiving. The current rise in reported business insolvencies has raised eyebrows. But what’s behind these figures? Many businesses close their doors without formally declaring bankruptcy.

Bankruptcy and Business: Types of Business Structures Affected by Bankruptcy

It is essential to understand the different types of business structures that can be affected by or are eligible for bankruptcy. In this section, I’ll explore the impact of bankruptcy on sole proprietorships, partnerships, and incorporated companies.

Sole Proprietorships

A sole proprietorship is a business owned and operated by one individual personally. In the event of bankruptcy, the sole proprietor’s personal assets, including their home, savings, and other personal property, can be used to pay off business debts. This is because, from a legal perspective, the business and the individual are considered one and the same.

Partnerships

A partnership is a business owned and operated by two or more individuals. In the event of one or more partners filing for personal bankruptcy, the partnership’s assets are typically divided among the partners, and each partner is responsible for paying off their share of the debts. However, if one partner files for bankruptcy protection, then the partnership is automatically dissolved. If one partner is unable to pay their share, the other partners are responsible for paying off the remaining business debts.

Incorporated Companies

An incorporated company, also known as a corporation, is a separate legal entity from its shareholders. In the event of bankruptcy, as the corporation is a separate entity, the corporation’s assets are typically liquidated to pay off its debts, and the shareholders are not personally responsible for paying off the debts. However, if the corporation is insolvent, the shareholders may still be at risk of losing their investment.

Key Takeaways

  • Sole proprietorships: The business and the individual are considered one and the same, and personal assets can be used to pay off business debts.
  • Partnerships: Partners are responsible for paying off their share of the debts, or alternatively, each partner is responsible for paying off the entire amount of all debts. If one partner is unable to pay, and especially if one or more partners file for personal bankruptcy, the other partners are responsible for paying off the remaining business debts.
  • Incorporated companies: The corporation’s assets are typically liquidated to pay off its debts, and shareholders are not personally responsible for paying off the debts, but may still be at risk of losing their investment.

Why Understanding Business Structure is Important

Understanding the type of business structure you have is essential in the event of insolvency, as it influences the appropriate debt relief solution that can be developed and executed. The relationship between bankruptcy and your business structure will affect how your assets are managed and how your debts are settled. For instance, if you operate as a sole proprietorship, you may be personally liable for the repayment of business debts. In contrast, if your business is incorporated, your personal assets are typically safeguarded from creditors.

Bankruptcy can impact any business structure; sole proprietorships, partnerships, and corporations. It is important to comprehend the specific business structure you operate under and the implications a bankruptcy protection filing may have on both you and your business. For Canadian entrepreneurs facing challenges with business debt, it is advisable to consult a licensed insolvency trustee to explore available options and make informed decisions regarding your financial situation.

Although parts of the balance of this article will focus on the corporate business structure, most will also be applicable to Canadian business regardless of the business structure.

bankruptcy and business
bankruptcy and business

Understanding Bankruptcy and Business in Canada: A Guide for Businesses

As a Canadian entrepreneur, it is important to recognize that operating a business involves various risks and challenges. Even with diligent management, financial difficulties may arise that jeopardize the viability of your company. In these circumstances, it is essential to be well-informed about the options at your disposal. One widely recognized and effective solution in such situations is corporate bankruptcy.

What is Corporate Bankruptcy in Canada?

Corporate bankruptcy, arising from a corporate insolvency, occurs when a business is unable to pay its overwhelming debts as they become due – that is the definition of an insolvent company. This can happen due to a variety of reasons, including poor cash flow management, increased competition, unexpected expenses, or even a downturn in the economy. When a business becomes insolvent, it may be forced to cease operations, leading to financial losses for its creditors, employees, and shareholders.

Types of Bankruptcy For Corporations in Canada

There are two main types of corporate bankruptcy in Canada: proposal and bankruptcy.

  • Proposal: A corporate proposal is an alternative to bankruptcy. It is a formal payment plan under the Bankruptcy and Insolvency Act (Canada) BIA that allows a business a period of time to settle its debts with its creditors. The proposal is presented to the creditors, who then vote on whether to accept it. If accepted, the proposal then goes to court for approval. When the court approves the proposal, it then is binding on the debtor business and the creditors.

Once the proposal becomes binding, the business can restructure its debt and continue operating by making the monthly payments to the Trustee that it promised to make for the benefit of its creditors. This is otherwise known as a corporate restructuring plan.

  • Bankruptcy: Bankruptcy is also a formal process under the BIA where the business assets are liquidated by selling off its assets. The Trustee then uses the net proceeds of sale to pay for the cost of the corporate bankruptcy process and then to distribute what remains to the unsecured creditors on a pro rata basis according to their claims.

Benefits of Corporate Bankruptcy in Canada

While bankruptcy protection may seem like a last resort, it can actually be a beneficial option for businesses facing financial difficulties. Some of the benefits of corporate bankruptcy in Canada include:

  • Protection from Creditors: Bankruptcy provides a stay of proceedings, which means that creditors cannot take or continue legal action against the business or its assets.
  • Reorganization: Bankruptcy allows businesses to restructure their debt and reorganize their operations to become more sustainable.
  • Fresh Start: Bankruptcy can provide a fresh start for businesses, allowing them to emerge from insolvency and start anew.

When to Consider Corporate Bankruptcy in Canada

If your business is experiencing financial difficulties, it’s essential to seek professional advice from a licensed insolvency trustee. Here are some signs that may indicate it’s time to consider corporate bankruptcy:

  • Cash Flow Problems: Cash flow problems can indicate underlying financial issues within a business. If a company is consistently struggling to pay its bills on time, it is essential to investigate the root causes of this cash flow challenge, as it may reflect broader financial health concerns.
  • High Debt Levels: When a business is burdened with significant debt and faces challenges in meeting its repayment obligations, considering bankruptcy may be a viable option to explore.
  • Loss of Key Customers or Suppliers: Loss of key customers or suppliers can indicate underlying issues within a business that require attention. It is important to analyze the reasons behind this loss, as it may reflect broader challenges affecting the organization’s performance and stability. Addressing these issues promptly can help mitigate potential negative impacts on operations and profitability.

Corporate bankruptcy in Canada is a multifaceted process that can present challenges for businesses in financial distress. However, it can serve as an effective mechanism for companies to address their financial challenges and restructure. By familiarizing themselves with the available options and consulting with qualified professionals, businesses can effectively navigate the bankruptcy process, potentially emerging in a more resilient and sustainable position. Entrepreneurs in Canada facing significant business debt are encouraged to reach out to a licensed insolvency trustee to explore their available options.

Bankruptcy and Business: The Overlooked Landscape of Business Closures

Understanding Bankruptcy and Business Insolvency Filing vs. Closure

Have you ever wondered the difference between a business going bankrupt and closing its doors? It’s important. Business insolvency is the financial condition that the business cannot pay all of its debts as they come due. Business bankruptcy is a legal process where a business files for bankruptcy in order to deal with the distribution of its assets among its creditors in a fair and orderly fashion, as far as the money can go. On the other hand, closure can happen for many reasons, like poor management or market changes. Bankruptcy and business failure many times go hand in hand, but just as often, they don’t.

Reasons For Bankruptcy and Business Failure

Understanding the Common Causes

As a licensed insolvency trustee, I’ve seen firsthand the devastating impact of business bankruptcy on entrepreneurs, employees, and the economy as a whole. While no business is immune to financial difficulties, understanding the common reasons for business bankruptcy can help entrepreneurs take proactive steps to mitigate risks and avoid insolvency.

In this section, we’ll explore the three main categories of reasons for business bankruptcy: Financial Challenges, Operational Issues, and External Factors.

Financial Challenges

Financial challenges are often the most obvious reason for business bankruptcy. Some common financial challenges that can lead to insolvency include:

  • Cash flow management issues: Inability to manage cash flow can lead to delayed payments, missed deadlines, and ultimately, insolvency.
  • High debt levels: Carrying too much debt can put a significant strain on a business’s finances, making it difficult to meet financial obligations.
  • Inadequate funding: Insufficient startup capital or ongoing funding can hinder a business’s ability to grow and operate successfully.
  • Poor budgeting: Failing to create a realistic budget or failing to stick to it can lead to financial difficulties.

Operational Issues

Operational issues can also contribute to business bankruptcy. Some common operational issues that can lead to insolvency include:

  • Inefficient operations: Poorly managed operations can lead to wasted resources, increased costs, and decreased productivity.
  • Lack of scalability: Failing to adapt to growth or changes in the market can lead to operational inefficiencies and financial difficulties.
  • Poor management: Ineffective leadership or management can lead to poor decision-making, which can ultimately result in insolvency.
  • Failure to innovate: Failing to innovate or adapt to changes in the market can lead to stagnation and financial difficulties.

External Factors

External factors can also play a significant role in business bankruptcy. Some common external factors that can lead to insolvency include:

  • Economic downturns: Economic recessions or downturns can lead to reduced consumer spending, decreased demand, and financial difficulties.
  • Competition: Increased competition can lead to reduced market share, decreased revenue, and financial difficulties.
  • Regulatory changes: Changes in regulations or laws can lead to increased costs, decreased revenue, and financial difficulties.
  • Natural disasters: Natural disasters or other external events can lead to significant financial losses and insolvency.

By understanding the common reasons for business bankruptcy, entrepreneurs can take proactive steps to mitigate risks and avoid insolvency. This includes creating a solid business plan, managing cash flow effectively, and staying adaptable to changes in the market. As a licensed insolvency trustee, I’ve seen firsthand the devastating impact of business bankruptcy on entrepreneurs and the economy. By being aware of the common causes of business bankruptcy, entrepreneurs can take steps to avoid insolvency and achieve long-term success.

Statistical Insights

Recent statistics highlight an important trend that merits our attention. Following the 2008 financial crisis, we saw a notable rise in business closures, with many not opting to file for bankruptcy. This is quite surprising, isn’t it?

In the first quarter of this year, Canada experienced 2,003 insolvencies, which included 1,599 bankruptcies and 404 proposals. This marks an 87 percent increase compared to the same quarter last year and represents the highest number of insolvencies in the first three months since early 2008.

Additionally, Statistics Canada provides insights into active businesses by tracking their monthly payroll filings with the Canada Revenue Agency (CRA). Due to a slight delay in data reporting and analysis, the latest figures are from January, showing there were 936,327 active businesses in Canada. However, there were also 43,121 closures, being companies that reported employees to the CRA in December 2023 but did not in January 2024.

“The real tragedy of business closures hides in the shadows of insolvency statistics.”

In light of all this, understanding that a business can disappear without ever declaring bankruptcy is crucial. It paints a clearer picture of our economy. Whether due to management issues or other challenges affecting the viability and solvency of the business, this is a landscape that deserves attention. What are your thoughts on this?

bankruptcy and business
bankruptcy and business

Bankruptcy and Business: The Hidden Truth Behind Business Closures

Understanding the Landscape of Business Failures

Did you know that the actual number of business closures is likely much higher than what insolvency figures reveal? It’s a shocking reality. Business insolvencies are soaring to heights we haven’t seen since the financial crisis of 2008. But here’s the catch: these numbers only represent a fraction of the businesses that are truly shutting down each year.

Why Do Businesses Fail?

Let’s dig into some reasons why businesses fail:

  • Lack of Cash Flow: Many businesses struggle with cash management. Without enough cash coming in, they can’t pay bills.
  • Poor Decision-Making: Sometimes, choosing the wrong direction can lead to disaster. It’s like sailing without a compass.
  • Competition: It’s a wild world out there. If you can’t keep up with your competitors, you may find yourself left behind.

The Significance of Measuring Failures

When you think about it, why are these insolvency numbers so important? They give us a glimpse into the broader economic conditions. However, they don’t paint the full picture. Countless businesses fold without ever going through the insolvency process. This raises the question: how can we better support these struggling businesses?

What Can Be Done?

We need to think creatively. Here are some strategies to consider:

  1. Strong Cash Flow Management: Maintaining robust financial practices can prevent major setbacks.
  2. Seek Guidance: Consulting with business mentors can provide invaluable insights.
  3. Flexibility is Key: Being adaptable to changing market demands can keep a business afloat.

A detailed examination of these factors reveals that each statistic embodies a narrative. Gaining insight into these dynamics enhances our understanding of the current business environment and facilitates the development of more effective solutions.

Bankruptcy and Business: Understanding Business Failures vs. Insolvency Rates

The current trend of rising bankruptcy and business failures can be alarming. We’re seeing numbers that remind us of the financial crisis back in 2008. But here’s the kicker: the official insolvency figures don’t tell the whole story. They only reflect a fraction of the businesses that close each year. So, what’s going on?

The Hidden Truth Behind Business Closures

When a business shuts down, sometimes bankruptcy and business do not go together. The business is insolvent, but as I stated in the introduction to this bankruptcy and business Brandon’s Blog, sometimes the wisest choice for owners is simply to close their doors rather than declare bankruptcy. Of course, in doing so, the business must treat its employees fairly in making sure that all wages and vacation pay are paid up in full, the books and records should be finalized, any leased equipment or consignment goods returned to their owners and all final government returns are filed.

A voluntary business closure raises a few questions:

  • Are entrepreneurs running away from the stigma of bankruptcy and business failure?
  • Do businesses fear the legal complexities of bankruptcy?

The Reality of Business Closures

Many businesses succumb to market pressures, competition, or changing consumer preferences. So even if a business doesn’t file for bankruptcy, it’s still part of a broader trend of bankruptcy and business failure.

Here are some factors contributing to these closures:

  1. Economic downturns: A slowdown can hit sales hard.
  2. Shifts in consumer behaviour: Staying relevant is crucial.
  3. Operational inefficiencies: Sometimes, a business just can’t keep up.

The data presented reflects not merely statistics, but real stories of individuals whose dreams and aspirations have faced significant challenges. Recognizing this broader context is crucial for comprehending the current realities of the business landscape.

bankruptcy and business
bankruptcy and business

Bankruptcy and Business: Understanding Business Failures Beyond Insolvency Numbers

Every year, countless businesses close their doors. But did you know most failures don’t make it to the insolvency list? It’s a striking fact. There’s a lot more happening beneath the surface.

The Real Picture of Business Failures

Business insolvencies are currently rising, reaching levels reminiscent of the 2008 financial crisis. However, these numbers only tell part of the story.

  • Insolvency counts are just the tip of the iceberg. Many businesses close without ever filing for bankruptcy.
  • They might choose to liquidate assets instead, avoiding formal insolvency procedures.
  • Some simply shutter their operation quietly, leaving no trail that stats can follow.

Why Do They Close?

Now, let’s dig deeper. Why do businesses close? Here are a few key reasons:

  1. Market changes: Trends shift rapidly. A product that sells today may be yesterday’s news tomorrow.
  2. Lack of funds: Often, owners run out of cash. It’s not always about being in debt.
  3. Poor planning: Without a solid business plan, success becomes a game of chance.

It’s critical to understand these points. When we consider the broader picture, it becomes clear that the narrative of bankruptcy and business failure encompasses much more than insolvency figures. So, when you hear those numbers, remember: behind every statistic, there’s a unique story. It’s worth exploring.

Bankruptcy and Business Behind the Scenes: A Personal Journey with Business Failure

Let me describe to you, with no names of course, about an entrepreneur who recently consulted with me. He truly believed in his retail business. It was welcoming, colourful, and brimming with potential. He had dreams of providing the best customer service in town. But, not long after the grand opening, he saw that it wasn’t working out. The foot traffic was lower than he anticipated, and the expenses kept piling up. He had to close the doors within a year of opening. It felt like a hard punch to his gut.

Lessons Learned

From this experience, he learned a few invaluable lessons:

  • Resilience is Key: Every setback can teach us something. We just need to be open to those lessons.
  • Adaptability Matters: The ability to pivot quickly can save a business. If he had been more flexible and had some staying power, perhaps he could have found a way to make it work.
  • Not All Bankruptcy and Business Failures Reflect Capability: Just because a venture doesn’t succeed it doesn’t mean that the person is not capable as an entrepreneur.

The Emotional Toll

Closing his store was not just a business decision; it hit him hard on a personal level. There’s a saying:

“Failure isn’t the opposite of success; it’s part of success.”

This resonated with him throughout the process. He felt a profound sense of loss—not just for his dream, but for his team and the community, albeit small, that had begun to form around his business. It’s important to recognize that every business closure affects many lives.

He will cherish the memories, good and bad. We often think of success as the ultimate goal. However, failures

can be just as important. After all, they prepare us for the next big opportunity.

Bankruptcy and Business: The Economic Ripple Effect of Silent Failures

Have you ever stopped to think about the impact of a business closing its doors quietly? It’s alarming. Each silent closure sends ripples through our communities. But how exactly does this happen?

Understanding the Broader Economy

When a business goes unnoticed, its effects are profound. For small towns and cities, local businesses are often the lifeblood of the economy. They provide jobs and foster a sense of community. But when they fail, a series of consequences unfold.

  • Potential job losses: Every unnoticed closure often results in job losses. It’s estimated that thousands of jobs are impacted as small businesses close each year.
  • Supply chain impacts: Smaller firms are interwoven into larger supply chains. When they disappear, disruptions occur, affecting many others reliant on their goods or services.

A Community Heartbreak

The silence surrounding these closures can be deafening.

“Every business closure is a community heartbreak.”

This isn’t just a catchy phrase; it’s the reality for many.

Large corporations may withstand economic struggles, but small businesses often can’t. Imagine a local diner you frequently visit, or a beloved independent bookstore. If these establishments close, the repercussions extend beyond just lost revenue. They can alter job security and change local culture.

We often overlook just how many jobs depend on these small firms. Have you considered what happens to job seekers when they vanish?

bankruptcy and business
bankruptcy and business

Bankruptcy and Business: Preventing the Silent Nightmare of Business Closure

We all know that running a business can feel like navigating through a storm. Sometimes, even the most resilient enterprises can face economic downturns that threaten their very existence. So, how do we ensure survivability? Here are some strategies to consider:

1. Embrace Innovation

  • Adapt to Market Trends: Staying ahead means constantly evaluating what’s working and what’s not. Are your customers shifting their preferences? Innovate to meet their needs.
  • Leverage Technology: Digital tools can streamline operations and reach wider markets. Tools like social media and e-commerce platforms can significantly boost visibility.

2. Cultivate Adaptability

We must understand that adaptability is key. If we don’t learn and pivot, we risk stagnation. Have you ever noticed how quickly the business landscape shifts? Continuous learning is not just a phrase; it’s a necessity. Training programs and workshops can enhance our expertise.

3. Build Community Support

One of the most effective strategies is building a strong support system. Entrepreneurs often feel isolated—this needn’t be the case. Engaging in community networks or mentorship programs can provide valuable guidance.

Imagine a gardener tending to a plant. It needs nurturing, sunlight, and sometimes a bit of pruning. Similarly, businesses thrive in supportive environments where they can learn and adapt. We need to reinforce this sense of community, where sharing experiences can lead to encouragement and growth.

Finally, I want to acknowledge that the journey is indeed tough. Yet, it is essential to focus on personal resilience. Everyone faces challenges. But through understanding and support, we can not only overcome but also flourish!

I urge you to seek out success stories, too. Businesses that have pivoted successfully often serve as a beacon of hope. They illuminate paths we never considered. By sharing our experiences and challenges, we help each other to thrive.

Bankruptcy and Business: Shining a Light on Shadows

As we’ve explored the complexities of business failures, one fact stands out: the numbers can be deceiving. The current rise in business insolvencies has raised eyebrows. But what’s behind these figures? Many businesses close their doors without formally declaring bankruptcy. This distinction is critical for understanding the health of our economy. Not all failures are recorded in official statistics. Every year, countless ventures close down quietly, leaving little trace. Each shuttered business represents dreams, investments, and hard work.

As we wrap up our discussion, it’s clear that *business failures* are more common than we often admit. Many business owners might feel isolated, and that’s understandable. But recognizing the reality of these failures is essential. It reminds us that every entrepreneur’s journey is difficult yet filled with opportunities to learn and grow.

Here are some key points we’ve explored:

  1. The numerous factors that contribute to business closures.
  2. The impact of community support on a business’s survival.
  3. How understanding failures can lead to future successes.

    bankruptcy and business
    bankruptcy and business

Bankruptcy and Business in Canada: FAQ

1. What is the difference between a business closing and a business going bankrupt?

Business closure and bankruptcy are distinct concepts in the realm of business operations.

Business closure refers to the termination of a business’s operations for various reasons. These reasons may include factors such as ineffective management, shifts in market conditions, or a deliberate choice by the owner to cease operations.

On the other hand, business bankruptcy is a legal process defined by the BIA in Canada. This occurs when a business officially declares its inability to meet its financial obligations. The bankruptcy process typically involves either restructuring debts through a formal proposal or liquidating business assets to repay creditors.

It is important to note that while bankruptcy often results in the closure of a business, not all closures are accompanied by bankruptcy proceedings. A business can close without filing for bankruptcy, opting instead to liquidate its assets and settle any outstanding debts on its own.

2. What are the main types of corporate bankruptcy in Canada?

Canada provides two main avenues for corporations encountering bankruptcy:

  • Proposal: This option involves submitting a formal payment plan to creditors for their approval. If the proposal is accepted and subsequently sanctioned by the court, the business can restructure its debts, continue its operations, and repay creditors over an extended period.
  • Bankruptcy: In this scenario, the corporation liquidates its assets to settle debts with creditors. The proceeds from the asset sales are allocated to creditors, starting with secured creditors, followed by a proportional distribution of any remaining funds to unsecured creditors.

3. What are some common reasons for business failure?

Business failure can result from various issues that can be categorized into three main areas:

Financial Challenges:

  • Poor cash flow management
  • High levels of debt
  • Insufficient funding
  • Ineffective budgeting practices

Operational Issues:

  • Inefficient operational processes
  • Inability to scale operations
  • Subpar management practices
  • Lack of innovation

External Factors:

  • Economic downturns
  • Heightened competition
  • Changes in regulations
  • Natural disasters

4. Why is the number of business closures likely higher than official insolvency statistics suggest?

Many businesses choose to close their doors without formally filing for bankruptcy. This could be due to several reasons:

  • Avoiding the stigma of bankruptcy: Some entrepreneurs may perceive bankruptcy as a personal failure and opt for a quiet closure.
  • Complexity and cost of bankruptcy proceedings: The legal processes involved in bankruptcy can be daunting and expensive, deterring some businesses.
  • Strategic decision to liquidate independently: Owners may decide to manage the closure process themselves, selling assets to settle debts outside of formal insolvency proceedings.

5. What are the economic consequences of unrecorded business closures?

Unrecorded closures have a significant impact on the economy:

  • Job losses: Closures, whether reported or not, often lead to job losses, impacting individuals, families, and communities.
  • Supply chain disruptions: Small businesses are often integral to larger supply chains. Their closures can disrupt these networks, impacting other businesses reliant on their goods or services.
  • Reduced economic activity: Closures reduce overall economic activity in communities, impacting local spending, tax revenue, and overall economic health.

6. What are some strategies to help businesses avoid closure?

  • Embrace innovation: Adapting to market trends, leveraging technology, and developing new products or services can help businesses remain competitive.
  • Cultivate adaptability: Continuous learning, training, and willingness to adjust strategies can improve resilience in the face of change.
  • Build community support: Engaging with local networks, seeking mentorship, and fostering collaboration can provide valuable resources and guidance.
  • Prioritize financial management: Strong cash flow management, responsible budgeting, and careful debt management are crucial for business stability.

7. How can we better understand the true landscape of business closures?

  • Improved data collection: Implementing better tracking mechanisms to capture closures beyond formal insolvency filings could provide a more accurate picture of business failure rates.
  • Research and analysis: Studying the reasons behind unrecorded closures can offer insights into common challenges and potential solutions.
  • Open dialogue and awareness: Encouraging entrepreneurs to share their experiences, both successes and failures, can normalize conversations about business closure and facilitate learning.

8. What is the key takeaway from understanding the difference between business closures and bankruptcy?

Recognizing that business closures are more prevalent than official insolvency statistics indicate is crucial. It highlights the challenges faced by entrepreneurs and emphasizes the need for support systems, innovation, adaptability, and sound financial management to foster business success and resilience. Acknowledging the silent failures allows for a more accurate understanding of the economic landscape and can help policymakers and support organizations develop strategies to address these challenges and better support businesses.

Bankruptcy and Business: Conclusion

So, why is it important to acknowledge these failures? It’s simple. They are not just numbers on a report; they are the culmination of hard work, dreams, and sometimes missteps. When a business fails, it can feel like a dark cloud, but it can also be the start of something new.

I hope you enjoyed this bankruptcy and business Brandon’s Blog. Do you or your company have too much debt? Are you or your company in need of financial restructuring due to distressed real estate or other reasons? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or someone with too much personal debt.

You are worried because you are facing significant financial challenges. It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding the bankruptcy process. We can get you debt relief freedom using processes that are a bankruptcy alternative.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. The way we take the load off of your shoulders and devise a plan, we know that we can help you.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.

That is why we can develop a restructuring process as unique as the financial problems and pain you are facing. If any of this sounds familiar to you and you are serious about finding a solution, contact the Ira Smith Trustee & Receiver Inc. team today.

Call us now for a free consultation. We will get you or your company back on the road to healthy stress-free operations and recover from the pain points in your life, Starting Over, Starting Now.

The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.

bankruptcy and business
bankruptcy and business
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DEMYSTIFYING COMPANY LIQUIDATION: MASSIVE INSIGHTS FROM ONTARIO’S LEGAL JOURNEY

company liquidation

Company Liquidation: Introduction

Company liquidation involves navigating a myriad of legal and financial obligations, particularly when a company is deemed insolvent. This process requires a thorough understanding of the duties and responsibilities of company directors, legal obligations in insolvency proceedings, and the roles of licensed insolvency trustees and the Court. Identifying insolvent companies and differentiating between secured and unsecured creditors are also fundamental aspects of the liquidation process.

In the fast-paced and competitive world of business, trust and collaboration are often the key ingredients for success. The recent legal case of Srivastava v. DLT Global Inc. 2023 ONSC 7103 (CanLII) serves as a powerful reminder of just how crucial these elements are in maintaining a thriving business. By delving into the details of the case, I explore the consequences of a breakdown in trust and collaboration and highlight the lessons that can be learned from this real-life scenario.

Join in this Brandon’s Blog Post as I explore the decision-making process in company liquidation, from understanding the options to implementing the liquidation strategy. We will also discuss the personal and legal ramifications, covering topics such as personal liability for business owners and directors, voluntary versus compulsory liquidations, and the voluntary liquidation process.

Whether you’re a business owner facing insolvency or a professional seeking insights into company liquidation, this article will provide valuable information to navigate the complex landscape of liquidation proceedings in Ontario.

Company Liquidation: Understanding the Basics

Company liquidation is a critical process for closing a limited company that either can no longer meet its financial obligations or if solvent, cannot continue due to other reasons. When a business undergoes liquidation, its assets are sold off, and the proceeds are used to pay back outstanding creditors.

There are two predominant types of company liquidation: voluntary and compulsory. Voluntary liquidation, which may be initiated by the shareholders or a court order, is often chosen when a company is solvent but burdened by debts. Compulsory liquidations happen through a court order when a company can either no longer pay its debts or, management is dysfunctional and can no longer work together to properly wind up the corporation and its business.

Liquidation proceedings are typically overseen by a licensed insolvency trustee. Company directors must comply with legal obligations during this process to avoid personal liability, particularly if they have given a personal guarantee for business debts.

A common cause for company liquidation is a significant drop in business, such as the loss of a major contract. Although liquidation can entail substantial costs, options exist even for companies without assets. Business owners must seek expert advice to ensure a smooth transition during the liquidation process. Here’s a simplified overview of the liquidation process:

  1. Decision to liquidate (voluntary or court-ordered)
  2. Appointment of a licensed insolvency practitioner
  3. Asset liquidation
  4. Settlement of debts with creditors
  5. Redemption of shares to the extent there is cash to do so
  6. Dissolution of the company
image of a company owner sitting in the middle of his professional advisers and he is worried because his debt ridden company must now enter a company liquidation
company liquidation

Company Liquidation: Understanding Insolvency in Canada

In Canada, insolvency is a legal term indicating a company’s financial distress, where a business is unable to meet its obligations as they come due, or ceases to pay current liabilities during normal operations. This situation often leads to company liquidation or other forms of bankruptcy proceedings governed by various statutes, including the Bankruptcy and Insolvency Act (BIA), the Winding-up and Restructuring Act, and the Companies Creditors Arrangement Act (CCAA).

Conversely, insolvent companies are subject to the aforementioned insolvency laws, which set out the protective legal framework allowing for a fair and orderly process of winding up a company’s affairs and distributing its assets. Insolvency laws in Canada are designed not only to adjudicate the distribution of company assets but also to provide possible recovery pathways for financially distressed businesses.

Identifying Insolvent Companies

Insolvent companies are characterized by their inability to discharge their financial liabilities as they become due. A more comprehensive view of insolvency includes the scenario where the total liabilities of a company exceed the fair valuation of its assets, suggesting that even the sale of all its assets would not cover the outstanding debts.

It is therefore essential for business owners and company directors to recognize the early signs of insolvency and to understand the consequences it may have for the future of their ventures. Identifying an insolvent company promptly is critical as it enables directors to take necessary action to either revive the company or initiate an appropriate exit strategy.

Duties and Responsibilities of Company Directors in Insolvency

When a company is facing insolvency, directors hold increased responsibilities and must pivot their focus to prioritize the interests of their creditors. This can involve refraining from incurring additional debt, avoiding transactions that undervalue company assets, and ensuring that no further detriment is caused to the financial standing of the creditors. Failure to act responsibly in the face of insolvency can result in allegations of wrongful or even fraudulent trading, potentially leading to personal liability for the directors. Timely, responsible action by directors is essential for limiting potential damages and preserving the trust and rights of creditors involved.

The liquidation process for insolvent companies in Canada involves stringent legal obligations and is closely monitored by the courts. Directors must comply with laws set forth by the Bankruptcy and Insolvency Act or engage in processes like Company Creditors Arrangement Act proceedings, which offer an alternative to outright liquidation. In practice, the process is administered by a court-approved licensed insolvency practitioner (IP) who oversees the liquidation of assets, repayment of creditors, and an investigation into the reasons for the company’s failure, including examining the conduct of its directors.

Commencing company liquidation does not automatically cancel existing contracts; however, the entity in liquidation has statutory provisions under the Bankruptcy and Insolvency Act to terminate agreements that are no longer viable or beneficial.

Directors must understand their legal obligations and the procedural steps involved to ensure that they comply with the law and mitigate any risk of personal liability. The role of IP is pivotal in managing the process to achieve an equitable outcome for all parties and to facilitate a lawful and orderly conclusion to the company’s affairs.

Company Liquidation: The Role of Insolvency Practitioners

A Licensed Insolvency Trustee (LIT) are professionals licensed, authorized and supervised by the Federal Government to act concerning an insolvent individual, partnership, or company. These specialists take control of businesses that face financial difficulties to achieve the best possible outcome for shareholders, board of directors, employees, and – most significantly – creditors. Their expertise is essential in navigating the complex process of business liquidation including the sale of assets.

LITs meticulously itemize business expenses and assess the value of remaining assets when a business is ending. This is a vital step in determining how best to distribute assets among creditors. They are also responsible for conducting thorough investigations into why a company failed, examining the conduct of its directors, and sometimes reviewing the actions of third parties, like creditors.

The process they oversee – whether it’s a voluntary company liquidation or an involuntary liquidation – adheres to a strict legal hierarchy for repaying creditors. This ensures a clear and equitable distribution of assets, even though unsecured creditors may receive little to no return. The ultimate aim of an insolvent liquidation, guided by the LIT, is to provide a dividend to all classes of creditors to the extent that the company’s assets allow.

The Official Receiver and their Role in Liquidation Proceedings

The Official Receiver is a local public official within the Federal Office of the Superintendent of Bankruptcy. They play a pivotal role in managing the insolvency process in Canada. This includes setting standards, providing directives to LITs on how to proceed in certain situations and overall supervisory responsibility of LITs.

Secured Creditors vs Unsecured Creditors: What You Need to Know

In the hierarchy of repayments during a company liquidation, understanding the distinction between secured and unsecured creditors is crucial. Secured creditors are those with a legal claim on assets, often due to a lien or a security interest that guarantees their investment. Should a company dissolve, these creditors are prioritized to receive payment from the sale of the secured assets. Examples include lenders who financed company property or equipment.

On the other hand, unsecured creditors do not have this collateral backing. They include entities like credit card companies or suppliers with outstanding invoices. Once the secured creditors are paid, unsecured creditors fall next in line for any remaining funds, though often recovery rates are low or nonexistent.

Employees, as stakeholders, are also categorized as unsecured creditors, but may be prioritized differently depending on the jurisdiction and specific liquidation laws. In bankruptcy, secured creditors may take control of pledged assets to offset their losses, while unsecured creditors must wait to see if there are any funds left after the liquidation of unpledged assets.

Understanding these classifications is paramount for anyone involved in a company liquidation, as they dictate the order of payments and potential recovery. This knowledge can influence decisions made prior to and throughout the liquidation process, impacting all parties involved, from the business owner to the smallest creditor.

Creditor Type

Description

Recovery Source

Priority in Company Liquidation

Secured

Creditors with a legal claim on assets (e.g., banks have taken a security interest for their loan, property liens)

Sale of specific collateral

High

Unsecured

Creditors without a claim on assets (e.g., suppliers, credit card companies)

Remaining business assets after secured debts are paid

Lower

By managing secured and unsecured creditors efficiently, Insolvency Practitioners can ensure a fair and lawful distribution of a company’s remaining assets, while acknowledging the varying levels of risk each creditor assumed.

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company liquidation

The Company Liquidation Process: From Decision-Making to Implementation

The journey of company liquidation begins with a crucial decision-making phase, a stage where the future of a business and its stakeholders hangs in the balance. Whether a company opts for voluntary liquidation as part of a strategic exit strategy or faces the harsh reality of insolvency, the liquidation process demands a careful, planned approach to implement.

A solvent company considering voluntary company liquidation might be doing so for reasons such as the directors’ retirement or a strategic decision that the business has run its course. On the contrary, a liquidation of the assets of an insolvent company is triggered when a company cannot meet its financial obligations and must cease operations. In both cases, engaging professional advisers, being a LIT and a lawyer early in the process, can offer guidance through each phase, from the planning stages to the final dissolution of the company.

When the voluntary liquidation process is chosen, a company can prepare in advance, making for a more orderly and manageable closure. This method is less intrusive compared to a court-imposed compulsory liquidation following a creditor’s application. Throughout the process, the appointed insolvency practitioner works to sell off assets and settle debts, culminating in the formal winding up of the company.

In the event of an involuntary company liquidation, the proceedings begin following a winding-up petition from creditors. Legal mandates spell out the steps to be taken, from appointment of a liquidator to notifying and paying out creditors. The process may differ slightly from province to province where specific local laws affect the liquidation process.

In either scenario, the overarching goal is to handle assets and debts in conformity with legal and ethical obligations, and ultimately, to provide clarity and closure to all parties involved.

Making the Decision to Liquidate: Understanding the Options

When the decision looms to liquidate a company, it’s paramount for business owners to understand their options. A company’s status—solvent or insolvent—plays a pivotal role in determining the path taken in liquidation. Solvent companies generally have the luxury of choice, where directors may opt for a company liquidation as an exit strategy when the business has fulfilled its purpose or due to retirement.

Alternatively, for insolvent companies, the decision is less voluntary and often more urgent. Directors may initiate a liquidation to preempt spiralling debts and legal actions by creditors, or they may find themselves in the throes of a bankruptcy protection filing, where a court determines what will happen with the business.

The voluntary initiation of a company liquidation before reaching a crisis point can be less traumatic for a company and its personnel, allowing the liquidator to manage a planned and orderly process.

Company Assets and Outstanding Debts: Navigating the Financial Obligations

Once a company enters the liquidation phase, addressing the financial aspects follows swiftly. This involves a comprehensive accounting of company assets and a thorough evaluation of outstanding debts. The liquidator’s role here is integral. They’re tasked with the identification and valuation of all company assets, assessing business assets like inventory, property, and machinery. Following the liquidation sale, they oversee the distribution of proceeds to creditors, prioritizing secured over unsecured creditors, with any excess then directed to shareholders or the owner.

The focus shifts to the company’s debts, with secured creditors receiving payment first due to their collateral backing. Unsecured creditors, such as trade creditors, are then considered. Insolvency practitioners navigate these waters, ensuring a fair and legal conclusion is reached, even as unsecured creditors may recover only a fraction of what is owed if anything at all.

The Sale of Business Assets and the Exit Strategy

The culmination of a liquidation process lies in the sale of business assets—an exercise aimed at converting the company’s holdings into liquid capital to settle its liabilities. Whether the liquidation is voluntary or a compulsory measure, the end goal remains the same: to conclude the business’s affairs in an orderly and effective manner. For company stakeholders, this can often mean selling off all components of a business—stock, fixtures, equipment, and even intellectual property.

Business owners may mark the liquidation of assets as a significant part of their exit strategy. Especially in a voluntary company liquidation, it allows them to retire, recalibrate, or move on from the company in a structured and anticipated way. Conversely, in an insolvency scenario, liquidation acts as a critical means to mitigate the impact on creditors, shareholders, and the business reputation.

By converting assets into cash, liquidation can fulfill outstanding financial obligations and, in some fortunate cases, result in a surplus for the company’s shareholders. Regardless of the circumstances, the conclusive act of selling off assets and settling the company’s affairs offers a clear yet often bittersweet period of transition for those involved. Whether it will be a long or shorter period of transition depends on the complexities of the business in company liquidation.

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company liquidation

Company liquidation, whether voluntary or involuntary carries significant personal and legal ramifications that extend beyond the immediate dissolution of business operations. Directors and business owners need to be cognizant of the implications of liquidating their company, as the consequences of failing to adhere to legal requirements can be severe.

Understanding Personal Liability: The Impact on Business Owners and Directors

In the event of a company’s insolvency and subsequent liquidation, the directors’ conduct leading up to this point comes under scrutiny. Directors of insolvent companies must adhere to high standards of corporate governance, and failing to do so may result in personal liability. This scrutiny is aimed at uncovering any wrongful or fraudulent trading activities. If discovered, directors can be compelled to contribute to the company’s outstanding debts, significantly impacting their finances.

Moreover, if directors have provided personal guarantees for company borrowing, they can also be held accountable for these debts. This risk heightens the importance of seeking professional legal advice before initiating any company liquidation proceedings. A proactive approach, including ensuring that all debts and obligations are satisfied, protects business owners from the pitfalls of personal liability.

Finally, directors are liable for any unpaid salary or wages and any statutory withholdings not remitted to the government.

Voluntary vs Compulsory Liquidations: Factors to Consider

Understanding the difference between voluntary and compulsory liquidation is paramount for any business owner or director contemplating the end of their company’s operations. In voluntary liquidation, which requires a special resolution and the consent of shareholders, the business can be wound down in an orderly fashion, assets sold off, and creditors paid in an agreed-upon order. This option puts the business in control of its exit strategy.

Compulsory company liquidation, on the other hand, is not within the company’s control and occurs when economic conditions, company regulations, and financial distress lead to a court order forcing liquidation. Such unfavourable circumstances often stem from insolvency and more often than not, failure to fulfill legal obligations. Compulsory liquidation subjects the company to a court-appointed liquidator’s oversight, who will distribute assets to satisfy creditors without the company’s input in the order of repayment.

The voluntary liquidation process is initiated by a company’s shareholders via a special resolution and is a methodical path toward winding down company affairs. It begins with a formal decision to cease operations, involves reaching out to a licensed insolvency practitioner, and requires calculated steps to manage the cessation of business affairs.

After shareholders’ approval, company assets are assessed and sold to pay debts. Secured creditors are prioritized, followed by unsecured creditors. Any remaining funds are then distributed among stakeholders or redirected towards the business owner’s subsequent ventures. Once all financial obligations have been met, the company is formally dissolved, marking the completion of the company liquidation process and providing a clear endpoint to the company’s existence.

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company liquidation

Company Liquidation: The Importance of Trust and Collaboration in Business – Lessons from the Srivastava v. DLT Global Inc. Case

I won’t go into all the details of the case, but rather, provide an overview of the important points to be taken away from this legal battle. You can read the entire judge’s decision by clicking on this link. The case revolves around Neeraj Srivastava, a co-founder and former director of DLT Global Inc., and his application to wind up the company. The court ultimately dismissed the application, but the underlying issues uncovered shed light on the critical role of trust and collaboration in business relationships.

Background

Mr. Srivastava’s application was based on the argument that DLT Global could not continue its business due to significant liabilities. He claimed that they faced financial difficulties, had an unsustainable burn rate, and engaged in extensive litigation. These issues, according to Mr. Srivastava, justified the winding up of the company.

Trust and Collaboration

A breakdown in trust and collaboration between Mr. Srivastava and his co-founder, Loudon Owen, emerged as a central issue in the case. Mr. Srivastava alleged that his reasonable expectations as a co-founder and shareholder were not met and that he was unfairly treated by DLT Global. On the other hand, DLT Global argued that Mr. Srivastava engaged in misconduct and threatened to harm the business.

Lessons Learned

1. Clear Communication and Expectations: The Srivastava v. DLT Global Inc. case underscores the importance of clear communication and setting realistic expectations from the outset of a business venture. It is crucial for all parties involved to have a shared understanding of their roles, responsibilities, and the direction of the company.

2. Building and Maintaining Trust: Trust is the foundation of any successful business relationship. It requires open and honest communication, transparency, and a mutual understanding of values and objectives. Without trust, collaboration becomes challenging, and the business may suffer as a result.

3. Resolving Conflicts Effectively: Conflicts are inevitable in any business relationship. However, it is how these conflicts are resolved that can make or break a partnership. By adopting a collaborative and problem-solving approach, parties can find mutually beneficial solutions and prevent the escalation of disputes.

4. Seeking Alternative Remedies: The Srivastava v. DLT Global Inc. case highlights the importance of exploring alternative remedies before considering the drastic step of winding up a company. Parties should consider mediation, negotiation, or other dispute resolution mechanisms to address their grievances and protect their interests.

Company Liquidation: Closing Thoughts

The Srivastava v. DLT Global Inc. case serves as a cautionary tale for businesses about the criticality of trust and collaboration. It emphasizes the need for clear communication, building and maintaining trust, effective conflict resolution, and exploring alternative remedies before resorting to extreme measures. By prioritizing these aspects, businesses can foster a healthy and productive environment that enables growth and success.

In conclusion, the lessons learned from this case remind us that trust and collaboration are not just buzzwords but essential components of any thriving business. By embracing these values, entrepreneurs and business leaders can create a solid foundation for long-term success, even in the face of challenges. Let us take these lessons to heart and build businesses that prioritize trust, collaboration, and mutual respect.

I hope you enjoyed this company liquidation Brandon’s Blog. If you or your company are struggling with managing overwhelming debt in this high-interest environment, don’t worry – there are some things you can do to take control of the situation.

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THE COMPLETE CORPORATE BANKRUPTCY IN CANADA GUIDE: WHAT EVERY BUSINESS OWNER NEEDS TO KNOW

Corporate bankruptcy in Canada: Introduction

Are you a business owner with company financial difficulties and apprehensive about the possibility of corporate bankruptcy and is it something that you will have to seriously consider? Corporate bankruptcy in Canada process can be complex and overwhelming, but understanding it is necessary for making authoritative decisions about your business.

In this Brandon’s Blog, I will analyze the ins and outs of corporate bankruptcy in Canada, including the different types, the steps in filing for corporate bankruptcy, the impact on creditors and shareholders, and alternatives to consider. By the end of this Brandon’s Blog, you will have a better understanding of corporate bankruptcy in Canada and be able to understand how to make the best decision for your business.

Explanation of what corporate bankruptcy in Canada is

The corporate bankruptcy process in Canada – otherwise known as commercial bankruptcy or incorporate business bankruptcy – is a legal means by which an incorporated business that is unable to pay its debts can be liquidated, and its liabilities discharged. This process allows the business to liquidate its assets and redistribute the value among its creditors. The process is intended to give an honest, but unfortunate corporate debtor a discharge from most debts while ending the business of that corporation.

It is important to note that corporate bankruptcy is different from personal bankruptcy which is a legal process through which an insolvent individual can substantially reduce debt and hopefully restructure. Unlike an individual who files for personal bankruptcy, it is not intended that the bankrupt corporation will come out of bankruptcy through a discharge process.

If single individuals are operating businesses and are considering business bankruptcy, then we are talking about the bankruptcies of sole proprietorships. If more than one person is operating a business partnership, then we need to think of the issues in a partnership bankruptcy. Either way, we have insolvent persons, which means personal bankruptcy, which is not the subject of this Brandon’s Blog.

It’s important to note that the process of corporate bankruptcy in Canada is complex and can only be handled by a licensed insolvency trustee. The Trustee will help you understand the process and the options available to your corporation and then prepare the documents required to submit the bankruptcy filing.

In Canada, if a corporation is bankrupt, it is subject to both the federal Bankruptcy and Insolvency Act (Canada) (“BIA”) and relevant provincial regulations. The BIA outlines the procedure for managing a corporate bankruptcy, while provincial law governs other aspects of the business such as labour laws.

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corporate bankruptcy in canada

A brief overview of how the process of corporate bankruptcy in Canada begins

Navigating corporate bankruptcy in Canada can be complicated, as there are numerous steps that need to be taken. To begin, it is important to consult with a licensed insolvency trustee to review the financial details of the company, including income, profits, liabilities, and any personal guarantees. From there, the next step is to determine the misogynist options.

The board of directors needs to hold a meeting, in order to pass a resolution permitting the corporation to file for bankruptcy. This process is initiated by a director, or the single director, who will then execute the necessary bankruptcy paperwork.

Types of corporate bankruptcy in Canada

There are two types of corporate bankruptcy in Canada: liquidations and reorganizations. Although a reorganization is not an actual bankruptcy, the phrase “bankruptcy protection” is used to describe a formal reorganization. So for the purposes of this Brandon’s Blog, we will consider both as types of bamkruptcy.

The type of corporate bankruptcy in Canada proceedings can often provide a good indication as to whether the unsecured creditors will get all, a portion, or none of what they are owed.

business bankruptcy in canada
corporate bankruptcy in canada

An overview of the 2 types of bankruptcy proceedings available to Canadian businesses

Liquidation

The process of corporate bankruptcy involves a business ceasing operations as it is unable to fulfill its financial obligations and the demand for its goods and services has become obsolete. This form of corporate bankruptcy is commonly referred to as liquidation.

Canadian bankruptcy proceedings must adhere to Canadian bankruptcy law under the BIA. This law contains similar liquidations to Chapter 7 of the U.S. Bankruptcy Code. Commencing the process of bankruptcy liquidation in Canada is the initial step.

It all starts with the board of directors of the corporation getting together and deciding to file for bankruptcy. One of the directors, or a single director, will then have to sign the official documents for the bankruptcy process.

Once the liquidation process has been initiated, the corporation’s assets, subject to the rights of any creditor having security over all or some of the assets, are taken over by the Trustee. The Trustee will sell the corporate assets and the proceeds will be distributed among the creditors according to the priority established by law. The corporation will then be laid to rest, as it will no longer operate as a legal entity.

Reorganization

Corporate reorganization is one of the alternatives to bankruptcy. It is a process in which a process for a company that is facing financial difficulties is able to restructure its outstanding debt and its operations in order to improve its financial situation. In Canada, the primary statutes for corporate reorganization are the Companies’ Creditors Arrangement Act (CCAA) and the BIA. These laws are similar reorganizations under Chapter 11 of the U.S. Bankruptcy Code.

The CCAA provides a thoroughfare of debt reorganization for corporations on a larger scale, as the amount owed by the company must exceed $5 million. Through this federal legislation, the debtor corporation can still operate while reaching an approved plan of arrangement with its creditors.

For corporations that do not reach this $5 million threshold, the Division I Proposal under the BIA can be utilized. The BIA provides for the restructuring of insolvent corporations and individuals.

The CCAA is a federal statute that allows for the sale of an insolvent business, with a reach that transcends the wideness of the whole Canadian nation and even extends beyond its borders.

The process of corporate reorganization under either the CCAA or BIA begins with the corporation filing for protection under the appropriate Act. In the case of the CCAA, the filing is with the court. Under the BIA, the filing is with the Office of the Superintendent of Bankruptcy Canada.

The debtor will then be safeguarded with all its possessions. Then, the corporation will be allotted a specified value of time – typically 30 to 45 days – to present a plan of arrangement. This plan must be approved by the creditors and the court in order to move forward. When the plan of arrangement is given the thumbs up, it can be set into motion.

So corporate reorganization in Canada is a process in which a company that is viable but is facing financial difficulties is allowed to restructure its business debts and operations in order to modernize its financial situation. The CCAA is mainly used for larger corporations and the BIA for smaller ones. Both legislations provide a process to restructure a company while under the protection of the court and it’s intended to be a way to save a company while protecting the rights of the creditors.

Advantages and disadvantages of corporate bankruptcy in Canada

Liquidation

Advantages of corporate liquidation using corporate bankruptcy in Canada:

  • Allows an incorporated entity that is unable to pay its debts to file for bankruptcy, as per the BIA.
  • Allows for the liquidation of resources and redistribution of that value among creditors, which can provide relief for the corporation and its creditors.

Disadvantages to bankruptcy and corporate liquidation using corporate bankruptcy in Canada:

  • The Canada Business Corporations Act (CBCA) prevents a company in bankruptcy from seeking dissolution under the CBCA.
  • Unfortunately, specific liabilities or obligations of the corporation are passed to its directors. This would put personal assets at risk.
  • The process is time-consuming and may also be expensive.
  • Unfortunately, the director’s reputation may moreover be tarnished in the process.

Reorganization

Advantages of reorganization under corporate bankruptcy in Canada:

  • Can uplift profits and increase efficiency.
  • Can extend the life of the business.
  • Can modernize strategy and financial arrangements.
  • Could be done informally without a court process by agreement between the debtor and its creditors or formally under either a proposal as outlined in part III of the BIA or a plan of arrangement under the CCAA.

Disadvantages of reorganization under corporate bankruptcy in Canada:

  • It may not work.
  • Decreased employee morale and concern among customers.
  • Can be a significant time investment with potential setbacks in cash flow
  • If the financial matters are so dire that a reorganization is not viable, the remaining option is full bankruptcy, which results in the liquidation of resources to pay creditors.

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    corporate bankruptcy in canada

Filing a voluntary assignment into bankruptcy for corporate bankruptcy in Canada

Overview of steps involved in filing for Corporate Bankruptcy in Canada

  • Finding a Licensed Insolvency Trustee (formerly called a trustee in bankruptcy) (LIT) and retaining the LIT to make an informed decision about proceeding with bankruptcy.
  • One of the directors (or sole director) will be required to execute corporate bankruptcy papers
    Upon bankruptcy assignment, the LIT will notify business creditors of the bankruptcy proceeding.
  • Hold a meeting of creditors.
  • Conduct a sale of assets.
  • Carry out its other duties in accordance with the BIA.

Note: The above steps are a general outline and the specific process may vary depending on the case. It’s advisable to seek guidance from a licensed insolvency trustee and a legal professional to ensure compliance with the laws and regulations.

Essential paperwork and information

In order to file a voluntary assignment for corporate bankruptcy in Canada, and get to the point of holding the First Meeting of Creditors, the following documentation and information are typically required:

  1. Provide the LIT with the corporate minute book, seal and accounting records.
  2. Fully signed minutes of a validly held meeting of directors resolving that the corporation file an assignment in bankruptcy and appointing either a director or senior management person to be the Designated Officer to sign all bankruptcy documents and attend the First Meeting of Creditors.
  3. A completed Voluntary Assignment of the corporate debtor, prepared by the LIT and signed by the Designated Officer.
  4. The LIT prepared statement of affairs, reviewed, approved and sworn/confirmed by the Designated Officer, which includes information about the debtor’s assets and the names and addresses of all known creditors and the amounts owing to each of them.
  5. The LIT will take the necessary steps to lodge the paperwork with the Office of the Superintendent of Bankruptcy, who in turn will give the Certificate of Bankruptcy – marking the very beginning of bankruptcy proceedings in Canada. The moment the Certificate is issued will be the exact time the corporate bankruptcy in Canada is activated.
  6. The LIT then prepares the statutory notice to creditors which is mailed to all known creditors with a notice of the time and place of the First Meeting of Creditors will be held and also includes a proof of claim form for the creditors to complete fully and file with the LIT.
  7. The LIT will also prepare the bankruptcy notice to be placed in a local newspaper to advertise for creditors to contact the Trustee.
  8. The LIT prepares its Report on Preliminary Administration to provide necessary information to the creditors about the causes of the corporate bankruptcy in Canada, the available assets to be sold, if any and other important information. The LIT’s report is distributed at the First Meeting of Creditors.

In a voluntary assignment, the LIT is picked by the debtor. In an involuntary assignment, the LIt is suggested to and chosen by the court. In issuing the Certificate, the LIT choice is confirmed by the Office of the Superintendent of Bankruptcy. However, it is ultimately up to the creditors attending and voting at the First Meeting of Creditors to either confirm the appointment of the LIT or substitute the LIT with another one (don’t worry about the mechanics for now!). The LIT will be responsible for overseeing the administration of the debtor’s estate and distributing the proceeds to creditors.

It’s important to note that the above list is not exhaustive and additional documentation and information may be required by the Office of the Superintendent of Bankruptcy(OSB) or the appointed Trustee. It’s recommended to seek professional advice from a LIT, a lawyer or both, before filing for a voluntary assignment in bankruptcy.

The OSB plays an important part in the area of insolvency

The OSB is tasked with keeping orderly standards for the supervisory oversight of stakeholders within the insolvency process, creating an accessible archive of public records, compiling and analyzing data, and enforcing the BIA and CCAA regulations. Furthermore, the OSB is devoted to facilitating an effective and efficient insolvency framework in Canada.

The OSB in Canada is responsible for the supervision and regulation of the Canadian insolvency system, and overseeing the administration of all insolvency proceedings described as bankruptcies, commercial reorganizations, Division I commercial proposals, consumer proposals and receiverships.

The effects of corporate bankruptcy in Canada on creditors and stockholders

How corporate bankruptcy affects the distribution of assets among creditors

Divvying up resources among those owed money in a corporate bankruptcy in Canada can be quite intricate and can be affected by various elements, such as the kind of bankruptcy declared and the company’s ownership and organizational setup.

When a company files for bankruptcy, its day-to-day operations will typically come to a halt. All of the corporation’s assets will be sold off and the proceeds will be divided among its creditors. In Canada, this process can have a major impact on how the assets are divided up among those who are owed money.

The BIA requires the LIT to take control of all the unencumbered assets, sell them and assigns orders of importance to the many claims against the debtor. The net sale proceeds are then doled out to creditors depending on the priority of the claims.

In a nutshell, the types of creditors and the order of priority is:

  • Trust claims, including unremitted employee payroll withholdings.
  • Secured lenders.
  • Preference is given to certain kinds of unsecured debt.
  • Ordinary unsecured creditors are last.

In Canada, though the assets of a company are distinct from the owners’ individual wealth, banks will always take security on the company’s assets when loaning funds and anticipate the entrepreneur to provide some kind of collateral. It bears mentioning that this is a standard requirement.

Should the proceeds of the company assets fail to cover the bank debt in the event of a Canadian bankruptcy, the owners will be called upon to make good on their personal liability and may be faced with the liquidation of some or all of their personal belongings to make up the difference.

What sort of ramifications does corporate bankruptcy in Canada have on the equity holders and their privileges?

Generally, when it comes to bankruptcy proceedings, it’s usually shareholders who are left holding the shorter end of the stick. Most often, they don’t get anything back after all other creditors have been taken care of– leaving them with nothing but the realization that their investments have gone down the drain. Furthermore, they forfeit any rights they once held with the company.

If any of the shareholders are also in a director position, then they will have the added worry about whether there are any debts that are also a director liability. Legal advice is always required by directors of an insolvent company. In next week’s Bradon’s Blog, I will talk about recent developents arising from an Ontario court decision about the directing mind of a bankrupt corporation.

The one small solace they may have is that Canada Revenue Agency will acknowledge the corporate bankruptcy in Canada as a legitimate means of allowing shareholders to deduct the value of their shares as a loss on their tax return.

business bankruptcy in canada
corporate bankruptcy in canada

Alternatives to Corporate Bankruptcy in Canada

For a business that is viable yet unable to pay off its debts, there are 5 alternatives to corporate bankruptcy in Canada that must be explored:

  1. Implement tighter controls over spending and create a cash-flow budget to see if costs can be cut or eliminated, freeing up funds to pay off debts.
  2. Refinance existing debt in order to consolidate it into more manageable payments.
  3. The shareholders provide a fresh injection of funds.
  4. Informal out-of-court debt settlement through direct negotiation with creditors.
  5. Selling redundant or no longer-needed assets to raise cash for debt repayment.

Rather than going through the effort of reorganizing debt under the CCAA or BIA, a corporate workout is an amicable arrangement between the company and its creditors that allows them to come to a mutually-satisfactory resolution without resorting to legal proceedings and a reorganization court case. This is seen as an advantageous alternative to a formal filing.

If all other solutions fail to prevent a company in Canada from going bankrupt, then the CCAA or BIA’s restructuring provisions should be carefully considered to potentially save the company, its jobs and business assets.

If the company is not viable or profitable and is in a state of financial distress, then a secured lender can exercise their rights through a receivership process. This could be used in conjunction with a corporate bankruptcy in Canada if the situation calls for that.
The reasons why bankruptcy and receivership may be needed to work in tandem are complex and are best left as a topic for another day.

Corporate bankruptcy in Canada: Conclusion

I hope you enjoyed this corporate bankruptcy in Canada Brandon’s Blog.

Revenue and cash flow shortages are critical issues facing entrepreneurs and their companies and businesses. Are you now worried about just how you or your business are going to survive? Those concerns are obviously on your mind. Coming out of the pandemic, we are now worried about its economic effects of inflation and a potential recession.

The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.

It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now.

We have helped many entrepreneurs and their insolvent companies who thought that consulting with a trustee and receiver meant their company would go bankrupt. On the contrary. We helped turn their companies around through financial restructuring.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you.

We understand that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your life, Starting Over, Starting Now.

corporate bankruptcy in canada
business bankruptcy in canada

 

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Brandon Blog Post

ENTREPRENEURIAL CANADIAN BUSINESS BANKRUPTCIES: THE TIP OF A HUGE ICEBERG?

Insolvency for business including business bankruptcies

In the last two Brandon’s Blogs, I wrote about personal bankruptcy. The topic was the class of debts not released by a person’s discharge from personal bankruptcy. In this Brandon’s Blog, I discuss insolvency for business, and specifically, business bankruptcies, as a result of the recent report by the Canadian Federation of Independent Business (CFIB).

If a business is incapable to pay its financial obligations as they come due, it might deal with some negative effects, including legal action. However, this does not have to damage a business’s credibility forever, if management is prepared to take the required corrective activity before it is far too late.

If a business that is unable to pay its debts cannot turn itself around, it may be forced to declare business bankruptcies, which can have a devastating impact on the business and its employees.

What will happen to the company if it is insolvent?

If your company is financially troubled, it may need to assign itself into bankruptcy. Nonetheless, business bankruptcies are not always the automatic result of being insolvent. If your business is experiencing financial problems, it is essential to speak to a bankruptcy lawyer or a licensed insolvency trustee to review all of your realistic choices. Bankruptcy should be the last choice when nothing else will work.

Case in point, the recent report issued by the CFIB on small business insolvency says that its survey finds that only 10% of business owners would certainly declare bankruptcy if they were to shut down completely.

The CFIB report is meant to give a more comprehensive view of Canadian business insolvencies (bankruptcies + proposals). The data indicates that the number of businesses filing for bankruptcy has been on the rise and is now at the highest level of business insolvencies in two years.

As we recover from the COVID-19 pandemic, Canadian small businesses face a number of challenges in returning to normal operations, including debt from necessary pivots, increased costs of doing business and trouble finding employees to work.

The CFIB study found that half of the businesses (54%) are still seeing below-normal revenues, and over 60% are carrying unpaid debt from the pandemic. Small businesses are under significant financial pressure, with little room to maneuver.

Insolvency fears among Canadian small businesses are alarmingly high, and the true scope of the problem may be even greater than what is reflected in official statistics. Business owners have a range of options available to them when faced with financial difficulties, and bankruptcy is only one of these.

The CFIB recently released report details the different ways the surveyed small businesses in Canada said they would take if they had to shut down as follows:

  • 46% – Just ceasing all operations permanently.
  • 27% – Selling or transferring ownership to another party.
  • 10% – Filing for business bankruptcies or business bankruptcy protection.
  • 10% – Unsure at this time.
  • 7% – Exploring all options.

Interestingly enough, recapitalizing the legal entity or taking on more business debt by way of loans was not one of the answers. That should tell you how tapped-out Canadian small business shareholders are and that the businesses have no borrowing base room left on their assets to increase their bank borrowings.

business bankruptcies
business bankruptcies

Business bankruptcies: The insolvency of a business – First steps

The first step for the Directors is to consult with a business bankruptcy attorney/lawyer and a licensed insolvency trustee (formerly called a bankruptcy trustee) (sometimes referred to as “Trustee”). The lawyer can confidentially discuss the situation with the Directors and develop a proposed plan to deal with the situation.

The licensed insolvency trustee will review the company’s financial position and proposed game plan, and consider all options available to the company and its Directors. In Canada, the only party licensed to run the administration of bankruptcy, or any formal insolvency process, is a licensed insolvency trustee.

The licensed insolvency trustee will want to understand fully the company’s assets and liabilities. With a clear understanding of the company’s financial status, the Trustee can explain how best to implement the plan to either restructure or liquidate the company. If necessary, the Trustee can tweak the game plan.

The next question is whether the business is viable. Does it produce goods or services that are still in demand in the marketplace? If not, one option to consider is selling the business to another company that has complementary lines of business. Would the business fit in neatly with the buyer’s existing operations?

Could it perhaps be integrated in some way that would make your standalone business, which is not currently viable, become viable? Keep in mind for this to be an option, the company would need to have a solvent business.

If you can’t sell your unprofitable but still solvent company, you could always explore the option of a statutory liquidation. This would involve liquidating all the company assets, paying off any outstanding liabilities, and then distributing the remaining amount to shareholders.

Companies under business bankruptcy protection

If your business is struggling financially but still has potential, you may be able to restructure it through business bankruptcy protection. In Canada, there are two main possible federal statutes to restructure under; (i) the Bankruptcy and Insolvency Act (Canada); and (ii) the Companies’ Creditors Arrangement Act. One of these restructuring legal proceedings is an alternative to business bankruptcies.

A proposal under the Bankruptcy and Insolvency Act (Canada) (“BIA”)

The BIA is the canadian bankruptcy legislation containing all the rules and regulations in Canada’s bankruptcy regime. However, it also includes bankruptcy options such as a Division I Proposal for debtors who owe more than $250,000. This kind of financial restructuring allows the company to remain in business while it restructures. The essence of a BIA Proposal restructuring is that the company is offering a contract to its unsecured creditors to pay less than the total it owes those unsecured creditors in return for eliminating all of its unsecured debt.

To ensure that the company can successfully implement a proposal and pay its post-filing debts, the licensed insolvency trustee will need to be satisfied that all relevant information has been obtained and that the company has a good chance of success. The company’s cash flow will need to be monitored to ensure that it is sufficient to run the business and pay for the goods and services it needs going forward.

The Trustee will send all known creditors a copy of the proposal, a portion of the company’s statement of affairs listing the company’s assets and liabilities, a list of creditors, a proof of claim form, a voting letter and the Trustee’s report providing additional information and the Trustee’s recommendation.

The meeting of creditors is then held and if the proposal is accepted by the required majority of unsecured creditors, the licensed insolvency trustee takes the proposal documentation to Court for approval. If the proposal is accepted by creditors and approved by the court, the company is now bound by the proposal.

If the companies successfully complete their financial restructuring proposal, they will avoid business bankruptcies. However, if the company fails to get creditor or court approval, or fails to successfully complete the proposal, it will automatically go into bankruptcy under the BIA.

Financial restructuring under a Companies’ Creditors Arrangement Act (“CCAA”) plan of arrangement

Restructuring through a CCAA plan of arrangement is a financial restructuring process that provides companies with a way to restructure their debts and other obligations. This process can help companies to avoid the business bankruptcy process and to continue operating while they repay their creditors. It is very similar to a BIA proposal. The main difference is that it is only for companies with debts of $5 million or more, it is much more court-time intensive and there is no automatic business bankruptcy provision. In a CCAA, the licensed insolvency trustee acts as a monitor under the CCAA to administer the restructuring process.

When you hear when a company files for protection, or bankruptcy protection, in Canada it is usually under the CCAA. In the United States, it is under Chapter 11 of the US Bankruptcy Code.

business bankruptcies
business bankruptcies

Licensed insolvency trustees say if companies are insolvent and not viable the best option may be business bankruptcies

We still want to know if the business is viable when it is insolvent. If it is viable, then we could look at doing a restructuring as outlined above. After the company is restructured, we could either keep running it or look to sell it. If there are impediments to a successful restructuring, the approach we take even through business bankruptcies will be different than if it is not a viable business model any longer.

If the business is not viable and insolvent, then there is not much that can be done. The business is financially unhealthy and the marketplace no longer wants the product or service this business provides. Therefore, we are looking at bankruptcy if there is not a secured creditor who is going to enforce their security through a receivership. Receivership is a whole topic unto itself which is for a different day.

As a licensed insolvency trustee, I am responsible for understanding all the issues in business bankruptcies and preparing the necessary documentation for limited companies to assign themselves to business bankruptcies. A meeting of directors must be called for them to resolve that the company should put its business into bankruptcy and appoint one of the directors to be the designated officer.

The officer designated by the board should be the director with the most intimate knowledge of the company’s affairs. This officer will sign the bankruptcy documentation and be the company’s representative at the first meeting of creditors.

The Trustee attends the director’s meeting and prepares the meeting minutes, or the minutes will be prepared by the directors and provided to the Trustee. Then, the licensed insolvency trustee prepares the bankruptcy documents which include the statement of affairs, which is the listing of assets and liabilities, names addresses and amounts owing to each creditor. The designated officer then attests to the truthfulness of the information and signs it all.

The companies are insolvent and have to go into business bankruptcies

The Trustee files the necessary documentation with the Superintendent of Bankruptcy, who issues a certificate of bankruptcy and appoints the Trustee. That’s when a company is officially entered into the bankruptcy process and the bankruptcy proceedings begin. This is the process of a company filing an assignment into bankruptcy.

So in a commercial bankruptcy administration, the Trustee has several responsibilities. The Trustee has to deal with the assets. The Trustee has to first determine are the assets subject to the security of a lender. Is that lender’s security good and valid?

business bankruptcies
business bankruptcies

What happens when the certificate is issued for business bankruptcies?

If every one of the assets is covered by a lender’s valid security which makes the security cover the assets in priority to the rights of a Trustee, then the bankruptcy trustee would not take steps to handle the company’s secured assets unless the secured lender particularly requests the Trustee to do so separately either as Receiver or Agent of the secured lender.

So let’s simply take the case where in bankrupting the company, the Trustee is handling the assets either due to the fact that they’re not secured or because the secured financial institution wants the Trustee to handle the secured assets within the bankruptcy (which is not normal, but not unheard of either).

The Trustee needs to make certain that the corporate assets are safeguarded, that they’re appropriately insured and that the Trustee has carried out an inventory of those assets.

The Trustee then needs to figure out how is it going to offer those business assets for sale. The Trustee must do a risk-reward analysis to see if it makes good sense for the Trustee to run the business. If so, is the Trustee looking for a sale of assets as a going-concern business sale or just shut down the business and liquidate the assets once the reasons for running the business have been met?

If it doesn’t make sense for the Trustee to run the business, the Trustee will close it down and take a look at the alternatives available. The assets can be sold by public auction, private sale or by tender sale separating the assets up into blocs. If the assets are such that they would attract a retail audience where consumers would pay more than if it was sold in lots to wholesalers, then a retail sale would be the way to go. The nature of the assets will identify what sort of sale of assets the Trustee runs.

Business bankruptcies: How will I know what’s going on?

The Trustee alerts all of the company’s creditors listed in the sworn statement of affairs of the bankruptcy in a mailing. The Trustee includes a proof of claim form so that all creditors can file their claim. The Trustee examines the claims and holds the first meeting of creditors.

After the first meeting, a meeting of inspectors is held. Inspectors are creditor representatives who assist the Trustee in providing approval for the Trustee’s recommendations and actions it wishes to take. This includes any approval of asset sales the Trustee recommends after making an informed decision. Inspectors also need to approve the Trustee’s Final Statement of Receipts and Disbursements near the end of the administration of all business bankruptcies.

business bankruptcies
business bankruptcies

Finding a Licensed Insolvency Trustee

I hope you enjoyed this Brandon’s Blog on business bankruptcies. Are you or your company in need of financial restructuring? Are you or your company unable to survive the COVID pandemic and its aftermath? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too much personal debt. You are worried because you are facing significant financial challenges.

It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. We know that we can help you the way we take the load off of your shoulders and devise a debt settlement plan.

We realize that people and businesses in financial difficulty need practical advice and a workable solution in an easy-to-understand financial plan. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We can tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. If any of this sounds familiar to you and you’re serious about finding a solution, let us know.

Call us now for a no-cost initial consultation.

If you would like our free e-Book, “Closing A Business Without Going Bankrupt” CLICK THE PICTURE BELOW

business bankruptcies
business bankruptcies
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LIQUIDATION OF COMPANY ASSETS: WHEN SHAREHOLDERS ARE INTENT ON CRUSHING EACH OTHER WHAT CAN A VOLUNTARY LIQUIDATOR DO?

Liquidation of company assets: What is the liquidation of a company?

In business and the law, liquidation is the process of bringing a company to an end and distributing its assets to creditors. This usually happens when a company is financially solvent and can pay all of its debts after all its assets are sold or collected.

When a product is not selling well, retailers may choose to liquidate it by selling it at a discounted price. This process called a liquidation sale can help them clear out slow-moving inventory. This is not the process I am talking about today.

If you want to learn more about the types of liquidation in Canada, then you’ve come to the right place. In this Brandon’s Blog, I will explain everything about the liquidation of company assets and give you a real-life example that my Firm is currently involved in. This real case is an example of what can be done when shareholders who originally agreed to a voluntary liquidation (defined below) can no longer agree on the liquidation of company assets or anything else, even how to pay them the cash the shareholders are entitled to receive!

Why would a company want to have liquidation of company assets?

There are a few reasons why companies pick a liquidation process, including:

The business is solvent yet no longer practical to operate

Possibly time has actually passed the business by. Technological adjustments have made the products or services the limited company offers unneeded as well as no longer relevant. The shareholders want to call it quits now, sell off the corporate assets and properties, repay creditors and also distribute the leftover funds to the shareholders.

The shareholders do not intend to or think it is possible to convert the business to make it viable again. They do not feel it deserves the investment of time and resources, as well as to endure ongoing losses in turning the business around so that it ends up being pertinent again.

Shareholder disputes

The shareholders in a private entrepreneurial company no longer get along. The dissident shareholder(s) cannot or refuse to buy out the remaining shareholders or vice versa. Alternatively, certain shareholders are willing to do a buy-out but either cannot agree on the price or balk at paying the amount calculated under the formula prescribed in the shareholder agreement.

The company is not saleable

The limited company’s business is not viable anymore. Nobody wants the company’s products or services and the company never moved forward with new product offerings that are in demand. Therefore, nobody wants to buy the company or its assets. So while it is still solvent, the shareholders decided to realize all the assets, distribute the cash first to pay off all of the company’s debts in full, make a distribution to shareholders for what is left over and formally dissolve the corporation.

To avoid bankruptcy

If the company is not wound up, it will eventually become an insolvent corporation. The shareholders realize that it is much better to now agree to a voluntary liquidation while there still can be a distribution to the shareholders after all the business assets are sold or collected and all creditors are paid in full. The shareholders wish to get this value and avoid a corporate bankruptcy filing.

liquidation of company
liquidation of company

How a liquidation of company assets begins

If shareholders wish to have a dissolution process for a corporation, they may do so by passing a special resolution to begin the liquidation process. In such cases, the company would call a meeting of shareholders in accordance with the corporate bylaws. Shareholders must be given notice of the meeting in advance. Alternatively, a court may make an order for the liquidation of company assets and the winding-up of the corporation. More on this below. This is how the liquidation of company assets and the winding-up of the company begins.

Shareholders will be given notice of the meeting where the special resolution authorizing the dissolution process will be considered. At the meeting, shareholders can vote to approve or disapprove of the special resolution for the dissolution of the company by special resolution.

Liquidation of company assets: What are the 2 types of liquidation in Canada?

When a company is struggling, it’s common to see a sale take place. When this happens, all of the assets of the company may be sold to pay off creditors. This process of selling off the company’s assets is known as “liquidation.” In Canada, there are two main types of liquidation: “compulsory liquidation” and “voluntary liquidation”.

Voluntary liquidation or voluntary dissolution begins with the shareholders agreeing to a special resolution for the liquidation of company assets, the distribution of the cash first to all creditors and then to the shareholders. When the liquidation is completed, the company is then would up.

Compulsory liquidation is when a court order is made directing the liquidation of company assets and the winding-up of the company.

In Canada, the laws under which a solvent company is liquidated depend on the laws under which the company was incorporated. If federally incorporated, then the Canada Business Corporations Act (CBCA) is the relevant statute. If provincially incorporated, then it would be the law of that particular province. In Ontario, it is the Ontario Business Corporations Act (OBCA). This is the statute that I will focus on in this Brandon’s Blog.

liquidation of company
liquidation of company

Liquidation of company assets: What is the OBCA process for liquidation?

The Ontario Business Corporations Act is a piece of provincial legislation that is designed to govern the formation, administration, and dissolution of corporations in Ontario. In reality, most liquidations filed in Ontario are voluntary. This means that the company shareholders decide to seek liquidation.

Part XVI of the OBCA sets out the process for the liquidation of company assets in Ontario. The OBCA provides a comprehensive framework for the voluntary winding up of corporations. Sections 193 to 205 of the OBCA set out the procedures and requirements for the voluntary winding up of corporations.

As I have previously stated, the OBCA requires shareholders of a corporation to vote for a voluntary winding up of the company as the first step in liquidation of company assets and ceasing business. The shareholders’ requirement is evidenced by a special resolution made at a properly convened meeting of shareholders.

At the meeting, shareholders will appoint one or more people as liquidators of the company. These people may be directors, officers, or employees of the company. Their job will be to wind up the company’s affairs and distribute its property. Shareholders may also provide other instructions at that meeting or at any subsequent meeting.

It’s also common for shareholders to appoint a third party experienced in winding up corporations, like a licensed insolvency trustee. Even though the company isn’t insolvent, shareholders see the advantages of keeping a professional experienced in liquidating assets on board.

A corporation voluntarily winding down will cease carrying out business operations, except where doing so would be beneficial for the winding down process. All transfers of shares, except those made with the approval of the liquidator, taking place after the commencement of the winding down are void.

The OBCA provides for a stay of proceedings when an Ontario company is being liquidated and wound up. After a voluntary winding up has begun,:

  • no legal action can be taken against the corporation; and
  • no seizure, sequestration, distress or execution can be carried out against the corporation’s assets or property.

You will need the court’s permission before taking any action. The court will then decide what terms to set.

Liquidation of company assets: Special considerations in a compulsory or court-supervised liquidation

The court may dissolve the corporation if:

  • If the court finds that the actions or inaction of a corporation or any of its affiliates has resulted in or will result in an outcome that does not consider the interests of any security holder, creditor, director, or officer fairly, it may order the dissolution of the corporation.
  • All shareholders agree that dissolution should occur after a specific event, and that event has occurred.
  • Proceedings have begun to wind up the corporation voluntarily.
  • The court finds that if the actions or inaction of a corporation or any of its affiliates has resulted in or will result in an outcome that does not consider the interests of any security holder, creditor, director, or officer fairly, it may order the dissolution of the corporation.
  • It is best for those who would have to contribute to a company’s assets in the event of its dissolution, and for those who are owed by the corporation, that the court supervises the dissolution process.
  • The corporation cannot continue its business because of its debts and it is advisable to end its operations other than by bankruptcy.
  • The shareholders vote by special resolution to wind up the corporation through a court-supervised process.

Who can apply to the court for a court-supervised liquidation of company assets and the winding-up of the corporation? If you want to dissolve a corporation through a court-supervised process, you can do so by filing an application with the court. Shareholders, a contributory or creditor having a claim of $2,500 or more, or a voluntary liquidator can all apply to have the corporation wound up.

In the section below titled “Liquidation of company assets: Real-life example when voluntary had to become court-supervised” I describe a file that my Firm is involved in the liquidation of two companies, and we were forced to use the right of a voluntary liquidator to apply to the court to turn the voluntary liquidation into compulsory liquidation.

liquidation of company
liquidation of company

Liquidation of company assets: How does the distribution of assets during liquidation work?

When a company is liquidated, its assets are sold off and the proceeds are distributed to creditors. The distribution of assets is first used to pay off secured creditors, then unsecured creditors, and finally shareholders.

The liquidator first needs to gain an understanding of all of the company’s assets and liabilities. The financial statements and the books and records of the company are a good place to start. The liquidator will put together a plan to collect and sell the assets of the company.

The liquidator then needs to put together a list of all creditors, and identify if they are secured creditors or unsecured creditors. This is necessary because the creditors need to be paid in order of priority. Any remaining funds will then be distributed to the shareholders.

The liquidator will keep company management and shareholders informed every step of the way. The liquidator would be very wise to get management and shareholder approval for all of the liquidator’s decisions. The liquidator will also need to make sure that the preparation of the company’s financial statements and income tax returns are kept current and that all government filings and payments are made on time.

The fee of the liquidator must be agreed to by the shareholders. The OBCA also provides for the court to be able to assess the fee charged by the liquidator. In doing so, the court will no doubt look at the steps and acts of the liquidator that were taken.

These are the main steps that every liquidator must carry out. Even in a compulsory liquidation done by court order, the practical steps involved in the liquidation of company assets are the same.

Liquidation of company assets: Real-life example when voluntary had to become court-supervised

The shareholders of two affiliated companies, each one a private company, passed special resolutions in August 2021 for both companies to begin liquidating their assets, winding up the corporations, and appointing Ira Smith Trustee & Receiver Inc. as the liquidator of both corporations. The desire to wind up both companies came from the very acrimonious litigation between family members.

We were very successful in helping the warring factions, through their respective legal representatives, make adequate provisions so that agreements could be reached in each crucial step of the liquidation process from August 2021 through April 2022. Unfortunately, we hit a snag in May 2022. The shareholders were unable to resolve their impasse due to the pertinent issues regarding the liquidation of both companies. Without court intervention, the stalemate would never end.

We knew that we could still provide value in helping these shareholders, but given their bitter disagreements, it could only be done under a court-supervised compulsory dissolution. Therefore, we prepared a report for the court and first circulated a draft to the stakeholders and their lawyers. We did so for two reasons:

  1. we wanted to make sure that we did not make any factual errors; and
  2. by circulating a draft in advance, we gave everyone the chance to consider consenting to our application to turn the voluntary liquidation into a compulsory dissolution.

We then had our legal counsel set up a court date, which they were thankfully able to get for mid-July. All stakeholders consented to the court-supervised liquidation of one of the two companies. One side also consented for the other company to enter a court-supervised process, but the other side opposed it.

The court made an order to convert the voluntary liquidation into a compulsory liquidation for the one private company that all shareholders consented to. It also set a hearing for mid-September, which will allow the opposing party to present their case, and for the consenting party and the liquidator to do the same. This provision in the OBCA allowing a voluntary liquidator to make the court application definitely prevented a less favourable outcome.

liquidation of company
liquidation of company

Liquidation of company assets: Difference between insolvency and liquidation

There is a big difference between insolvency and liquidation, just as there is a difference between insolvency and bankruptcy. Being insolvent is a very difficult financial condition to be in. When a company or individual cannot pay their bills, debts, or liabilities, it is insolvency. This often leads to either restructuring or bankruptcy.

The liquidation of a corporation under the CBCA, OBCA or respective provincial legislation is a legal process that can be undertaken when the company is not insolvent but the shareholders wish to end the life of the company for other reasons.

In a liquidation, the company’s assets are sold and the proceeds are used to pay off creditors. The remaining funds are distributed to shareholders. This is not the case for an insolvent company, which may be forced to close its doors through an insolvency process such as bankruptcy.

The first step in determining the solvency of a company is to look at its most recent set of financial statements.

Key point takeaways on the liquidation of company assets

I hope you found this liquidation of company assets Brandon’s Blog interesting. The key takeaways from this blog, in my view, are:

  • Liquidation and winding-up of a company must be considered when a company is still solvent but is facing insurmountable problems such as its business is no longer viable or internal fighting makes its survival doomed.
  • While value still remains in the company, it is in the best interests of all stakeholders to get that value for everyone.
  • A liquidator can be very helpful to shareholders in a private company who no longer can effectively manage the companies on their own and there is value to be obtained for them.
  • A voluntary liquidator can apply on its own to court to turn a voluntary liquidation into a court-supervised compulsory liquidation.

Among the many problems that can arise from having too much debt, you may also find yourself in a situation where bankruptcy seems like a realistic option.

If you are dealing with substantial debt challenges and are concerned that bankruptcy may be your only option, call me. I can provide you with debt help.

You are not to blame for your current situation. You have only been taught the old ways of dealing with financial issues, which are no longer effective.

We’re passionate about permanently solving your financial problems with you and getting you or your company out of debt. We offer innovative services and alternatives, and we’ll work with you to develop a personalized preparation for becoming debt-free which does not include bankruptcy. We are committed to helping everyone obtain the relief they need and are worthy of.

You are under a lot of pressure. We understand how uncomfortable you are. We will assess your entire situation and develop a new, custom approach that is tailored to you and your specific financial and emotional problems. We will take the burden off of your shoulders and clear away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We realize that people and businesses in financial difficulty need a workable solution. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We can tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. If any of this sounds familiar to you and you’re serious about finding a solution, let us know.

Call us now for a no-cost consultation.

liquidation of company
liquidation of company
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CORPORATE BANKRUPTCY FAQ: USE OUR HACK TO SOLVE YOUR CHALLENGING INSOLVENT COMPANY ISSUES

Corporate bankruptcy: An overview

Corporate bankruptcy is a legal process by which businesses can reorganize their financial affairs or liquidate their assets. Although bankruptcy can be complicated and stressful, it can provide businesses with a fresh start.

When it does happen, the corporate bankruptcy process can be complicated. Insolvency can take a toll on your company’s employees, customers, and shareholders. A solid understanding of corporate bankruptcy can help you properly restructure and reorganize your company using an insolvency process without killing your business.

Last week, I gave my best FAQ answers to common questions about personal bankruptcy services. A business partnership or sole proprietorship means that the individual(s) operate the business in their personal name. Answers about business bankruptcies for those forms of business would fall under the personal bankruptcy process that was covered in last week’s personal bankruptcy FAQ blog.

When a corporation conducts business, some of the questions, and answers, are different. In this Brandon’s Blog, I answer the most frequently asked questions about corporate bankruptcy.

Can a business declare corporate bankruptcy?

As stated previously, only a corporation can declare corporate bankruptcy. A corporation is its own legal entity. A “person” is eligible for relief under federal bankruptcy law. A “person” is typically defined in the Canadian bankruptcy legislation to include an individual, part of a partnership, a proprietorship, a company, an unincorporated association, a cooperative society, or a cooperative organization.corporate bankruptcy canada

What are the different types of corporate bankruptcy in Canada?

There are 2 different types of bankruptcy that a company can file for under the Bankruptcy and Insolvency Act Canada (BIA). They are:

  1. Liquidation: This is when the insolvent company is unable to pay its debts and its business is no longer viable. The only real option for it is to sell off its assets to repay its secured creditors and unsecured creditors as best as possible since it files for bankruptcy in the priority outlined in the BIA.
  2. Restructuring: This is when the company is insolvent and is incapable to repay its debts due to its financial difficulties, yet all or a sufficient portion of the company’s business is still viable. So, the company negotiates brand-new terms with creditors to lower its financial obligations and also might have the ability to sell some assets to settle its financial debts. Restructuring is the most well-known alternative to bankruptcy. Restructuring under insolvency legislation is also described in the media as bankruptcy protection.

What factors lead to corporate bankruptcy proceedings?

A company always shows signs of trouble before it needs to file for corporate bankruptcy. Some of the early danger signals are:

  • continued history of losses;
  • dwindling cash position;
  • the departure of key management or employees;
  • difficulty meeting loan or lease obligations;
  • the breaking of loan covenants; and
  • difficulty meeting payroll.

Corporate bankruptcy: What does it mean for a company when it liquidates?

As stated above, when a company liquidates it means that the company is unable to pay its debts and its business is no longer viable. The only real option for it is to sell off its assets to repay secured creditors and unsecured creditors as best as possible through bankruptcy and then shut down.corporate bankruptcy canada

What happens to debt in corporate bankruptcy?

If the purpose of the corporate bankruptcy is to shut down and have liquidation of business assets, then we first need to see what the net proceeds of sale from those assets are. The BIA describes the order in which funds must be distributed by a licensed insolvency trustee (formerly called a bankruptcy trustee) in bankruptcy. The order in which the debts must be repaid, in whole or in part, is called the priority.

The priority of the rights of creditors to be repaid in a corporate bankruptcy is:

  1. Trust and deemed trust claimants – These are parties whose property is being held or is deemed to be held in trust for them by the bankrupt corporation. The most common type of deemed trust claim in a corporate bankruptcy is Canada Revenue Agency for unremitted employee source deductions.
  2. Secured creditors – Creditors who hold valid security over the assets of the company get paid next. There could be more than just one secured creditor. Within the secured creditor group, the order of priority is based on the ranking of the security registration dates.
  3. Preferred creditors – These are unsecured creditors who have been given certain priority in a corporate bankruptcy under federal bankruptcy laws. The most common examples in a corporate bankruptcy would be Trustee fees, the Trustee’s lawyer’s fee, the levy payable to the Office of the Superintendent of Bankruptcy Canada on any distribution made by the Trustee to a creditor and certain salary, wages or commissions due to employees.
  4. Ordinary unsecured creditors – This group comes after the preferred creditors. They are all creditors who have supplied goods or services and do not hold any security and do not fit into the definition of a preferred creditor.

The balance of any unpaid debt ends up getting written off on the books of the creditors because there are no assets left in the company to claim against.

How does a company get into corporate bankruptcy and what happens to the company?

The way a company gets into bankruptcy is the exact same way an individual can. For a liquidation, either the company can file a voluntary assignment into bankruptcy. If it is one or more creditors owed at least $1,000 trying to push the company into bankruptcy, then they would file a Bankruptcy Application with the court requesting the court to make a Bankruptcy Order.corporate bankruptcy canada

Why might a company choose to file for corporate bankruptcy protection and restructure under a BIA proposal?

Corporate bankruptcy protection and restructuring under a BIA proposal can provide a company with financial difficulties a much-needed relief and a chance to return to profitability. When a company files for protection, the BIA proposal offers an orderly and reliable process for restructuring, which can be appealing to businesses that have a good chance of a turnaround.

A corporation that has a viable business and can return to profitability after restructuring, with support from creditors, has all the right ingredients for a successful restructuring. This is why a company might choose to file for corporate bankruptcy protection and restructure under a BIA proposal. The company will survive and jobs will be saved.

Who is responsible for developing the reorganization plan for the company?

Reorganization is the restructuring of a business to gain efficiency, improve workflow, and drive profits. Reorganization plans vary in length and detail and take a certain period of time to properly develop. They generally describe desired outcomes and final goals. Sometimes a company will undergo a complete reorganization, while other plans focus on aspects that require reorganization, such as a business unit or department.

The reorganization plan of a company is essential to ensure its smooth transition. The reorganization plan involves restructuring various departments of the business, reducing operational costs, and streamlining the workflow. Writing a reorganization plan requires a lot of time, effort, and money.

When a business downsizes, it reduces its workforce to a smaller number. Such a reduction can be a painful process that even threatens to collapse the business. The company needs to have a plan in place to accomplish this reorganization while still running the business. When downsizing occurs, businesses require reorganization plans. Involving and informing employees of the process makes them more likely to follow new plans and less resistant to change.

All of the various individual department organization plans and product sales plans need to be combined into an overall business plan. This overall business plan must also include financial information to show how the company, emerging from restructuring, will operate profitably.

Now that the overall plan is set, senior management must work with its outside financial and legal restructuring professionals to establish the restructuring commercial proposal or plan of arrangement to be presented to the creditors to be voted upon. An excellent communication program must be put into place so that creditors can understand the benefits to them of supporting and voting in favour of the restructuring proposal. Normally negotiations with certain creditors or creditor groups must take place in order to come up with a final and successful restructuring plan that will gain both creditor support and pass through the legal proceedings of court approval.corporate bankruptcy canada

What becomes of a corporation after corporate bankruptcy?

Going through corporate bankruptcy means your company’s assets have been sold to pay off some portion of its debts. Bankruptcy also by operation of law terminates all of the employees. So the corporation is left with no assets and no employees. All it has is debt and a deficit equal to the total debt less the amount that is shown on the balance sheet for the company’s preferred and common stock.

Therefore, the corporation, as a legal entity, is then left to just float away into the stratosphere. There are only 2 ways that a company can survive a corporate bankruptcy:

  • from the sale of the corporate assets, pay off 100% of all of its business debt plus interest; or
  • file a BIA proposal, obtain creditor support and court approval and successfully complete it.

The first way will almost never happen. The second way can happen if there is a good reason to try to make sure that the corporation as a legal entity survives. A reason for doing this might be that there is value to the shares. After becoming bankrupt, a successfully completed proposal annuls the bankruptcy. By definition, the proposal will discharge all of the company’s outstanding debt. The company is now debt-free.

The common stock may have value because it is a public company and the shares can be relisted on the stock exchange. Now the corporate shell is attractive to a private company that wishes to go public and can do so by amalgamating with this public shell. Alternatively in a private company, or in a public company, there may be significant tax loss carryforwards available for use if this corporate shell is merged with the right kind of profitable company. the only way to use the tax losses is first by owning all the shares.

This is all possible, but, the normal outcome for a company that has gone through a corporate bankruptcy is just to fade away, never to be heard from again.

When a company declares corporate bankruptcy, what will happen to your stock or bond?

When you invest money in a company by investing your capital, your money is legally represented by the stock or bonds that you purchased. When you see a company declaring bankruptcy, it means the company can no longer afford to pay its debts.

If a company just liquidates its assets during corporate bankruptcy, the existing shares will likely be worth very little or nothing at all. For a private company, a successful corporate restructuring might increase the value of the shares as the company will emerge from its restructuring with much less debt than before.

The value of a company’s shares is most likely to lower if it effectively restructures its financial affairs. It might have to issue brand-new stock to creditors that will not be paid back in full, watering down the value of the business’s shares.

As far as corporate bonds are they secured or unsecured against the company’s assets? If secured, they could be repaid in whole or in part depending on where they stand in the secured assets pecking order. If unsecured, then it just becomes part of the larger unsecured creditor pool. In a corporate bankruptcy that is a liquidation, those bondholders will receive their share of any distribution made by the Trustee to the ordinary unsecured creditors if there is such a distribution made.

Corporate bankruptcy and insolvency at a glance

In conclusion, bankruptcy and insolvency of course go together, although many people prefer to think of bankruptcy as an economic failure while insolvency is more accurately a sign of a business’s financial failings.

In the same way I hoped last week’s personal bankruptcy blog helped your understanding, I hope this Brandon’s Blog on corporate bankruptcy was helpful to you in understanding more about the corporate bankruptcy system in Canada.

If you or your company has too heavy a debt load, we understand how you feel. You’re stressed out and anxious because you can’t fix your or your company’s financial situation on your own. But don’t worry. As a government-licensed insolvency professional firm, we can help you get your personal or corporate finances back on track.

If you’re struggling with money problems, call the Ira Smith Team today. We’ll work with you to develop a personalized plan to get you back on track and stress-free, all while avoiding the bankruptcy process if at all possible.

Call us today and get back on the path to a healthy stress-free life.

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