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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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Brandon Blog Post

FROM GRIPPING TAKEOVER TO DISCHARGE: HOW LONG DO RECEIVERSHIPS LAST?

How long do receiverships last in Canada? Introduction

In my September 2021 Brandon’s Blog, THE CANADIAN RECEIVERSHIP EASY BEGINNERS GUIDE, I provided an easy-to-understand guide to understand the receivership process. To summarize, I described that in Canada, a receivership is a legal remedy available to secured creditors to recover outstanding amounts under a secured loan if a company defaults on its loan payments. It may also be used in shareholder disputes to complete a project, liquidate assets, or sell a business.

A court may appoint a receiver to take possession of assets, oversee liquidation proceedings, and distribute the proceeds according to the applicable legal priorities as outlined in Canada’s Bankruptcy and Insolvency Act (BIA). Or, a secured creditor may issue a letter of appointment to the same effect.

It is essential to recognize that receivership and bankruptcy are distinct legal proceedings. Bankruptcy is a formal proceeding, regulated by the BIA, to provide debtors with debt relief when they are financially incapable of paying their unsecured creditors. Conversely, a receivership is a process available to secured creditors to recuperate outstanding debt arising from a secured loan or to address shareholder disputes.

The purpose of this Brandon’s Blog is to answer the question I am often asked: “how long do receiverships last in Canada?”.

how long do receiverships last
how long do receiverships last

How long do receiverships last in Canada? Understanding what receivership is

There are two types of receiverships in Canada: court-appointed receiverships and private receiverships. Court-appointed receivers are appointed by a court to oversee the management and disposition of a debtor’s assets. Private receivers are appointed by secured creditors as part of a loan agreement and the security agreement between the debtor company and the creditor.to manage and sell a business debtor’s assets outside of the court system.

The receiver, regardless if it is a court-appointed receiver or privately appointed receiver, takes control of a company’s assets and business operations to repay outstanding debts to creditors. The receiver’s primary duty is to maximize the value of the assets and distribute the proceeds to the creditors according to their priority ranking. The receiver has the power to sell, manage, or liquidate the assets and may also negotiate with creditors to restructure the company’s debt.

Some key players in a receivership process are:

  • Borrower: The owner of the property who defaults on their loan obligations or faces financial distress.
  • Lender: The secured lender, normally a financial institution, who initiates the receivership action to protect their interest in the property and recover their debt.
  • Receiver: The neutral third party who is a licensed insolvency trustee (formerly called bankruptcy trustees) and is appointed either privately or by the court to take charge of the property and manage it toward a sale or resolution.
  • Court: The judicial authority that grants or denies the receivership request, sets the terms and conditions for the receiver’s appointment and oversees the receivership process.
  • Law firm: The lawyers who are acting for the lender, the borrower and the court-appointed receiver.

The powers and duties of a receiver can vary depending on the nature of the assets or the court order appointing them. Generally, it includes taking control of the assets, managing them in a financially responsible manner, and reporting to the court and parties involved in the dispute.

The duration of receiverships in Canada can vary depending on the specific circumstances of the case, but it typically lasts for a few months to over a year.

how long do receiverships last
how long do receiverships last

How long do receiverships last in Canada?

Several factors will affect the duration of receivership in Canada, including:

  • the complexity of the case;
  • the number and nature of the assets involved;
  • the cooperation of the parties involved; and
  • the efficiency of the court system.

Other factors may include the availability of qualified professionals to manage and sell the assets, the level of creditor involvement and negotiation, and the overall economic and market conditions at the time. Ultimately, the length of receivership will depend on the specific circumstances of each case.

Court supervision is the oversight provided by a court in a court-appointed receivership. The purpose of court supervision is to appoint the receiver, to allow for the receiver to obtain the approval of the court to decisions and actions the court-appointed receiver wishes to take, to ensure that the receiver acts in the best interest of all parties involved and follows the court’s orders and to allow a forum for any aggrieved party to bring their dispute to the court for adjudication.

Termination of a receivership occurs when the court is satisfied that the receiver has fulfilled their duties and objectives or when the receiver’s appointment is no longer necessary. The court terminates a receivership by court order after approving the receiver’s final report and accounts.

how long do receiverships last
how long do receiverships last

How long do receiverships last in Canada? Frequently asked questions (FAQs)

Navigating receiverships can be a tricky and complex situation. Asking questions like “how long do receiverships last in Canada?” is essential to any company dealing with financial hardship. Here I will cover some of the common FAQs associated with receiverships in Canada, and provide an in-depth look at the timeline of these proceedings. It is essential to have a thorough comprehension of receiverships to successfully manage this situation.

What are the differences between bankruptcy vs. receivership?

Receivership is a process to secure the rights of secured creditors, allowing for the control and eventual sale of the assets of a distressed company. Bankruptcy, on the other hand, is a legal process which allows a company in financial difficulty to reorganize its affairs or liquidate its assets under the guidance of an insolvency trustee – providing a safety net to unsecured creditors.

What happens during a receivership process in Canada?

As part of the receivership process in Canada, a receiver is appointed to handle a company’s assets and activities, facilitating the sale of these to settle the company’s debt to creditors.

How does a receiver sell a business or assets?

To sell a business or assets, a receiver has many options available. A receiver can:

  • advertise the assets for sale by running a tender bid sales process;
  • a tender bid sales process could be stand-alone or could be combined with a stalking horse sales process;
  • the assets could be liquidated through a public auction using the services of an auctioneer;
  • the receiver could hand all the assets over to a liquidator in order to sell the assets in an online auction;
  • in certain circumstances, the receiver may wish to hire a professional business broker experienced in that particular industry or assets the receiver took possession of; or
  • for retail store assets, the receiver may sell the entire package of assets and will then run a retail sale to the public.

Regardless of the process chosen, the receiver’s aim is to market and sell the assets or business and obtain the best price for the assets or business under the circumstances.

How does a creditor apply for receivership in Canada?

Secured lenders can apply for receivership in Canada by filing an application to the court under a federal or provincial statute or enforcing their security rights by appointing a receiver privately through a security instrument by way of an appointment letter. A receivership is a remedy that allows a secured creditor to take control of and sell the debtor’s property and assets to collect their secured debt through a private or court appointment process.

Can a receivership be stopped or avoided?

Receivership can sometimes be stopped or avoided through negotiation with the secured creditor(s), restructuring or refinancing of debts, or by finding alternative sources of funding. However, whether or not it can be stopped or avoided depends on the specific circumstances of each case. The cessation of receivership will not be easy unless the secured creditor is being paid out.

how long do receiverships last
how long do receiverships last

How does a creditor enforce a secured loan in Canada?

In Canada, a creditor can enforce a secured loan by appointing a receiver under a private contract or through the court process. Upon appointment, the receiver will seize and sell the secured assets or the assets set out in the court order to recover the amount owed.

However, before being able to appoint the Receiver, there have to be one or more events of default as described in the loan agreement. Then, the lender must be reasonable in allowing the company borrower to cure the default. If the company in default does not remedy the default(s) and the lender has lost confidence, the lender can then make a written demand on the company to repay the entire loan, plus interest and costs and also serve the necessary statutory form on the defaulting borrower.

The lender must give the borrower a reasonable period of time to repay the secured lender’s debt. Reasonable time will vary depending on the unique circumstances of the situation. In Canada, the minimum amount of time that has to be given is 10 days, unless the borrower acknowledges in writing that they can never repay the debt and is waiving the notice period.

Legal options available to recover outstanding loan payments may include sending demand letters, filing a lawsuit, obtaining a judgment and using collection methods such as wage garnishment or asset seizure.

How long does the bankruptcy process take in Canada?

The timeline of a corporate bankruptcy process depends on the uniqueness and complexity of each individual situation. There is no typical timeline, but, it could be a year or more from the start of the bankruptcy until the licensed insolvency trustee is discharged.

How do I liquidate assets in Canada?

When seeking to divest yourself of some assets you have a plethora of choices – in the case of an asset like real estate, you can list it on the public market. Alternatively, you can try to find the right buyer on your own. Or, if you’d like some professional assistance, enlist the help of a savvy broker or financial adviser.

What are the consequences of not paying off secured loans in Canada?

In Canada, if you don’t pay back a secured loan, the lender may reclaim the collateral you put up, personal property like a car or real property such as a house. Don’t let your possessions be taken away! Be sure to make all loan payments in a timely manner.

how long do receiverships last
how long do receiverships last

How long do receiverships last in Canada? Conclusion

So I hope that you now have a good appreciation for receiverships in Canada including the answer to the question “how long do receiverships last in Canada?”. If your company or business is under financial pressure and your secured creditor is about to demand full repayment of all loans, you need immediate professional advice.

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? Are you worried about what your fiduciary obligations are and not sure if the decisions you are about to make are the correct ones to avoid personal liability? Those concerns are obviously on your mind. Coming out of the pandemic, we are also now worried about the 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.

The Ira Smith Trustee & Receiver Inc. team understands 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.

how long do receiverships last
how long do receiverships last
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RECEIVERSHIP IN CANADA: THE COMPLETE STORY OF WHOSE HAPPY RECEIVER IS IT ANYWAY?

Receivership in Canada: What does receivership mean?

I have just read a decision of the Ontario Superior Court of Justice Commerical List dealing with an important aspect of receivership in Canada. The case is concerned with what happens when two equally applicable provincial laws appear to be working at cross purposes in the context of the receivership in Canada process.

I will explain the case and the process of company receivership in Canada. By understanding the process, the case will make more sense.

Secured lenders may enforce their security to recover loans from borrowers who have defaulted. This remedy available to secured creditors when a borrower, usually a company defaults, is known as receivership.

What does going into receivership in Canada mean?

A receivership is a legal process available to secured creditors, whereby a company’s affairs, business and property are entrusted to a receiver to manage and eventually sell the assets. Secured lenders may enforce their security to recover loans from borrowers who have defaulted. This remedy available to secured creditors is known as receivership.

If a business debtor does not make payments or otherwise defaults on a secured loan, the secured creditor would have the right to appoint a receiver to collect the money owed. Before appointing a receiver, a secured creditor must first issue a “Section 244” notice of intention to enforce security. This is a notification that secured creditors must send to defaulting debtors before appointing a receiver. Section 244 refers to that section number in the Bankruptcy and Insolvency Act (Canada) (BIA).

The notice states that the security covers certain assets, that the company in default owes a specified amount to the secured creditor, and that the creditor may enforce the security after 10 days. The company in default may waive the notice period and consent to the appointment of the receiver.

Under the BIA, only a licensed insolvency trustee (formerly called a trustee in bankruptcy) can be a receiver. No other party is licensed to administer a receivership in Canada.

receivership in canada
receivership in canada

Receivership in Canada: What is the difference between a court-appointed receiver and a privately appointed receiver?

A privately-appointed receiver is a licensed trustee who is appointed by a contract between the insolvency trustee and the secured creditor. A private receiver is typically used when there is no dispute to ranking among secured creditors or various claims to ownership of the company’s assets. The powers of a receiver listed in the security document give the privately appointed receiver more limited powers than a court-appointed receiver gets under a court order.

A receiver is court-appointed when the secured creditor makes an application to the court for the appointment of a receiver with more expanded powers. Like a privately-appointed receiver, a court-appointed receiver takes control of a company’s property because of financial distress and when there is a dispute among secured creditors and others as to the ranking of secured claims and ownership of property.

Both kinds of receivers are tasked with protecting and preserving the value of the company or property and are certainly given broader powers by the court to do so.

How is receivership in Canada different from bankruptcy proceedings?

Many people mistakenly use the terms “receivership” and “bankruptcy” interchangeably. However, bankruptcy and receivership are two distinct legal proceedings with different implications.

Bankruptcy vs. receivership can be confusing, but once you understand the key differences between the two, it is fairly straightforward. Whether it is a private appointment or a court-appointed receiver, the differences between bankruptcy and receivership in Canada are the same.

A receivership is a legal remedy available to secured creditors to enforce their security rights against a defaulting debtor. A receiver is appointed to manage the debtor’s property and assets and sell them under a properly run and fair sales process.

The Canadian bankruptcy process is a distinct legal process. An insolvency trustee does not represent secured creditors in bankruptcy proceedings. Instead, under the bankruptcy regime, they represent the unsecured creditors of the bankrupt estate. A corporate debtor may be subject to both bankruptcy and receivership proceedings simultaneously.

One of the major differences has to do with the creditors. In a bankruptcy administration, the bankruptcy trustee must call a meeting of creditors. This is where the insolvency trustee provides its report on the affairs and conduct of the bankrupt debtor and unsecured creditors get to vote on any matters of importance. In receivership, there is no such requirement to hold a meeting of creditors.

receivership in canada
receivership in canada

What are the key distinctions between receivership in Canada and liquidation?

So you know what receivership is by now. The federal BIA doesn’t govern liquidation, that’s done under the provincial Business Corporations Act or Wind-Up Act.

A liquidation is for a solvent company where the shareholders, Officers and directors decide to cease business operations. The company puts up its assets for sale and uses the proceeds to pay off its creditors with cash. Any funds left over are then distributed to the shareholders.

A liquidator can be appointed either privately by the company’s directors or by a court order. Liquidation is therefore different from both bankruptcy and receivership in Canada.

Can individuals be placed into receivership in Canada?

The answer is yes. When a secured creditor wishes to take enforcement action upon the security agreement they have against a debtor’s property, as indicated above, they have the remedy of receivership in Canada. This remedy allows them to collect as much of their secured debt as possible.

There are no restrictions as to who can go into receivership in Canada. One of our more famous (infamous?) receivership cases over the years has been the receivership of the assets, property and undertaking of Norma and Ronauld Walton.

receivership in canada
receivership in canada

Receivership in Canada: Whose receiver is it anyway?

Now for the court case where two different provincial laws caused a fight amongst secured creditors over the appointment of a receiver. The case is Canadian Equipment Finance and Leasing Inc. v. The Hypoint Company Limited, 2618905 Ontario Limited, 2618909 Ontario Limited, Beverley Rockliffe and Chantal Bock, 2022 ONSC 6186. The two competing provincial statutes are the Mortgages Act and the Personal Property Security Act.

The business is conducted through two affiliated entities. One owns the property and the other operates the business. This is quite a typical arrangement.

One creditor funded the purchase of equipment and took PPSA security over it. Another creditor funded the acquisition of the real property and has a traditional mortgage security. The security agreements extend over different assets, and the outcome is usually uncomplicated.

However, when equipment that has been purchased is attached to real property, there is disagreement about whether and how it can be removed, and whether such removal will negatively affect the value of both the equipment and the real property. The question is now more complicated: which creditor’s rights should take priority over this matter?

Both the equipment lender and the mortgagee are seeking to enforce their security. The equipment lender has filed a motion with the court to appoint a receiver over both the operating company (Opco) that owns the pledged equipment and the holding company (Holdco) that owns the real estate. This would allow the receiver to manage and sell the assets of both companies in order to repay the outstanding debt.

In this case, Opco was a commercial marijuana operation that was unable to get off the ground due to its heavy debt load and startup problems.

Although the mortgagee began power of sale enforcement proceedings, they do not object to a receiver being appointed over the equipment only. The mortgagee wishes to continue its power of sale proceedings and opposes the receiver being appointed over the building. The mortgagee in possession is of the opinion that the equipment is attached to the building and cannot be removed.

The mortgagee concurred that the court has the power to assign a receiver over the property of both Opco and Holdco according to section 101 of the Ontario Courts of Justice Act. They stated that, if a receiver is appointed, the receiver needs to be a firm chosen by them.

Both the licensed insolvency trustee firm preferred by the mortgagee and the firm nominated by the equipment lender filed a consent to act with the court.

What are the conditions under which a receiver may be appointed?

The court looked at numerous factors in order to make a decision on whether or not to appoint a receiver, and if so, which one, including those that have historically in receivership in Canada cases been taken into account in such determinations:

  1. Although it is not essential for a creditor to establish irreparable harm if a receiver is not appointed where the appointment is authorized by the security documentation, the court considered if no order is made, will irreparable harm be caused?
  2. The size of the debtor company’s equity in the assets and the need for protection or safeguarding of assets during litigation are important factors to consider when assessing the risk to the security holder.
  3. The kind of property it is.
  4. The potential for the assets to be wasted or dissipated.
  5. The need to safeguard the property until a legal ruling is made.
  6. The parties’ respective balance of convenience needs to be considered when making the decision.
  7. Pursuant to the loan documentation, the creditor has the right to an appointment.
  8. Enforcing the security instrument when the security holder experiences or anticipates difficulties with the debtor.
  9. The principle of appointing a receiver should be approached with caution.
  10. The court will determine whether appointing a receiver is necessary to enable the receiver to carry out its duties efficiently.
  11. The effect a receivership order will have on the parties.
  12. The parties’ conduct.
  13. How long a receivership may last.
  14. The financial impact on the parties.
  15. The likelihood of maximizing return to the parties is increased.
  16. The goal of ensuring the smooth running of the receiver’s duties.

As everyone agreed that all assets of both Opco and Holdco should be sold to maximize recovery for all creditors, but cannot agree on the process by which that should be undertaken, resulting in the entire process being stalled, the judge was satisfied that it is just and convenient to appoint a receiver.

The court found that either proposed receiver was acceptable and decided that the receiver nominated by the mortgagee would be appointed by the court to administer all assets. The receiver would eventually come back to court with a sales plan to maximize the value of all the assets subject to the security of all stakeholders.

receivership in canada
receivership in canada

How the entrepreneur can avoid receivership in Canada

As a business owner, the way to avoid the receivership process is long before financial difficulties ever become serious financial problems. Here are a few tips on how to do just that:

  • Keep a close eye on your finances. This means regularly reviewing your income and expenses, and making sure you have a good handle on your cash flow.
  • Stay current on your bills. This includes not only making timely payments but also staying on top of any changes in your billing terms or amounts.
  • Keep good records. This means having up-to-date financial statements and documentation for all of your income and expenses.
  • Make a plan. If you do find yourself in a financial bind, have a plan in place for how you’ll get out of it. This may include negotiating with creditors, seeking new financing, or making cuts to your expenses.
  • Seek professional help from a licensed insolvency trustee with commercial insolvency experience. If your business is viable and you seek help early enough, there may be many options. The most common ones are refinancing with or without financial restructuring. Reviewing your business allows us to make restructuring recommendations allowing your viable company to become healthy and profitable once again.

Receivership in Canada summary & speak with a licensed insolvency trustee

I hope you enjoyed this receivership 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.

receivership in canada
receivership in canada

 

 

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BANKRUPTCY AND INSOLVENCY ACT OF CANADA TR1ES TO GIVE EVERYONE UNDENIABLE EQUITABLE TREATMENT

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic. Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

If you would prefer to listen to the audio version of this Brandon Blog, please scroll to the very bottom and click play on the podcast.

bankruptcy and insolvency act of canada
bankruptcy and insolvency act of canada

What is the purpose of the Bankruptcy & Insolvency Act of Canada?

With all the talk of the economy, supply chain problems and the uncertainty of the future these days, it’s no wonder that many people aren’t sure how they will end up when things become “normal” again.

For Canadian people and businesses with too much debt, an insolvency proceeding under the Bankruptcy and Insolvency Act of Canada might just be the answer to getting back to a healthy stress-free life. Notwithstanding that using this federal statute can be a very effective strategy for managing financial difficulties, it is a very scary one that people do not like to talk about.

The Bankruptcy and Insolvency Act of Canada is based on the principle of balancing fairness, equity and a fresh start. A recent court decision in Saskatchewan exemplifies these principles. In this Brandon Blog, I describe a little bit about the Bankruptcy and Insolvency Act of Canada, explain the court decision and how the court used these principles in reaching its decision.

What is in the Bankruptcy and Insolvency Act of Canada?

Canadian citizens, businesses, and companies who run into financial difficulties can turn to the Bankruptcy and Insolvency Act of Canada for assistance. This federal legislation contains the laws, rules, and guidelines that all involved parties must abide by. It details how different financial options work legally, and defines the roles of the various stakeholders – the Office of the Superintendent of Bankruptcy, the Licensed Insolvency Trustees, the debtor, and the secured creditors and unsecured creditors (both preferred and ordinary).

Despite the fact that provincial legislation in Canada may overlap or affect stakeholder rights, federal bankruptcy legislation has priority over provincial legislation in insolvency matters. Therefore, provincial governments cannot do indirectly what is prohibited directly. However, there are cases where provincial laws will still apply. The laws surrounding property exemptions and enforcement of court orders differ from province to province and territory to territory. These provincial and territorial regulations continue to apply even under bankruptcy laws.

It is the Bankruptcy and Insolvency Act of Canada that governs all bankruptcies and proposals (either Division I or consumer proposals) in Canada. Receiverships are also governed by the Bankruptcy and Insolvency Act of Canada. The Laws of Canada – Bankruptcy and Insolvency, are meant to give the honest but unfortunate debtor, be it a person, business or company, a fresh start in life.

bankruptcy and insolvency act of canada
bankruptcy and insolvency act of canada

Growth in consumer proposals and business proposals

A person who files for the personal bankruptcy process submits an assignment in bankruptcy and related documents to a Licensed Insolvency Trustee. These documents outline the person’s assets, liabilities, income, and expenses. An insolvent person’s reason for insolvency must also be included in the documents. Individuals typically give the reason for not being able to pay their bills in a timely manner. Consumer proposals require very similar documentation as bankruptcy, except for the assignment in bankruptcy document.

In order to file a Division I Proposal under the Bankruptcy and Insolvency Act of Canada, insolvent companies must describe their assets and liabilities and provide a realistic cash flow statement documenting how they intend to operate under the proposed insolvency process. They must also explain how they became insolvent. Personal insolvency is less complex than corporate insolvency.

Despite a long-term decline in individual bankruptcy filings, consumer proposals have gained in popularity among individuals. The decrease in bankruptcy filings and the increase in proposals can be attributed to several different reasons. Under a proposal, a financial reorganization or restructuring is what is done. Bankruptcy is simply a liquidation.

Regardless of whether it is a consumer proposal, a Division I proposal, or bankruptcy, the Bankruptcy and Insolvency Act of Canada governs these proceedings. The Companies’ Creditors Arrangement Act, another federal government statute, governs reorganizations of very large corporations. This is especially true if there are separate insolvent corporations under the corporate umbrella in different countries, requiring foreign proceedings.

Why does one choose a consumer proposal instead of filing for bankruptcy?

A consumer proposal has many advantages over bankruptcy proceedings. By filing a consumer proposal, you’re able to retain the property you own such as your home, car, boat, etc. and extinguish all of your debts while only paying back a portion. A consumer proposal doesn’t require any of those items to be sold, as long as you can afford them with the monthly payment made under the proposal and your other living expenses.

Changing your lifestyle can help you get out of debt more quickly with a consumer proposal. Bankruptcy means losing everything, except for some assets that are exempt under provincial laws. You have equity if you do not fully encumber your assets by way of secured loans from financial institutions, your house, car, boat, furniture, clothing, jewelry, or anything else of value. You can keep this equity in a consumer proposal, but you will lose it in bankruptcy.

The main reason why people should attempt to perform a successful consumer proposal instead of going straight into bankruptcy under the Bankruptcy and Insolvency Act of Canada is because of this. As you will see in the recent court case I am about to describe, if you don’t pay close attention to how you conduct your affairs once you declare bankruptcy, you might be exposed to another minefield even after receiving your discharge.

bankruptcy and insolvency act of canada
bankruptcy and insolvency act of canada

The Bankruptcy and Insolvency Act of Canada case

This judgment of the Registrar in Bankruptcy of the Queen’s Bench for Saskatchewan was released on October 6, 2021. It is a relatively simple case, but it described so well the equitable nature of the Bankruptcy and Insolvency Act of Canada.

In this legal process case, there are two unsecured creditors who are the Applicants. They jointly loaned money to an individual debtor, who is now an insolvent debtor and a bankrupt individual on an unsecured basis. They also filed their proof of claim for this debt with the insolvency trustee. They then applied for an order pursuant to s. 69.4 of the Bankruptcy and Insolvency Act of Canada lifting the bankruptcy stay that is in effect with regard to the bankrupt.

The purpose of section 69.3 is to prevent bankruptcy creditors from initiating or continuing enforcement proceedings against a bankrupt debtor. In bankruptcy, a creditor has no recourse against the debtor or the debtor’s property, and may not commence, continue, or seek any action for the recovery of money for a claim that is provable in the bankruptcy.

Nevertheless, Section 69.4 allows a court to lift the stay if it decides that the applicant has established that the continued operation of the stay is likely to cause material harm to him or her, or if there are other equitable grounds for lifting the stay.

The case: How the Bankruptcy and Insolvency Act of Canada works for fairness and equity

The bankruptcy process generally compromises the debt obligation of the bankrupt, resulting in creditor claims run through the bankruptcy claims process. Generally, unsecured creditors lose their right to enforce their types of debts and, as a result, realize less than 100% of their debt. Some creditors do not receive anything from an estate in bankruptcy.

There are two major objectives of bankruptcy (and consumer proposal or commercial proposal) proceedings under the Bankruptcy and Insolvency Act of Canada. For one thing, it provides an equitable system for distributing the proceeds from the estate in bankruptcy among the bankrupt’s unsecured creditors. According to the laws Of Canada – bankruptcy and insolvency, unsecured creditors are expected to be treated predictably and fairly. However, it does not guarantee that creditors will receive a dividend in all cases.

Secondly, it is intended to give an honest but unfortunate bankrupt an opportunity to be freed from the crushing burden of debt and receive financial rehabilitation to become a contributing member of society. That is one reason why every person who does an insolvency filing must attend two financial counselling sessions.

In bankruptcy, an automatic stay allows the bankrupt to re-establish himself or herself financially and restart his or her financial affairs so that he or she can meet his or her credit obligations moving forward without being hampered by debt enforcement proceedings.

bankruptcy and insolvency act of canada
bankruptcy and insolvency act of canada

The case: Role of unsecured creditors trying to lift the stay of proceedings

The Registrar, in this case, followed the reasoning of a 2001 decision from the Court of Appeal for Ontario. It is far from routine to lift the stay, and therefore the court has to make sure that the reasons for lifting the stay are sound and consistent with the objectives of the Bankruptcy and Insolvency Act of Canada.

In the case of Mcculloch (Re), 2021 SKQB 259 (CanLII), the two creditors were alleging that Ms. Mcculloch induced them to loan her the money on a fraudulent basis. It was their argument that they should be allowed to continue legal action against the bankrupt so that they could prove in a separate court action that the debt was a result of fraud and that, therefore, their claim would survive the bankruptcy and her discharge. In addition, they stated that they would be more severely affected than the commercial creditors if the bankruptcy stay bars them from taking action against McCulloch.

According to the Registrar:

  1. Bankruptcy often disproportionately affects individual creditors over commercial creditors. Generally, creditor relationships are based more on trust than on cost-benefit analysis. When advancing a loan, the commercial creditor such as a credit card company, unpaid suppliers, or a sophisticated secured creditor, generally assesses the risk and determines whether it can absorb the loss in the event of default. Individual lenders do not usually do this.
  2. If this form of prejudice is sufficient to support lifting the stay, other individual creditors may be able to apply to lift the stay merely on the basis of relative disadvantage to individual creditors. Lifting the stay on this basis is inappropriate.
  3. The Trustee objects to this application on the grounds that it will significantly increase the costs of bankruptcy administration at the expense of other creditors. In this case, the Registrar sided with the Trustee.
  4. According to the lawyer representing the bankrupt, the creditors have not established any material prejudice or other equitable grounds for lifting the stay. The Registrar agreed.
  5. Due to the potential cost increases to other creditors, the equities are opposed to lifting the stay.
  6. However, these 2 creditors still have rights in the bankruptcy. The court still has the right to hear their submissions at the discharge hearing. Additionally, they continue to have the right to pursue Ms. McCulloch once the bankruptcy proceedings are over.
  7. At this time, lifting the stay would not benefit the applicants or their creditor claims since during the bankruptcy, Ms. McCulloch’s either the bankruptcy vests her assets in the Trustee for the benefit of the creditors or remain exempt from execution under Saskatchewan law. This disposition of property makes it simply impossible for these creditors to realize much from this stage, prior to the bankrupt’s discharge.
  8. In this case, the equity does not support the court’s exercise of its authority to declare that the bankruptcy stay, established under section 69.3 of the Bankruptcy and Insolvency Act of Canada, does not apply to this litigation.

As a result, the Registrar denied the applicant’s request for what they thought was their legal rights in lifting the stay. Clearly, the Registrar was guided by the Bankruptcy and Insolvency Act of Canada‘s aims of fairness and equity to all stakeholders.

Bankruptcy and Insolvency Act of Canada summary

I hope you enjoyed this Bankruptcy and Insolvency Act of Canada Brandon Blog post. Are you worried because you or your business are dealing with substantial debt challenges and you assume bankruptcy is your only option? Call me. It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties while avoiding bankruptcy. We can get you the relief you need and so deserve.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow 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 understand that people and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do. We help many people and companies stay clear of bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost consultation.

We will get you or your business back up driving to healthy and balanced trouble-free operations and get rid of the discomfort factors in your life, Starting Over, Starting Now.

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic. Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

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THE CANADIAN BANKRUPTCY AND INSOLVENCY ACT EASY BEGINNER’S GUIDE

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

What is in the Canadian Bankruptcy and Insolvency Act?

Canada’s bankruptcy and insolvency laws are governed by two major pieces of federal legislation: the Canadian Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act. Additionally, provincial legislation intersects with the Canadian Bankruptcy and Insolvency Act. During bankruptcy, a debtor can keep certain types of property based on provincial legislation. Details may differ amongst each Canadian province. Provincial governments and territories have their own laws regarding property exemptions, court orders, and debt collection.

The Canadian Bankruptcy and Insolvency Act (often referred to as the “BIA” or the “Bankruptcy Act“) is a federal government statute that sets out the rules and procedures governing insolvency proceedings in Canada. These rules and procedures will apply to all corporations, individuals and partnerships that are parties to an insolvency filing. The whole point of bankruptcy legislation is to allow the honest but unfortunate debtor to shed themselves of their debts and to allow for the sale of assets or reorganization and refinancing of insolvent persons so that there is also fairness for the different claims of creditors.

Under the Companies’ Creditors Arrangement Act (CCAA), financially troubled corporations are given the opportunity to restructure their affairs in order to avoid bankruptcy. A corporation must have debts of at least $5 million to qualify for the CCAA.

The Canadian insolvency landscape is a complex one, with many different insolvency proceedings being used to deal with many different types of debtors. In this Brandon Blog, I provide an easy beginner’s guide of the Canadian Bankruptcy and Insolvency Act, as a primer into Canadian insolvency legislation and the administration of estates.

This Brandon Blog is not about the nuts and bolts of filing for bankruptcy. Other blogs I have written cover that topic and more. You can use the search function above to search for those Brandon Blog topics.

What is the purpose of the Canadian Bankruptcy & Insolvency Act?

Everyone knows you should do your best to stay out of too much debt, but for many people, it’s an impossible feat. When you’re over your head in debt, you’re having to keep up just to pay the interest on your debt. When you are spending more than you are making, you can’t pay your bills on time, or your assets when liquidated are worth less than your total liabilities, you are insolvent. Insolvency is the main test to see if you, or insolvent companies, qualify to start a bankruptcy process or a formal restructuring process, either under the Canadian Bankruptcy and Insolvency Act or the CCAA.

The Bankruptcy Act was designed to help Canadians who find themselves in financial difficulty. It is the main piece of Canadian insolvency legislation that governs bankruptcy proceedings, receivership and personal and corporate restructuring proceedings through consumer proposals and commercial proposals. Commercial proposals are also available for those people with consumer debt levels greater than the amount allowed to qualify for a consumer proposal. All Canadian bankruptcies, proposals and receiverships are governed by the Act. It contains bankruptcy laws, rules and guidelines for all stakeholders: the Superintendent of Bankruptcy (which is part of Industry Canada) the Licensed Insolvency Trustee, the debtor, and the creditors.

canadian bankruptcy and insolvency act
canadian bankruptcy and insolvency act

What options are available under the Canadian Bankruptcy and Insolvency Act?

The Canadian Bankruptcy and Insolvency Act provides a number of ways to deal with a financially troubled company or person. Most involve a court-supervised process. The options for a person or business in financial trouble and not able to right themself or itself are:

  • Consumer proposal

It is an offer to your creditors to repay a portion of your unsecured debt obligations in exchange for their elimination (with certain limited exceptions as laid out in the Bankruptcy Act). You can qualify if you owe $250,000 or less, excluding any debts registered against your home, such as mortgage debt or secured home equity line of credit debt.

A person proposes a plan to make monthly payments to the Licensed Trustee acting as the consumer proposal Administrator. The total amount offered to your unsecured creditors must be agreed upon by them. Within 60 months, you must pay off the entire amount accepted. Creditors typically accept a total payment of 25% or less of your total unsecured debt. Individual situations vary, however.

A successfully completed consumer proposal allows the insolvent person to eliminate their debts and avoid an assignment into bankruptcy.

  • Commercial proposal

Commercial proposals are also known as Division I proposals. The reason for this is because it is provided under Canadian Bankruptcy and Insolvency Act, Part III, Division 1 (consumer proposals are found under Part III Division II). An insolvent corporation or person can use it for restructuring proceedings. When a consumer’s debt exceeds the limits of a consumer proposal, a “commercial proposal” would be filed. If a definitive commercial proposal cannot be immediately prepared but the debtor needs to file in order to invoke the stay of proceedings (discussed in the next section), they can get the immediate protection they need by first filing a Notice of Intention To Make A Proposal.

A commercial proposal works in a very similar way to a consumer proposal, except for some differences as follows:

    • A commercial proposal may have various classes of creditors. A consumer proposal normally does not.
    • Unlike for a person, there is no streamlined reorganization process for companies. Therefore, even if its debt is $250,000 or less, a company cannot file a consumer proposal.
    • A meeting of creditors must be held as part of a commercial proposal. If the Official Receiver (being a representative of the Superintendent of Bankruptcy), doesn’t wish to chair the meeting, it can be delegated to the Trustee. A creditor who has filed a valid proof of claim has voting rights. They have the right to vote ahead of the creditors’ meeting by using a voting letter or in person. An official meeting of creditors is only held in a consumer proposal if 25% of the proven creditors’ claims request one.
    • In a consumer proposal, if a meeting is not requested, the consumer proposal is deemed approved and there are no voting rights to be concerned about. If a meeting is requested, then the creditors who attend the meeting can vote by ordinary resolution for the acceptance of the consumer proposal. In a commercial proposal, it is a two-pronged test: 3/4 of the $ value voting AND a majority in the number of those voting.
    • If the commercial proposal is voted down, the person or company is immediately deemed to have filed an assignment in bankruptcy. There is no such automatic bankruptcy if a consumer proposal is not accepted.

As soon as the commercial proposal is accepted by the creditors and approved by the court, the debtor starts making the payments promised in the proposal to the Insolvency Trustee. Once full payment has been made, the trustee in bankruptcy will issue to the person or company their Certificate of Full Performance. At this point, all provable claims, regardless of whether they filed a proof of claim or not.

As part of a successful restructuring process, the Trustee will run a claims process, vet every proof of claim to ensure that they are valid and that only an allowable claim is considered for distribution purposes. The Trustee will then comprise a scheme of distribution in order to distribute the funds promised to the creditors in the commercial proposal.

Restructuring under either the Canadian Bankruptcy and Insolvency Act or CCAA becomes possible for companies with debts greater than $5 million.

  • Receivers and Secured Creditors

Receiverships are remedies for lenders who have loaned money out and taken security over the debtor’s assets. It is most common in Canada for financial institutions to be lenders to Canadian businesses. As long as their loan documents, including the security agreement, allow for it in writing, a secured creditor may appoint a receiver when a debtor defaults on secured debt. Secured creditors and receivers are subject to certain requirements under the Canadian Bankruptcy and Insolvency Act.

Receivership relies both on provincial laws and federal legislation. The Bankruptcy Act specifies several main requirements for receivership, including:

    • It is not permissible to enforce a security interest on the business assets of an insolvent person unless the secured creditor has given 10 days prior notice in the prescribed form and manner.
    • Only a Licensed Insolvency Trustees (formerly called Trustees in Bankruptcy) can act as a receiver.

The secured creditor can appoint the receiver privately or with court approval.

A private receiver’s primary responsibility is to the secured creditor who appointed it. A court-appointed receiver is an officer of the court who protects the interests of all creditors of the debtor company.

Private receivers usually have from the security documents the power to run the debtor’s business and sell the debtor’s assets through auctions, tenders or private sales.

A court appointment is also preferred over a private appointment when there are significant claims against the debtor or its property as well as litigation or a threat of litigation. It is according to the provincial rules of court and s. 243 of the BIA (National Receiver) that a court may appoint a receiver.

The receivership order normally stays proceedings (discussed below in the next section) against the receiver, the debtor, and its property. In terms of its purpose, it gives the receiver authority to manage the assets of the debtor, to borrow money against the assets to repay a loan, to sell the assets of the debtor with the approval of the court, and to commence and defend litigation on behalf of the debtor. A privately-appointed receiver does not enjoy a stay of proceedings.

  • Bankruptcy

If a personal or commercial restructuring is not possible, then the insolvent person or company has no choice but to file for bankruptcy. The first step in dealing with insolvency is to consult an insolvency trustee. You can learn about the bankruptcy administration process and your legal rights from Trustees in Bankruptcy so you can make an informed decision. A candid discussion about how much you earn, what assets you own, and what types of debts you have can help you decide if bankruptcy is the best choice for you.

Here is what the Canadian bankruptcy procedure is all about. After the bankruptcy assignment has been completed, the Trustee submits it to the Office of the Superintendent of Bankruptcy Canada. All legal obligations will be handled by the Trustee once the assignment has been filed. Your credit­ors will no longer receive payments directly from you.

The Trustee administers your bankruptcy. No more lawsuits or wage garnishments for you. Depending on your province’s law, some of your assets will certainly be exempt. The bankruptcy vests your non-exempt assets in the Trustee. The Trustee will sell them. According to the Canadian Bankruptcy and Insolvency Act, the proceeds will be for the benefit of the bankrupt estate and there could be a scheme of distribution among your preferred creditors and ordinary unsecured creditors.

In the administration of bankruptcy, the Trustee will send your creditors a notice of bankruptcy. You must attend a creditors’ meeting if one is called. Additionally, you will need to attend two counselling sessions. Canadian insolvency legislation in Canada includes rehabilitation programs to help individuals regain financial stability.

Finally, you may need to make payments toward your debt. “Surplus income payments” ensure that people who declare bankruptcy and have sufficient income contribute to paying back a portion of their debt. Your debts will eventually be discharged, relieving you from the obligation of repaying most of the debt you had on the day you filed for bankruptcy.

Despite the fact that most debts can be discharged, some cannot, namely:

  • alimony and child support;
  • court fines and penalties;
  • debts related to fraud; and some
  • student loans.

You will suffer credit damage for several years after filing for bankruptcy. After your debt is discharged, you can start rebuilding your credit. Although it’s not ideal, it will lift the burden from your shoulders and solve the debt problems you couldn’t resolve on your own.

Canadian Bankruptcy and Insolvency Act: Can bankruptcy protect you from creditors?

In addition to bankruptcy, any filing listed above under the Canadian Bankruptcy and Insolvency Act will protect you from creditors. In fairness to all stakeholders, the filing calls for a “time out” after which no claims for money, lawsuits, or collection efforts are permitted. In legal jargon, we call this a stay of proceedings.

By virtue of the individual’s bankruptcy or insolvency, you may not terminate, amend, or accelerated pay, or claim the term of any agreement. When an insolvent person files a notice of intention or a proposal, a similar provision is made.

Just like in bankruptcy, if you file a notice of intention or a Division I proposal or Division II proposal, all proceedings automatically stay and no creditor is entitled to take any action against the debtor or to pursue any execution or other proceeding for the recovery of a claim provable.

Commercial proposals are normally worded so that Directors of insolvent companies who have filed notices of intention or proposals enjoy similar protection.

canadian bankruptcy and insolvency act
canadian bankruptcy and insolvency act

A word on cross-border insolvencies

Many of the large CCAA reorganization filings in recent times have been cross-border insolvencies. Canadian courts prefer that cross-border insolvencies proceed as a single process with one jurisdiction acting as the primary entity. The Canadian court examines whether the Canadian case should be considered the main proceeding in order to determine whether it is significant and connected to Canada.

The other jurisdiction (most often the U.S.) usually recognizes the Canadian court’s authority when the court believes the insolvency action should be handled, for the most part, in Canada. Likewise, the opposite is also true.

Canadian Bankruptcy and Insolvency Act: Personal bankruptcy

canadian bankruptcy and insolvency act
canadian bankruptcy and insolvency act

Canadian Bankruptcy and Insolvency Act summary

I hope you found this Canadian Bankruptcy and Insolvency Act Brandon Blog informative. With too high household debt levels and not enough wealth, you are insolvent. You can choose from several insolvency processes to get the debt relief that you need and deserve. It may not be necessary for you to file for bankruptcy.

If you or your business are dealing with substantial debt challenges, you need debt help, and you assume bankruptcy is the only option, call me.

If you’re thinking about bankruptcy, you’re probably in a situation where you’re overwhelmed, frightened, and feel like you’re alone. That’s natural and it is not your fault.

It’s good that you’ve come to this site, where you’ll find answers to your questions, sort through your options, and discover that you can get help. You’re not alone, and the professionals at Ira Smith Trustee & Receiver Inc. are committed to helping you find a debt solution that’s best for you.

It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties with debt relief options as an alternative to bankruptcy. We can get you the relief you need and so deserve. Our professional advice will create for you a personalized debt-free plan for you or your company during our no-cost initial consultation.

You are under a lot of pressure. Our team knows how you feel. You and your financial and emotional problems will be the focus of a new approach designed specifically for you. With our help, you will be able to blow away the dark cloud over your head. We will design a debt settlement strategy for you. We know that we can help you now.

We understand that people with credit cards maxed out and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do as we know the alternatives to bankruptcy. We help many people and companies stay clear of filing an assignment in bankruptcy.

Because of this, we can develop a new method for paying down your debt that will be built specifically for you. It will be as unique as the economic problems and discomfort you are experiencing. If any one of these seems familiar to you and you are serious about getting the solution you need to become debt-free, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost consultation.

canadian bankruptcy and insolvency act
canadian bankruptcy and insolvency act

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

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Brandon Blog Post

REVERSE VESTING ORDER: 1 REMARKABLE CREATIVE WAY TO DO FINANCIAL RESTRUCTURING

reverse vesting order

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

If you would prefer to listen to the audio version of this Brandon Blog, please scroll to the very bottom of the page and click play on the podcast.

Vesting order and reverse vesting order

In a corporate insolvency case, a court may grant a vesting order, which authorizes the sale of a company’s assets to the buyer once the purchase price is paid. A vesting order vests ownership in the purchaser as a result of this court order. This is proof that the purchaser is entitled to transfer the assets into its name. No matter what insolvency process is used, this is the use of a vesting order.

In the past year or so, a new trend has emerged regarding the sale of the assets of insolvent companies as part of a restructuring under the Companies’ Creditors Arrangement Act (CCAA). That new trend is the use of a reverse vesting order.

In this Brandon Blog, I explain what a reverse vesting order is and why I believe its use will be a significant feature of Canadian firm restructurings in 2021 and beyond.

Reverse vesting order – A powerful tool for maximizing recovery in complex insolvencies

A reverse vesting order can be very useful in complex insolvencies. A timely recovery can benefit creditors, and the process can maximize recoveries for all parties. Reverse vesting orders are a good solution for an insolvent debtor corporation when:

  • there are a large number of secured creditors, unsecured creditors and assets;
  • all of the assets do not have an immediate buyer;
  • the company is insolvent; and
  • the company must deal with unwanted assets and a group of creditors in a particular way.

It is best used in a large-scale CCAA corporate restructuring but is not limited to that.

reverse vesting order

Reverse vesting order as a third restructuring tool

There have traditionally been two insolvency processes available to licensed insolvency trustees, insolvency lawyers, and company stakeholders. The two are (i) liquidating assets; and (ii) reorganizing companies. In general, assets are liquidated through either receivership or bankruptcy. Incorporated companies can restructure either under the provisions of the Bankruptcy and Insolvency Act (Canada) (BIA) or, for larger and more complex restructurings, under the CCAA. It is obvious that assets must be sold in order to liquidate them.

Sometimes, as part of a corporate restructuring, there are redundant and unwanted assets that can be sold to raise cash. The question is, what if the real value, especially a going-concern value of a company in a commercial insolvency case is not in its tangible assets. Rather, its real value lies in:

  • the ability to operate in a specific industry and such licenses cannot be sold by their very nature and wording – think of the cannabis and nursing home industries as two examples;
  • tax losses and tax attributes that can be monetized if the licensed insolvency trustee is also able to take over the shares; or
  • being listed on the stock exchange and thus as a public company having a greater market value than a private corporation.

As a result, it is extremely difficult to realize any value from such assets.

What is the importance of the reverse vesting order? How a reverse vesting order works will tell you all you need to know about why it is important as a third restructuring tool. Under a reverse vesting order, a newly incorporated residual corporation is added as a party to the CCAA proceedings.

As part of the CCAA restructuring, the operating debtor company transfers undesirable assets and liabilities to the newly incorporated non-operating company. With its assets and liabilities selected by the purchaser, the debtor company holds only the desirable assets and liabilities, which means its common shares can be sold rather than the company’s assets. As a result, valuable permits, contracts, tax losses, and statutory authority are preserved, which can otherwise be lost in a disposition of assets.

Why is reverse vesting order important?

A reverse vesting order is an alternative to the traditional CCAA plans of arrangement, particularly for companies operating in highly regulated environments or when there is no value remaining after the realization of secured debt and the parties intend to continue the running of the debtor company.

A reverse vesting order is an alternative to the traditional CCAA plans of arrangement, particularly for companies operating in highly regulated environments or when there is no value remaining after the realization of secured debt and the parties plan to continue operating the debtor company.

By using a reverse vesting order, existing corporations, which have been streamlined to become solvent through an innovative solution, are transferred to new investors instead of desirable assets being sold through a court-approved sale. The debtor corporation that initially filed for bankruptcy protection under the CCAA can now be removed from the restructuring proceedings. There are certain unwanted assets and unwanted liabilities that are transferred to the newly incorporated residual corporation. There can then be asset sales allowing for some sort of distribution to creditors (either in a plan of arrangement or in bankruptcy) in order to allow some creditor recovery.

A reverse vesting order may prove to be the most efficient approach to facilitate a going concern operation transfer through restructuring proceedings, letting businesses emerge from CCAA proceedings quickly without having filed a plan of arrangement, while preserving key attributes of the corporate entity and its existing corporate structure.

Legal challenges to the use of reverse vesting orders have been unsuccessful. I would like to discuss the case of Nemaska Lithium Inc.reverse vesting order

Reverse vesting order issued by Québec Superior Court after first contested hearing

In December 2019, Nemaska Lithium Inc. and related companies (Nemaska Lithium or the Nemaska entities) commenced CCAA proceedings. A lithium mining project was developed in Quebec by them. A CCAA judge approved an uncontested sale or investment solicitation process (SISP) in January 2020 that led to the acceptance of a bid that was subject to the condition that a reverse vesting order is issued.

A proposed reverse vesting order provides that Nemaska entities will be acquired by the bidder free of the claims of the unsecured creditors, which will be transferred as part of a pre-closing reorganization to a newly incorporated non-operating company.

The reverse vesting order will allow the purchaser to continue to operate the Nemaska entities in a highly regulated environment by maintaining their existing permits, licences, authorizations, essential contracts, and fiscal attributes. In essence, it is a credit bid in which the shares of the Nemaska entities are acquired in exchange for the assumption of the secured debt.

A shareholder (who was also an alleged creditor) filed motions opposing the reverse vesting order issuance on multiple grounds, including:

  • a vesting order cannot be granted for anything other than a sale or disposition of assets through a vesting order for sales of assets;
  • the reverse vesting order is not permissible under the CCAA because it allows the Nemaska entities to exit CCAA protection outside of a plan of arrangement or plan of compromise;
  • this reverse vesting order contemplated a corporate reorganization that is not permitted by securities laws; and
  • in light of the proposed transaction, the directors and officers of Nemaska Lithium Inc. should not be released.

The Honourable Justice Gouin, J.S.C., reviewed and assessed:

  • the SISP process which led to the offer;
  • the lack of alternatives to the offer;
  • the potential harm to Nemaska Lithium‘s stakeholders, including its employees, creditors, suppliers, and the Cree community;
  • stopping the restructuring process to relaunch a SISP in the future following what was already a thorough examination of the market or, alternatively,
  • bankrupting the Nemaska entities.

In light of all these factors, the judge approved the reverse vesting order on October 15, 2020. Limiting the remedies available under the CCAA would unnecessarily hinder the development of innovative solutions for more complex commercial and social issues in Canadian insolvency matters.

The decision and formal recognition of reverse vesting order by the Court of Appeal

Leave to appeal the CCAA judge‘s decision was sought by the parties who objected to the reverse vesting order being made. The Appellate Court carefully considered the judge’s decision-making process and particularly that the Québec Superior Court judge relied extensively on the principles set out by the Supreme Court of Canada in the matter of 9354-9186 Quebec inc. c. Callidus Capital Corp., namely the:

  • development of CCAA proceedings and the role of the CCAA supervising judge;
  • remedial objectives of Canadian insolvency laws to provide timely, efficient, and impartial resolution of a debtor’s insolvency, secure fair and equitable treatment of creditors’ claims against a debtor, protect the public interest, and balance the costs and benefits of restructuring or liquidating the debtor company’s assets;
  • CCAA‘s goal of preventing social and economic losses from liquidating insolvent companies by facilitating their reorganization and survival as a going concern; and
  • CCAA judge‘s broad discretion under s. 11 of the CCAA in an effort to advance the CCAA’s remedial objectives while taking into account three fundamental factors that the debtor company application must prove: (1) the requested order is appropriate in the circumstances, and (2) good faith on the part of the applicant, and (3) the applicant has been acting with due diligence.

It was determined by the Court of Appeal judge that the risk of potential harm to stakeholders outweighed any legal merits of any arguments raised by the opposing parties. Therefore, the Quebec Court of Appeal denied the leave to appeal the decision of the CCAA judge.

Canada’s Supreme Court has denied leave to appeal. Having now established reverse vesting as an option for CCAA restructurings, the law is now set in stone.

The Nemaska case is the first reverse vesting order transaction to withstand judicial scrutiny in Canada and reaffirms the flexibility of CCAA proceedings for distressed M&A transactions of distressed businesses.reverse vesting order

Reverse vesting order and distressed M&A opportunities

I hope that you found this reverse vesting order Brandon Blog interesting. Problems will arise when you or your company are in business distress, cash-starved and cannot repay debts. There are several insolvency processes available to a company or a person with too much debt.

If you are concerned because you or your business are dealing with substantial debt challenges, you need debt help and you assume bankruptcy is your only option, call me.

It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties with debt relief options as alternatives to bankruptcy. We can get you the relief you need and so deserve. Our professional advice will create for you a personalized debt-free plan for you or your company during our no-cost initial consultation.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow 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 understand that people with credit cards maxed out and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do as we know the alternatives to bankruptcy. We help many people and companies stay clear of filing an assignment in bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need to become debt-free, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost consultation.

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

Call a Trustee Now!