The “fraud against the bankruptcy law principle” provides that it is not lawful for parties to use contractual provisions to circumvent bankruptcy law. In England this principle has split into two distinct subrules – the pari passu rule which invalidates contractual provisions that alter...

In November 2015, the Supreme Court of Canada released three decisions that considered the interplay between federal bankruptcy and insolvency law and provincial legislation. In each case, the matter was resolved through a consideration of the paramountcy principle of constitutional law. Two of...

Although subordination agreements are widely used, they are less comprehensively understood. In order to devise a workable framework for analyzing the legal issues associated with them, a fundamental distinction must be drawn between debt subordination and security interest subordination. In...

Despite the modernization of secured transactions law in every common law province in Canada, the insolvency statutes continue to define a secured creditor using pre-PPSA common law concepts. In order to fall within this definition, the creditor must hold a mortgage, pledge, charge, or lien...

On January 31, 2019, the Supreme Court of Canada rendered its decision in Orphan Well Association v Grant Thornton Ltd (commonly referred to as “Redwater”). In a 5-2 split, the court allowed the appeal and held that Alberta's oil and gas licensing regime does not conflict with the federal...

The use of a restructuring regime (the CCAA) to carry out going concern sales of insolvent firms is growing in Canada. Two critical questions must be addressed when considering this phenomena. The first is whether this provides support for the view that traditional restructurings are being...

The current “piecemeal” approach to the reform of Canadian insolvency law came about because of the inability, over three decades ago, to get a comprehensive insolvency bill through Parliament. After several attempts to do so, a less ambitious approach was adopted that would focus on a...