This document provides an overview of preferences and transfers at undervalue under the Bankruptcy and Insolvency Act. It discusses what constitutes a preference or transfer at undervalue, the time limitations for recovering them, and related persons. It also covers section 38 creditor claims, appeals of disallowed claims, the standard of review, admitting fresh evidence, and section 163 examinations.
Defending Against Bankruptcy Avoidance Actions (Series: Complex Financial Lit...Financial Poise
In the event of a bankruptcy, the debtor or trustee may opt to take legal action in order to recover money or property that was transferred by the debtor prior to going bankrupt. These actions, whereby such transfers are effectively reversed, are referred to as “avoidance actions.” In this webinar, the expert panel discusses the applicable provisions of the Bankruptcy Code, common avoidance actions, and key considerations when planning for and defending against these actions.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/defending-against-bankruptcy-avoidance-actions-2020/
Defending Against Bankruptcy Avoidance Actions (Series: Complex Financial Lit...Financial Poise
In the event of a bankruptcy, the debtor or trustee may opt to take legal action in order to recover money or property that was transferred by the debtor prior to going bankrupt. These actions, whereby such transfers are effectively reversed, are referred to as “avoidance actions.” In this webinar, the expert panel discusses the applicable provisions of the Bankruptcy Code, common avoidance actions, and key considerations when planning for and defending against these actions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/defending-against-bankruptcy-avoidance-actions-2021/
Kegler Brown’s 2018 half-day legal seminar with guest speakers Scott Goen of Cardinal Health and Rebekah Smith of GBQ Consulting, alongside our Creditors’ Rights + Bankruptcy team.
Topics Included:
Hot Topics in 2018:
Christy Prince, Director, Kegler Brown
Stephanie Union, Of Counsel, Kegler Brown
Identifying Warning Signs in Financial Statements:
Rebekah Smith, CPA, CVA, MAFF, CFF
Director of Forensic & Dispute Advisory Services, GBQ
Best Practices: Designing Credit Applications:
Larry McClatchey, Director, Kegler Brown
Scott Goen, Manager, Credit Underwriting Retail, Cardinal Health
Strategies to Optimize Financial Outcomes in Cross Border Transactions:
Luis Alcalde, Of Counsel, Kegler Brown
Defending Against Bankruptcy Avoidance Actions (Series: Complex Financial Lit...Financial Poise
In the event of a bankruptcy, the debtor or trustee may opt to take legal action in order to recover money or property that was transferred by the debtor prior to going bankrupt. These actions, whereby such transfers are effectively reversed, are referred to as “avoidance actions.” In this webinar, the expert panel discusses the applicable provisions of the Bankruptcy Code, common avoidance actions, and key considerations when planning for and defending against these actions.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/defending-against-bankruptcy-avoidance-actions-2020/
Defending Against Bankruptcy Avoidance Actions (Series: Complex Financial Lit...Financial Poise
In the event of a bankruptcy, the debtor or trustee may opt to take legal action in order to recover money or property that was transferred by the debtor prior to going bankrupt. These actions, whereby such transfers are effectively reversed, are referred to as “avoidance actions.” In this webinar, the expert panel discusses the applicable provisions of the Bankruptcy Code, common avoidance actions, and key considerations when planning for and defending against these actions.
To view the accompanying webinar, go to: https://www.financialpoise.com/financial-poise-webinars/defending-against-bankruptcy-avoidance-actions-2021/
Kegler Brown’s 2018 half-day legal seminar with guest speakers Scott Goen of Cardinal Health and Rebekah Smith of GBQ Consulting, alongside our Creditors’ Rights + Bankruptcy team.
Topics Included:
Hot Topics in 2018:
Christy Prince, Director, Kegler Brown
Stephanie Union, Of Counsel, Kegler Brown
Identifying Warning Signs in Financial Statements:
Rebekah Smith, CPA, CVA, MAFF, CFF
Director of Forensic & Dispute Advisory Services, GBQ
Best Practices: Designing Credit Applications:
Larry McClatchey, Director, Kegler Brown
Scott Goen, Manager, Credit Underwriting Retail, Cardinal Health
Strategies to Optimize Financial Outcomes in Cross Border Transactions:
Luis Alcalde, Of Counsel, Kegler Brown
The seventh webinar presentation in the M&A Litigation Series examines successor liability and liability based on an alter-ego and other veil-piercing theories. Prevalent misconceptions on successor liability are discussed, as are third party claims against the post-merger entities.
On our agenda:
Myths and Misconceptions about Successor Liability
Veil-Piercing
Third Party Claims
Resources For Lake Lanier Real Estate Buyers!Arthur Prescott
Resources for Lake Lanier real estate buyers courtesy of Arthur Prescott of Prudential Georgia Realty and REBAC, the Real Estate Buyer's Agent Council. Arthur Prescott is an ABR, Accredited Buyer's Representative. This is a list of common questions and answers regarding the process of purchasing homes and real estate in the Lake Lanier area.
Larry McClatchey presented "Keeping the Gold: Successfully Resolving Preference Claims" on November 18-19 at the 2015 Great Lakes Region Credit Conference.
The presentation examined the definition of preference law, preferential transfer, courses of business defense and new value issues in the courts.
On 27 November Browne Jacobson hosted a training session for the Property Managers Association (PMA).
This is the second successive year we have hosted such an event, which was well attended and which received great feedback from delegates. The session covered the following topics:
Dilapidations – looking into some of the more complex aspects of a dilapidations claim.
Heads of terms – are we speaking the same language?
Lease renewals – concentrating on topical issues from our recent experience including interim rent, registration of proceedings and obtaining a break from the court.
Case law update – a review of the past year’s decisions.
Know how to recognize and find solutions to valuing, managing, buying, and selling troubled real estate assets? After attending this forum you will have a good grip on the life cycle of a troubled asset and how you can recognize where business opportunities exist.
Listen as a banker, a broker and a property manager currently active in this market discuss such topics as:
• Identifying lender, broker, manager, and owner objectives.
• The cradle to grave story.
• The pitfalls of working the Troubled Asset Market.
• Identifying opportunities for yourself and your
clients.
• Where do REO listings reside?
• Get a feel for foreclosures and short sales.
• What is the sales hot button?
5 Major Mistakes Business Owners Make That Expose Them to Legal RisksBadmus & Associates
Presentation about the major mistakes business owners can make with critical business and legal management functions such as:
Protecting their business entity status, shielding personal assets, and planning for growth and business transition
Negotiating purchase agreements, customer contracts, leases, and other business agreements
Observing immigration employment eligibility verification requirements
Handling employer responsibilities and shielding against employee competition and loss of trade secrets
Managing legal exposure and defending against lawsuits
The seventh webinar presentation in the M&A Litigation Series examines successor liability and liability based on an alter-ego and other veil-piercing theories. Prevalent misconceptions on successor liability are discussed, as are third party claims against the post-merger entities.
On our agenda:
Myths and Misconceptions about Successor Liability
Veil-Piercing
Third Party Claims
Resources For Lake Lanier Real Estate Buyers!Arthur Prescott
Resources for Lake Lanier real estate buyers courtesy of Arthur Prescott of Prudential Georgia Realty and REBAC, the Real Estate Buyer's Agent Council. Arthur Prescott is an ABR, Accredited Buyer's Representative. This is a list of common questions and answers regarding the process of purchasing homes and real estate in the Lake Lanier area.
Larry McClatchey presented "Keeping the Gold: Successfully Resolving Preference Claims" on November 18-19 at the 2015 Great Lakes Region Credit Conference.
The presentation examined the definition of preference law, preferential transfer, courses of business defense and new value issues in the courts.
On 27 November Browne Jacobson hosted a training session for the Property Managers Association (PMA).
This is the second successive year we have hosted such an event, which was well attended and which received great feedback from delegates. The session covered the following topics:
Dilapidations – looking into some of the more complex aspects of a dilapidations claim.
Heads of terms – are we speaking the same language?
Lease renewals – concentrating on topical issues from our recent experience including interim rent, registration of proceedings and obtaining a break from the court.
Case law update – a review of the past year’s decisions.
Know how to recognize and find solutions to valuing, managing, buying, and selling troubled real estate assets? After attending this forum you will have a good grip on the life cycle of a troubled asset and how you can recognize where business opportunities exist.
Listen as a banker, a broker and a property manager currently active in this market discuss such topics as:
• Identifying lender, broker, manager, and owner objectives.
• The cradle to grave story.
• The pitfalls of working the Troubled Asset Market.
• Identifying opportunities for yourself and your
clients.
• Where do REO listings reside?
• Get a feel for foreclosures and short sales.
• What is the sales hot button?
5 Major Mistakes Business Owners Make That Expose Them to Legal RisksBadmus & Associates
Presentation about the major mistakes business owners can make with critical business and legal management functions such as:
Protecting their business entity status, shielding personal assets, and planning for growth and business transition
Negotiating purchase agreements, customer contracts, leases, and other business agreements
Observing immigration employment eligibility verification requirements
Handling employer responsibilities and shielding against employee competition and loss of trade secrets
Managing legal exposure and defending against lawsuits
Igor Ellyn, QC, CS is a leading Toronto litigation lawyer, chartered arbitrator and mediator, who specializes in shareholders disputes and arbitration. In this highly informative presentation, Mr. Ellyn discusses litigation and arbitration of shareholder oppression cases.
VCs are exposed to unique challenges and risks when selling portfolio companies, and what is acceptable from a company's perspective may not be optimal for the investor base. An understanding of what goes wrong after companies are sold helps investors focus on effective planning strategies to protect returns and minimize exposure of their funds after closing.
No two chapter 11 cases are alike and no two chapter 11 cases involving a retail business are alike. There are, nonetheless, certain issues that tend to arise in most retail cases. Among them: the retention of a liquidation firm; lease assumption and rejection; the claim priority of rent during a month that straddles the Petition Date or a rejection date; and consumer deposit issues. This webinar addresses such issues.
Part of the webinar series: CHAPTER 11- INDUSTRY FOCUS 2022
See more at https://www.financialpoise.com/webinars/
In the event of a bankruptcy, the debtor or trustee may opt to take legal action in order to recover money or property that was transferred by the debtor prior to going bankrupt. These actions, whereby such transfers are effectively reversed, are referred to as “avoidance actions.” In this webinar, the expert panel discusses the applicable provisions of the Bankruptcy Code, common avoidance actions, and key considerations when planning for and defending against these actions.
Part of the webinar series: COMPLEX FINANCIAL LITIGATION 2022
See more at https://www.financialpoise.com/webinars/
Every company needs access to cash to fund its operations. Companies in bankruptcy are no different. But how should a company planning to enter bankruptcy approach this issue if all of its cash is tied up by a secured lender? What will a bankruptcy judge say when the company asks her permission to use cash on terms presented by its lender? How should lenders, debtors, and creditors approach negotiations over the terms of a cash collateral order or debtor-in-possession (DIP) financing agreement? This webinar focuses on answering these questions for advanced business reorganization practitioners and advisors from the perspective of all parties to a negotiation, as well as addressing best practices in drafting, negotiating, and presenting cash collateral and DIP financing orders in complex reorganization proceedings.
To listen to this webinar on-demand, go to: https://www.financialpoise.com/financial-poise-webinars/negotiating-and-drafting-cash-collateral-dip-financing-orders-2020/
Empty Spaces – How to Protect Yourself From a Defaulting TenantPolsinelli PC
Property owners, landlords, and developers all face similar concerns when a tenant defaults. In short, you want to make sure that you can keep collecting rent and maximize rental revenues. More broadly, you want to know your options for re-renting the premises, whether you can collect rent from the defaulting tenant while the premises is vacant, what options you have to remove and sell any property left behind, and how a tenant bankruptcy affects the whole process. Our panel will discuss your rights and remedies when dealing with these situations with an emphasis on making sure you recover all to which you are entitled.
Show me the money! Debtors in Chapter 11 cases cannot survive without money to continue operations, pay vendors and professionals, and work to restructure debt and/or sell assets. Where do those necessary funds come from? There are really only two sources – cash the debtor has or can generate (in either case, generally the collateral of the secured lender) or new money coming into the estate in the form of a post-petition debtor-in-possession (DIP) loan. What the debtor is permitted or not permitted to do can seal the fate of a case from the outset. This webinar sheds light on the intricacies involved in DIP financing.
Part of the webinar series: THE NUTS & BOLTS OF BANKRUPTCY LAW 2022
See more at https://www.financialpoise.com/webinars/
Foreign Workers, International Tax and Oil & Gas Market UpdateNow Dentons
In this presentation, FMC Partner Shawna Vogel and Associate Yasmeen Nizam team up with MNP Partner David Yager and Associate Kathy Bonazew to deliver information about foreign workers, international tax and oil & gas market updates. The following topics are discussed:
- We Need Foreign Workers Now
- New Developments in Permanent Residence Applications for Workers
- State of Canada’s Oil & Gas Industry and Future Employment Needs
- Taxation in Canada
In this presentation, FMC Partners Rob McDonald and Marlon Rajakaruna describe the importance of protecting your start-up company’s intellectual property (IP). The following topics are discussed:
- Types of Intellectual Property
- Patents
- Copyright
- Trade-marks
- Other Ways to Protect IP
- Protecting Your IP in Commercial Agreements
Privacy and Security in Mobile E-CommerceNow Dentons
In this presentation, FMC’s Timothy Banks describes the important issues to consider when thinking about privacy and security in mobile e-commerce. The presentation includes a discussion of the following topics:
- Outlines for M-Commerce
- Overview of Guidelines
- Special Issues (address book information, online behavioral tracking and analytics, geolocation data, children, and ongoing emerging issues)
- Transparency and Accountability in Design (consent, representations and disclaimers and applying Canada’s Anti-Spam Legislation)
- The three dimensions of M-Commerce
In this presentation, FMC’s Bernard Roth outlines the current trends in energy regulatory law. The presentation includes the following topics:
- Trends in Facilities Regulation
- Alberta Non-Utility Oil and Gas Facilities
- AER Structure
- Responsible Energy Development
- Federal Budget Legislative Changes
- Federal Fisheries Act
- Navigable Waters Protection Act
- Canadian Environmental Assessment Act
- Trends in Utilities Regulation
- Performance Based Regulation for Alberta Utilities
In this presentation, FMC’s Bill Gilliland and Dan Shea discuss deal points relating to survey of deals and deal terms, including:
• Survey
• Material Adverse Change
• Non-solicitation and Superior Proposals
• Regulatory Approval Language
• Break Fees
• Expense Reimbursement
• Go-Shop Provisions
In this presentation, FMC’s Doris Bonora and Mark Woltersdorf outline the important considerations when planning before death, including:
- Power of Attorney
- Personal Directive
- Farm Tax Planning
- Estate Freeze
- Wills
Risk Apportionment in the Purchase and Sale TransactionNow Dentons
In this presentation, FMC’s Leanne Krawchuk discusses risk apportionment in the purchase and sale transaction, including:
- Representations and Warranties
- Indemnity Clauses and Limitations
- Purchase Price Adjustments and Holdbacks/Escrow
- Maximize the Value Proposition
- Due Diligence
Letters of Intent - Tips and Traps for Commercial LawyersNow Dentons
In this presentation, FMC’s Heather Barnhouse discusses the purpose of a letter of intent (LOI) and the common issues with LOI. She then discusses a relevant case (IHAG – Holding A.G. c. Intrawest Corporation, 2009 QCCS 2699) and provides an overview of the lessons learned and future application.
Protect you Rights and Avoid Liability! Current Developments and Major Implic...Now Dentons
In this presentation, FMC's Margot Patterson discusses current developments and major implications for IP legal guidelines in advertising, including:
1. Changing Copyright Rules: User Generated Content
2. How Social Media is changing your marketing practices and how you protect your brand
3. Yours, Mine and Ours: Best practices for third-party content (partners & consumers)
In this presentation, FMC's Alan Hutchison discusses Preliminary Economic Assessments (PEAs) by going over the recent focus on PEAs, providing important considerations, and going through 4 different scenarios related to PEAs.
An Introduction to Legal Aspects of Customer Acquisitions for StartupsNow Dentons
In this presentation, FMC’s Gal Smolar discusses an introduction to the legal aspects of customer acquisitions for startups. The presentation focuses on customer acquisitions, acquisition contracts, trends, right to data, restrictive covenants, exclusivity, joint development and customer acquisition tips.
Gal Smolar is a partner in FMC’s Vancouver office. Gal is a Practitioner of Foreign Law and brings to Fraser Milner Casgrain his broad international experience in commercial and corporate law and in particular in the field of technology.
Update on Hydraulic Fracturing:Preparing for Gasland 2Now Dentons
In this presentation, FMC Law's Alex MacWilliam discusses hydraulic fracturing. The presentation covers the hydraulic fracturing process; the legislative and regulatory management of key issues related to hydraulic fracturing; liability issues in fracturing litigation; finally, lessons and trends related to hydraulic fracturing.
In this presentation, V. Peter Harder describes why Canada engages with China, while Rob McDonald and Margot Patterson outline the changes to copyright laws in Canada.
In this presentation, Rob McDonald and Stephen Parker discuss the following topics related to intellectual property:
- IP Due Diligence in Commercial Transactions
- Common IP Disputes that Arise in Business
- The New Copyright Modernization Act
In this presentation, Rob McDonald outlines the key amendments to the Copyright Act and explains how Canada's copyright laws will change with the new Copyright Modernization Act.
Implicitly or explicitly all competing businesses employ a strategy to select a mix
of marketing resources. Formulating such competitive strategies fundamentally
involves recognizing relationships between elements of the marketing mix (e.g.,
price and product quality), as well as assessing competitive and market conditions
(i.e., industry structure in the language of economics).
Attending a job Interview for B1 and B2 Englsih learnersErika906060
It is a sample of an interview for a business english class for pre-intermediate and intermediate english students with emphasis on the speking ability.
Discover the innovative and creative projects that highlight my journey throu...dylandmeas
Discover the innovative and creative projects that highlight my journey through Full Sail University. Below, you’ll find a collection of my work showcasing my skills and expertise in digital marketing, event planning, and media production.
Personal Brand Statement:
As an Army veteran dedicated to lifelong learning, I bring a disciplined, strategic mindset to my pursuits. I am constantly expanding my knowledge to innovate and lead effectively. My journey is driven by a commitment to excellence, and to make a meaningful impact in the world.
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Putting the SPARK into Virtual Training.pptxCynthia Clay
This 60-minute webinar, sponsored by Adobe, was delivered for the Training Mag Network. It explored the five elements of SPARK: Storytelling, Purpose, Action, Relationships, and Kudos. Knowing how to tell a well-structured story is key to building long-term memory. Stating a clear purpose that doesn't take away from the discovery learning process is critical. Ensuring that people move from theory to practical application is imperative. Creating strong social learning is the key to commitment and engagement. Validating and affirming participants' comments is the way to create a positive learning environment.
Kseniya Leshchenko: Shared development support service model as the way to ma...Lviv Startup Club
Kseniya Leshchenko: Shared development support service model as the way to make small projects with small budgets profitable for the company (UA)
Kyiv PMDay 2024 Summer
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LA HUG - Video Testimonials with Chynna Morgan - June 2024Lital Barkan
Have you ever heard that user-generated content or video testimonials can take your brand to the next level? We will explore how you can effectively use video testimonials to leverage and boost your sales, content strategy, and increase your CRM data.🤯
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Memorandum Of Association Constitution of Company.pptseri bangash
www.seribangash.com
A Memorandum of Association (MOA) is a legal document that outlines the fundamental principles and objectives upon which a company operates. It serves as the company's charter or constitution and defines the scope of its activities. Here's a detailed note on the MOA:
Contents of Memorandum of Association:
Name Clause: This clause states the name of the company, which should end with words like "Limited" or "Ltd." for a public limited company and "Private Limited" or "Pvt. Ltd." for a private limited company.
https://seribangash.com/article-of-association-is-legal-doc-of-company/
Registered Office Clause: It specifies the location where the company's registered office is situated. This office is where all official communications and notices are sent.
Objective Clause: This clause delineates the main objectives for which the company is formed. It's important to define these objectives clearly, as the company cannot undertake activities beyond those mentioned in this clause.
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Liability Clause: It outlines the extent of liability of the company's members. In the case of companies limited by shares, the liability of members is limited to the amount unpaid on their shares. For companies limited by guarantee, members' liability is limited to the amount they undertake to contribute if the company is wound up.
https://seribangash.com/promotors-is-person-conceived-formation-company/
Capital Clause: This clause specifies the authorized capital of the company, i.e., the maximum amount of share capital the company is authorized to issue. It also mentions the division of this capital into shares and their respective nominal value.
Association Clause: It simply states that the subscribers wish to form a company and agree to become members of it, in accordance with the terms of the MOA.
Importance of Memorandum of Association:
Legal Requirement: The MOA is a legal requirement for the formation of a company. It must be filed with the Registrar of Companies during the incorporation process.
Constitutional Document: It serves as the company's constitutional document, defining its scope, powers, and limitations.
Protection of Members: It protects the interests of the company's members by clearly defining the objectives and limiting their liability.
External Communication: It provides clarity to external parties, such as investors, creditors, and regulatory authorities, regarding the company's objectives and powers.
https://seribangash.com/difference-public-and-private-company-law/
Binding Authority: The company and its members are bound by the provisions of the MOA. Any action taken beyond its scope may be considered ultra vires (beyond the powers) of the company and therefore void.
Amendment of MOA:
While the MOA lays down the company's fundamental principles, it is not entirely immutable. It can be amended, but only under specific circumstances and in compliance with legal procedures. Amendments typically require shareholder
Tata Group Dials Taiwan for Its Chipmaking Ambition in Gujarat’s DholeraAvirahi City Dholera
The Tata Group, a titan of Indian industry, is making waves with its advanced talks with Taiwanese chipmakers Powerchip Semiconductor Manufacturing Corporation (PSMC) and UMC Group. The goal? Establishing a cutting-edge semiconductor fabrication unit (fab) in Dholera, Gujarat. This isn’t just any project; it’s a potential game changer for India’s chipmaking aspirations and a boon for investors seeking promising residential projects in dholera sir.
Visit : https://www.avirahi.com/blog/tata-group-dials-taiwan-for-its-chipmaking-ambition-in-gujarats-dholera/
VAT Registration Outlined In UAE: Benefits and Requirementsuae taxgpt
Vat Registration is a legal obligation for businesses meeting the threshold requirement, helping companies avoid fines and ramifications. Contact now!
https://viralsocialtrends.com/vat-registration-outlined-in-uae/
What are the main advantages of using HR recruiter services.pdfHumanResourceDimensi1
HR recruiter services offer top talents to companies according to their specific needs. They handle all recruitment tasks from job posting to onboarding and help companies concentrate on their business growth. With their expertise and years of experience, they streamline the hiring process and save time and resources for the company.
2. Preferences and Transfers for Undervalue
• Amendments to the Bankruptcy and Insolvency Act (“BIA”)
– Recently amended to repeal settlement and reviewable transaction provisions
– Replaced with provisions regarding preferences and transfers at undervalue
– Provisions work to protect the assets of the bankrupt from being unfairly
dissipated by allowing the trustee to recover those assets from transferees
2
3. Section 95 ‐ Preferences
• What constitutes a preference?
– An improper preference under section 95 is any transaction
undertaken by the bankrupt with the intent to prefer one creditor over
others
• The transaction must be with a creditor to constitute a preference
3
4. • Onus of proof
– The Trustee has the onus of proof to show that the bankrupt intended
to give a preference to one creditor
– Exception: A bankrupt will be presumed to have had the requisite
intent where the transaction has the effect of giving a creditor a
preference
4
5. Section 95 ‐ Time Limitations
• Preferences to Arms’ length creditors
– Preference must be completed:
• Not more than three months prior to the initial bankruptcy event and
• Ending on the date of bankruptcy
• Preferences to non‐Arms’ length creditors
– Preference must be completed:
• Not more than twelve months prior to the initial bankruptcy event and
• Ending on the date of bankruptcy
5
7. Section 96 – Transfers Under Value
• What constitutes a transfer at undervalue?
– Defined in section 2 of the BIA
• “means a disposition of property or provision of services for which no
consideration is received by the debtor or for which the consideration
received by the debtor is conspicuously less than the fair market value of
the consideration given by the debtor”
• Transferee not required to pay exactly fair market value, but must be
sufficiently close
– Transfers to both creditors and non‐creditors are caught
• Intention is to capture transactions that significantly
undervalue assets or provide no consideration
7
8. • Evidence
– A trustee alleging transfer under value must provide evidence of the
value of the transferred asset or service and the consideration received
by the bankrupt
– If transferee provides no evidence to the contrary, the court will accept
the trustee’s evidence as correct
8
9. Section 95 ‐ Time Limitations
• Transfers at undervalue to Arms’ length persons
– Trustee must prove:
• Transaction occurred not more than one year prior to the initial bankruptcy
event;
• Transaction occurred after the date of bankruptcy;
• Debtor was insolvent or became insolvent because of transaction; and
• Debtor intended to hinder, delay or defraud creditors
9
10. • Transfers at undervalue to non‐arms’ length persons
– Trustee must prove:
• Transaction occurred not more than one year prior to the initial
bankruptcy event and
• Before the date of bankruptcy
OR
• Not more than five years prior to the initial bankruptcy event;
• Ending one year prior to initial bankruptcy event;
• Debtor was insolvent or became insolvent because of transaction; and
• Debtor intended to hinder, delay or defraud creditors
10
11. Provincial Statutes
• Trustees may attack transactions that do not meet criteria
under sections 95 and 96 under provincial legislation.
– Eg. Fraudulent Conveyance Act (“FCA”) or Fraudulent Preference Act
• FCA
– Transfer for insufficient or no consideration where debtor intends to
delay, hinder or defraud creditors and others are vulnerable to attack
11
12. The FCA and Botham
• Botham Holdings Ltd. (Trustee of) v. Braydon Investments
Ltd., 2008 BCSC 1547, aff’d 2009 BCCA 521
– Botham transferred assets to Braydon prior to entering into a risky
partnership
– Partnership failed and Botham and partnership went bankrupt
– Directing mind of both companies admitted intention was to
protect assets in event partnership failed
– Court found intention was honest, but held fraudulent intent not
required to void transaction
• Only requirement is to keep assets out of hands of creditors, current
or future
– Decision enables trustee to attack a greater range of transfers
12
13. Section 38 Claims
• Section 38 of the BIA
– Allows creditor to apply to court for approval to take place of trustee in
a proceeding
– Permitted only where trustee refuses or fails to act
13
14. • Benefits
– Creditor is able to keep all proceeds up to the total of their claim
plus costs of the proceeding
• Requirements
– Affidavit that debtor is insolvent, trustee has been requested to
act, and trustee has refused or failed to act
– Trustee must be served
– May have to show prima facie case against potential defendant
• Courts are divided on issue
14
15. • Requirements continued
– Failure to meet requirements that is non‐prejudicial will not be
fatal
– Creditor must show proceeding, if successful, will result in
monetary gain for estate
• Notice to other creditors
– Not required prior to application
– Must give sufficient notice, once approved, to permit other
creditors to decide whether to join the action
– Joining creditors will share in costs and proceeds pro rata
15
16. Appeals from Disallowance of Claim
• Is Creditor entitled to hearing de novo or limited to true
appeal?
– Hearing de novo permits new evidence to be adduced and is
effectively a rehearing of the disallowed claim
– True appeal is an appeal on the record
16
17. Re Galaxy Sports Inc, 2004 BCCA 284
• Previous case law permitted hearing de novo
• Court in Galaxy rejected this, stating:
• the law in British Columbia is clear that unless the statute that provides an
appeal also states that it is to take the form of a trial de novo, […] the appeal
will be an ordinary appeal.
• Hearing de novo as of right is an inefficient use of resources
• Trustee has requisite knowledge and experience to make
decision
• Fresh evidence only permitted where disallowance would be
unjust
17
19. Fresh Evidence
• Fresh evidence permitted in limited circumstances
• Creditor must show
– evidence was not discoverable by reasonable diligence before the
trustee's decision;
– that the evidence is credible;
– that it would be practically conclusive of an issue before the court; and
– that if believed, the evidence could have affected the result of the
trustee's decision
19
20. Section 163 Examinations
• Subsection 163(1) gives the trustee broad powers to examine
the following persons:
– Bankrupt;
– Any person who would be reasonably thought to know the affairs of
the bankrupt; or
– Any person who is or has been an agent, clerk, director or employee
with respect to the bankrupt or the bankrupt's dealings.
• Requirements
– Approval via either: ordinary resolution of the creditors or resolution
passed by the majority of inspectors
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21. • Benefits
– Allows trustee to locate and value assets that bankrupt may have
hidden
– Court order not required for examination
– Trustee may ask any questions relevant to the bankrupt or the
bankrupt’s property or business
– Person being examined cannot refuse to answer any relevant question,
even if such an answer would potentially incriminate them
– Not limited to examination of one person
– May examine a person more than once, but cannot harass
– Solicitor may be examined on non‐privileged matters
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22. • Document production
– Trustee can require any person being examined to bring documents
related to the examination
– Trustee can request any document that relates to the bankrupt or the
bankrupt’s property
• Confidential information must be provided, unless subject to
solicitor/client privilege
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23. • Subsection 163(2) gives a creditor broad powers to examine
the following persons:
– Bankrupt;
– Trustee;
– Inspector;
– Creditor; or
– Any other relevant person.
• Requirements
– Court order
– Creditor must prove examination is for the benefit of the bankrupt’s
estate as a whole
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24. • Scope
– Scope of examination limited to administration of bankrupt’s estate
and cannot be used as private remedy for a secured creditor
• Document production
– Creditor can require any person being examined to bring documents
related to the examination
– Creditor can request any document that relates to the administration
of the bankrupt’s estate
• Confidential information must be provided, unless subject to
solicitor/client privilege
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25. • Use of Information from Section 163 Examination
– Subsection 163(3) requires that any Section 163 examination that is
transcribed must be filed with the court
– Subsection 163(3) permits the transcript to be read in during any civil
proceedings to which the examined person is a party
• Cannot be used in criminal proceedings, although trustee may use such
transcripts to obtain leave to bring criminal proceedings under section 205
of the BIA
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26. Waiver of Solicitor Client Privilege
• Who may waive privilege on behalf of a corporate
bankrupt?
– Nothing in the BIA denies or gives a trustee the right to waive
privilege on behalf of the bankrupt company
– Re St. Anne‐Nackawic Pulp Co. (2005), 12 C.B.R. (5th) 65
(N.B.Q.B.)
• Broad powers given to trustee under BIA, but right to waive
privilege not one of them
• Corporate bankrupt survives bankruptcy and retains ability to
waive privilege itself
• Trustee acts on behalf of creditors and is often at odds with
bankrupt’s interest
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27. • Bre‐X Minerals Ltd. (Trustee of) v. Verchere (2001), 206 D.L.R.
(4th) 280 (A.B.Q.B)
– Trustee not permitted to waive privilege even where all directors had
resigned
– Company can waive privilege through election of new directors or
meeting of shareholders to address issue
– Distinguished cases permitting waiver by trustee as they dealt with
fraudulent behaviour, which is an exception to the privilege rule
• Ultra Information Systems Inc. v. Pushor Mitchell LLP (2008),
45 C.B.R. (5th) 108
– Only current directors may waive privilege
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29. • If estate insufficient to cover permitted legal fees, priority
structure set out in subsection 197(6):
– 1. Commissions on collections;
– 2. Costs incurred by the trustee after bankruptcy, but prior to the first
meeting, where such fees are authorized by either the court or the
creditors;
– 3. Costs on an assignment or incurred by the application creditor up
to the issue of a bankruptcy order;
– 4. Costs awarded against the estate or the trustee;
– 5. Costs for legal services otherwise rendered to the trustee or the
estate.
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30. • Bankrupt’s Counsel
– Legal fees for work done for bankrupt prior to bankruptcy generally
recoverable, even without approval by trustee where in connection
with the assignment into bankruptcy
– Services provided post‐bankruptcy are not recoverable from the
estate, only against bankrupt
• Legal fees here survive discharge of bankrupt
– No charge on bankrupt’s assets permitted for past or future legal fees
– Proposal by debtor under section 50 could include payment of past or
future legal fees
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31. • Creditor’s Counsel
– Subsection 45(1) of BIA generally permits legal fees incurred by
creditor in petitioning a debtor into bankruptcy to be payable out of
the bankrupt’s estate unless the court otherwise orders
• Legal fees incurred in Plan of Arrangement under the
Companies’ Creditors Arrangement Act (“CCAA”)
– Initial order should contain request for super‐priority administrative
charge to cover legal fees
– Court has the jurisdiction to grant such a request under section 11.52
of the CCAA
• Notice to secured creditors affected by request required
• Estimate of fees should include monitor’s fees and the fees of other
parties who could not participate without such a charge
– If plan fails, legal fees more likely to be paid with super‐priority
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32. Ethical Issues – Ex Parte Orders
• Ex Parte orders commonplace where debtor requesting a stay
of proceedings to file a proposal under the BIA or a plan
under the CCAA
• Ex parte orders brought without notice to other parties and
so have higher disclosure requirements
– Counsel required to make full and frank disclosure of all material
facts and circumstances that may be relevant to the court’s decision
• Material facts harmful to client’s case must be disclosed
• Serious consequences can flow from an ex parte order made
on deficient facts
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33. • Ex parte orders often requested on urgent basis
– Regardless of this, counsel must take time to include all relevant
materials available at time of application
– Insufficient time to prepare materials not a valid excuse for
incomplete disclosure
• Ex parte orders are exception to adversarial system
– Greater burden of disclosure, as opposing counsel not there to ensure
court hears all relevant information
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34. • Requesting ex parte orders
– Should only be requested when necessary
• Eg. Stay is urgently required to prevent seizure of assets
– Unnecessary ex parte applications may be vacated or costs may be
awarded against the applicant, if order survives challenge
– Ex parte orders requested without reasons for the lack of notice will
likely be refused by the court
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35. Ethical Issues – Solicitor/Client Privilege
• Protecting Privilege as Former Solicitor of Bankrupt
– Trustee does not have power to waive privilege and cannot be provided
with privileged documents unless bankrupt has waived privilege
• Trustee may have management of corporate bankrupt, but ability to waive
privilege does not transfer to trustee (Bre‐X)
– If former counsel examined under section 163, issues arise
• Must answer all questions that do not require privileged information
• Must provide all documents requested, even if confidential, that are not
privileged
• Requires great care to ensure that solicitor complies with section 163, but
maintains privilege at same time
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36. • Conflict of Interest
– Former solicitor of bankrupt not entitled to act for trustee
• Trustee’s interests and bankrupt’s interests frequently do not align, as
trustee acts in the interest of creditors not the bankrupt
• Solicitors may have privileged communications with bankrupt that it needs
to protect, but may also feel obligated to disclose to trustee, if they were
to act for both
– Former firm of bankrupt may only act for trustee where the
presumption of shared information between the solicitors that worked
for the bankrupt and the solicitors that would act for the trustee is
overcome
• Must provide evidence that information has not been previously shared
and proof that protections have been put into place to prevent sharing of
information
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