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Caisse populaire Desjardins de l'Est de Drummond v. Canada, 2009 SCC 29 (CanLII)
[9] Section 227(4.1) ITA and s. 86(2.1) EIA create a deemed trust in favour of the Crown over property of the employer that has deducted income tax and employment insurance premiums at source. The deemed trust applies to property of the employer and property held by any secured creditor of the employer that, but for its security interest, would be property of the employer. The property is impressed with the deemed trust at the time the unremitted amounts were deducted at source by the employer.
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The definition of “security interest” in s. 224(1.3) ITA does not
require that the agreement between the creditor and debtor take any particular
form, nor is any particular form expressly excluded. So long as the creditor’s
interest in the debtor’s property secures payment or performance of an
obligation, there is a “security interest” within the meaning of this section.
While Parliament has provided a list of “included” examples, these examples do
not diminish the broad scope of the words “any interest in property” :
Rieger Printing Ink Company (Re), 2009 CanLII 7766 (ON S.C.)
there is no right to protection against self-incrimination in a section 163 examination conducted under the Bankruptcy and Insolvency Act[1]
CanLII - 2008 ABCA 1 (CanLII)
[15] Further, an appeal would hinder the CCAA proceedings because without an order giving the DIP Lender first priority over the applicant’s claim, the DIP Lender would not advance funds and without the current and future loans, Temple would be unable to restructure under the CCAA and would be forced to close its business.
[16] Given that three of the four factors cannot be met, even if the point on appeal is prima facie meritorious, the applicant cannot show that there are serious and arguable grounds of real and significant interest to the parties.
Temple City Housing Inc. (Companies' Creditors Arrangement Act), 2007 ABQB 786 (CanLII)
DIP financing trumps CRA deemed trust: a court in a CCAA proceeding is able to grant a super-priority over existing security interests for DIP financing. If it were otherwise, and if super-priority could not be granted without the consent of secured creditors, “the protection of the CCAA effectively would be denied a debtor company in many cases”:
Grimanis v. Harris & Partners Inc., 2009 CanLII 10673 (ON S.C.)
leave under s. 215 of the BIA
Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee with respect to any report made under, or any action taken pursuant to, this Act.
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Add Sticky Notenunc pro tunc
- Wikipedia: A judgment nunc pro tunc is an action by a trial court correcting a clerical (rather than judicial) error in a prior judgment. A nunc pro tunc may be signed even after the trial court loses its plenary power. - on 2009-03-25
Stone Sapphire Ltd. v. Transglobal Communications Group Inc., 2008 ABQB 575 (CanLII)
Bank's security interest trumps inventory suppliers' claim on money paid into court
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a security agreement with a licence to sell
creates “…a defeasible interest; but the event of defea
Re Seeley (Bankruptcy), 2008 NWTSC 77 (CanLII)
the Bank did nothing after the release was given by the Trustee. Had it started foreclosure proceedings, payment of the secured amount thereafter might be considered a redemption. But in my view, where, as here, the Bank did nothing with the release it was given and instead stood by while the Trustee continued with the agreement for sale in the context of the bankruptcy, what occurred is not a redemption.
Seeley (Trustee of) v. Canadian Imperial Bank of Commerce (2008), Superintendent’s Levy deducted from repayment of bank’s mortgage
Seeley (Trustee of) v. Canadian Imperial Bank of Commerce (2008), the Bankruptcy Court determined that the Superintendent’s Levy was payable on the amount paid to a secured creditor by a Trustee in bankruptcy.
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Add Sticky NoteSeeley (Trustee of) v. Canadian Imperial Bank of Commerce (2008),
Bankruptcy and Insolvency Act Section 136 - Priority of claims
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prescribed date
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Add Sticky Noteproperty of a bankrupt
- http://www.canlii.org/ca/sta/b-3/sec67.html;
67. (1) The property of a bankrupt divisible among his creditors shall not comprise
(a) property held by the bankrupt in trust for any other person,
... - on 2009-01-28
- http://www.canlii.org/ca/sta/b-3/sec67.html;
- 8 more annotations...
Credit Union Central of Ontario Limited v. Heritage Property Holdings Inc., 2008 ONCA 167 (CanLII)
the Receiver must bear responsibility for the increased realty taxes up to the date of closing, flowing from the reassessment. As indicated, those taxes are properly characterized as a future claim for taxes that existed at the time of closing
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the Receiver must bear responsibility for the increased realty taxes up to the
date of closing, flowing from the reassessment. As indicated, those taxes are
properly characterized as a future claim for taxes that existed at the time of
closing
Ultra Information Systems Canada Inc. v. Pushor Mitchell LLP, 2008 BCSC 974 (CanLII)
(1) being struck from the corporate register does not waive a company’s right to solicitor and client privilege, and (2) the sole director of the company at the time of its bankruptcy was the only person (in this case) with authority to review the documents and either assert or waive privilege.
Bre-X Minerals Ltd. ((2001) A.B.C.A. 225 (Alta. C.A.)) which held that (i) solicitor and client privilege fell into a category of interests which are not transferred to or conferred upon the Trustee by the Bankruptcy and Insolvency Act, (ii) solicitor and client privilege is not property under the BIA, and (iii) the right to waive privilege is not a right attaching to property divisible amongst creditors.
1064521 Ontario Ltd. (Re), 1998 CanLII 14641 (ON S.C.)
Municipality with a registered tax lien on personal property is a secured creditor.
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A secured creditor does not lose a secured position when the trustee takes
possession -
[29]
There being two secured creditors claiming
entitlement to the proceeds of Vaughan’s seizure, in the absence of any priority
provided in the BIA, the priority under provincial law governs. In the absence
of a priority the creditors secured by the property share pro rata in
proportion to their proper claims. - 1 more annotations...
Ledrew (Bankruptcy), Re, 2005 CanLII 23101 (ON S.C.)
Stephen LeDrew - http://en.wikipedia.org/wiki/Stephen_LeDrew - an example of extravagant living
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[17] In my view, the assumption of
monthly mortgage payments being close to 45% of the bankrupt’s net monthly
income is excessive and cannot be justified in the situation where the bankrupt
at the time was indebted to CRA for hundreds of thousands of dollars of income
tax for a number of prior years and was continuing to incur further income tax
liability. -
A bankruptcy fact is therefore established and an absolute discharge is not
available to LeDrew. - 1 more annotations...
D & K Horizontal Drilling (1998) Ltd. (Trustee of) v. Alliance Pipeline Ltd., 2002 SKQB 86 (CanLII)
Provincial Business Lien Act creates valid secured interest under the BIA for contractors.
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The central issue is whether funds paid into
Court by Alliance are, upon being paid into Court, the property of the Bankrupt
divisible among its creditors in accordance with the scheme of distribution
provided in the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”) free of any lien or charge in favour
of the lien claimants. -
if a lien is registered against the work or the site arising out of the work
performed by the Bankrupt or any of its subcontractors, the contract further
provides that Alliance may, at its option, post or deposit security to have the
lien removed or have the lien discharged and deduct the amount posted as
security and the cost of obtaining the discharge of the lien from any money
payable or which thereafter may become payable to the Bankrupt - 2 more annotations...
KPMG Inc. v. New Brunswick, 1999 CanLII 9439 (NB C.A.)
the BAI Act acknowledges that municipal tax creditors holding a preferential lien are secured creditors.
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under section 92(8) of
the Constitution
Act, 1867, the Provinces are granted exclusive
jurisdiction to make laws in relation to "Municipal Institutions in the
Province." -
[32] The BAI Act does not
exclude a municipality from the classification of a secured creditor, but it
expressly excludes a province from such classification - 1 more annotations...
Deputy Minister of Rev. (Que.) v. Rainville, 1979 CanLII 2 (S.C.C.)
Provincially legislated preference for unpaid taxes cannot make the Crown a secured creditor under the BIA. [Also known as Bourgault Estate v. MNR (1979), 30 N.R. 24 (SCC)]
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Its power to legislate concerning the provincial as well as federal Crown
privilege, in the case of bankruptcy, having been established by In re Silver
Brothers Ltd.[10], the
provision clearly indicates its intention to do so and the only question
remaining is as to the scope of the provision -
It is abundantly clear that this was intended to put on an equal footing all
claims by Her Majesty in right of Canada or of a province except in cases where
it was provided otherwise, namely, para. (c), the levy, and para. (h), workmen's
compensation or unemployment insurance assessments and withholdings for income
tax. - 3 more annotations...
Husky Oil Operations Ltd. v. Minister of National Revenue, 1995 CanLII 69 (S.C.C.)
Provincial Workers' Compensation legislation cannot create a "secured creditor under the BIA
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Rather, the provinces enacted laws of general application which sought to create
a general priority not necessarily targeted to bankruptcy, but which had the
effect of altering bankruptcy priorities. This Court nevertheless ruled
that such provincial laws were inapplicable in the event of bankruptcy - 3 more annotations...
143858 Canada inc. v. Ginsberg Gingras & associés inc., 1994 CanLII 5522 (QC C.A.)
In the result, I conclude that Hydro-Quebec was a secured creditor in the bankruptcy, that since its security was provided in provincial legislation the sole purpose of which was securing a debt due to Hydro-Quebec as an agent of the Crown, and since the security was validly registered prior to the date of the assignment in bankruptcy by the debtor, the claim of Hydro-Quebec remained valid as a secured claim in the bankruptcy.
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Under
the Hydro-Quebec Act (R.S.Q.
ch. H-5),
Hydro-Quebec is an agent of the Crown in right of Quebec (Sec. 13) and
its property is Crown property (Sec. 14). Under Sec. 31(4)
of the Act, Hydro-Quebec had a privilege, for the price of power supplied to a
debtor exploiting an industrial or commercial undertaking, upon the moveable and
immoveable property of its debtor:
In re The Bankruptcy of General Fireproofing Co. of Canada Ltd., 1937 CanLII 2 (S.C.C.)
Chattels case.
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The right is operative notwithstanding the fact that title to the goods and
chattels is claimed by virtue of an execution against the person taxed or that
such title is claimed by purchase, gift, transfer or assignment from the person
taxed, or that such title is claimed by virtue of any assignment or transfer
made for the purpose of defeating distress; and the right is operative also in
certain cases where the title is claimed by relatives
Farm Credit Corp. v. Holowach (Trustee of), 1988 CanLII 143 (AB C.A.)
s. 41 of the Law of Property Act of Alberta which precludes deficiency claims against individuals in foreclosure actions applies to the Crown (and by implication, FCC)
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10. The Corporation is, for all purposes of this Act, an agent of Her Majesty in
right of Canada. -
All parties argued this appeal on the basis that the mortgagee was entitled to
raise any immunity of the federal Crown. - 2 more annotations...
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