Companies' Creditors Arrangement Act Explained

Short Title:Companies' Creditors Arrangement Act
Long Title:An Act to facilitate compromises and arrangements between companies and their creditors
Citation:SC 1932‑33, c. 36 (now RSC 1985, c. C-36) http://laws-lois.justice.gc.ca/eng/acts/C-36/FullText.html
Enacted By:Parliament of Canada
Territorial Extent:Canada
Amended By:SC 1952‑53, c. 3; SC 1990, c. 17; SC 1997, c. 12; SC 1998, c. 30; SC 2000, c. 30; SC 2001, c. 34; SC 2005, c. 47; SC 2007, c. 29; SC 2007, c. 36
Related Legislation:Related Provisions (English)
Dispositions connexes (French)

The Companies' Creditors Arrangement Act[1] (CCAA; French: Loi sur les arrangements avec les créanciers des compagnies) is a statute of the Parliament of Canada that allows insolvent corporations owing their creditors in excess of $5 million to restructure their businesses and financial affairs.

The CCAA within the Canadian insolvency regime

In 1990, the British Columbia Court of Appeal discussed the background behind the introduction of the CCAA in one of its rulings:

The Supreme Court of Canada did not have a chance to explain the nature of the CCAA until the groundbreaking case of Century Services Inc. v. Canada (Attorney General) in 2010. In that case, the Court gave a detailed explanation of the nature of insolvency law in Canada.

The Bankruptcy and Insolvency Act (BIA) provides a more rules-based approach for resolving a corporate debtor's insolvency, which must be observed strictly. The CCAA, on the other hand, provides a more discretionary approach that is remedial in nature, which therefore must be broadly construed.

Although the CCAA was originally enacted in 1933,[2] extensive use of it only began in the economic downturn of the early 1980s. Recent legislative amendments of the BIA and CCAA have served to harmonize key aspects, such as the use of single proceedings, a common priority of claims structure, and encouraging reorganization over liquidation.

Discretionary power of the court in a CCAA reorganization

This is noted together with s. 11 of the CCAA, which states that a court may, "subject to the restrictions set out in this Act, . . . make any order that it considers appropriate in the circumstances".[3]

The decision notes the interrelated nature of proceedings under the CCAA and BIA:

Application of the Act

See also: Commercial insolvency in Canada.

Eligibility

The scope of the CCAA is quite broad. It applies to any debtor company (or group of affiliated companies) that owes more than $5 million,[4] other than:

and:

Debtor protection

No person may terminate or amend — or claim an accelerated payment or forfeiture of the term under — any agreement, including a security agreement, with any debtor company subject to the CCAA by reason only that proceedings commenced under the CCAA or that the company is insolvent.[7]

Agreements can be assigned[8] or disclaimed[9] by the debtor company as a result of the proceeding, by following prescribed procedures. These provisions extend beyond being used only within restructuring plans,[10] and the courts have held that there is "no reason…why the same analysis cannot apply during a sale process that requires the business to be carried as a going concern",[11] In that regard:[12]

Approval of the compromise or arrangement

Negotiated compromises and arrangements may deal with any matter, including claims against directors and amendments to the articles of incorporation or letters patent incorporating the company. When they have been approved by each participating class of creditors (by a two-thirds vote by value of the claims involved) the court may then approve it, and it will be binding on all persons, including trustees in bankruptcy.[13]

They cannot be approved by the court if provision is not made for settling "super-priority" claims (as they are known under the BIA) relating to:

In addition, no amounts relating to "equity claims"[17] may be authorized by the court under a compromise or arrangement until all other claims are first paid in full.[18] "Equity claims" have been held to include any claims shareholders may have against third parties in certain circumstances.[19] [20] [21]

Powers of the court

Any interested person may apply to the court for an order under the Act. This is normally the debtor company, but a creditor can also do so.[22] The court having jurisdiction is the superior court for the province in which the company's head office or chief place of business in Canada, or, in the absence of that, where any of its assets are situated.[23]

When the application is made, the court is required to appoint a monitor with respect to the business and financial affairs of the company, who must be a trustee in bankruptcy under the Bankruptcy and Insolvency Act.[24] The monitor is required to investigate and report back to the court on the company, advise the court with respect to any actions that need to be taken, and to carry out any other functions in relation to the company that the court may direct.[25]

Where a compromise or arrangement has already been negotiated with the secured[26] or unsecured[27] creditors essentially creating a pre-packaged insolvency the court may summarily order that it proceed to be voted on by each class of creditors concerned, and, where necessary, by the shareholders as well. Whether a creditor is secured or unsecured is governed by the BIA.[28]

However, the court is not bound to accept an application under the Act, and it can terminate previously granted orders (and even declare them to have been void ab initio) where an applicant has not made full and fair disclosure of all material facts.[29] Where a petition for CCAA relief appears to be more like a defensive tactic than a bona fide attempt to restructure, it may prefer to order receivership instead.[30]

Stay of proceedings

Where no such compromise or arrangement has been negotiated, the court, on application, may issue an order, lasting for 30 days,

any proceedings against the debtor company, while negotiations are held to secure a compromise or arrangement with creditors and shareholders. The court may extend the protection for any period it sees fit.[31] A stay may be lifted upon application to the court, but only in very restricted circumstances:

Provision is made for such stays not affecting investigations undertaken by any regulatory body (other than with respect to any payment that may be ordered), but the court can order the cancellation of such exemption where:

However, as noted in Newfoundland and Labrador v. AbitibiBowater Inc., not all payments required under regulatory orders constitute claims under the CCAA and are thus subject to stay. Subsequent jurisprudence suggests that determining the status of such orders will be case-specific.[35]

Scope

In addition, the court has broad discretion in administering any other issues that may arise.[36] As the Act says,

This has allowed for very creative applications for resolving difficult scenarios, including:

Stability during proceedings

In order to assure that the company's operations will continue during the proceedings, the court has the power to declare that the assets of the company are subject to a security or charge with respect to certain matters, and may further order that such charges rank ahead of those of secured creditors. These include:

This "super priority" status is construed broadly, and has been held to even defeat statutory deemed trusts (such as those concerning pension plan deficiencies and vacation pay that exist in Ontario),[52] [53] as well as in rem claims such as maritime liens that are found in maritime law.[54]

Other powers

The court may also order:

Comparison of CCAA with other bankruptcy protection proceedings

The CCAA has been described as being similar in nature to Chapter 11 proceedings in the United States and to administration proceedings and company voluntary arrangements ("CVAs") in the United Kingdom. Differences between the various proceedings include the following highlights:

ActionCCAA (Canada)Chapter 11 (US)[58] [59] Administration (UK)[60] CVA (UK)[61]
Applicable toInsolvent companies (or affiliated groups) with debts greater than $5 millionAny debtorAny company that is or is likely to become unable to pay its debtsAny company, whether insolvent or not
Initiated byInsolvent company (or creditor), upon application to the courtInsolvent person (whether natural or a business entity), upon application to the court OR creditors of a business entity, upon showing of cause to the courtCompany, its directors, or a holder of a floating charge (either unilaterally or on application to the court), or any other creditor (on application to the court)The directors of a company
Scope of planWithin the court's discretionAs prescribed by lawAs proposed by the administrator and approved at a meeting of the company's creditorsAs proposed by the directors and approved at meetings of the company and of its creditors, and then approved by the court
Stay of proceedingsUpon order of the courtAutomatic upon filingMay be lifted in specific cases with consent of administrator or permission of the courtIf requested by the directors to the court
Debtor-in-possession financingAllowedAllowedNot availableNot available

Notable CCAA proceedings

Relevant cases

Notes and References

  1. Companies' Creditors Arrangement Act. R.S.C.. 1985. C-36.
  2. Companies’ Creditors Arrangement Act, 1933, S.C. 1932‑33, c. 36
  3. Web site: CCAA, S. 11 . 27 April 2023.
  4. Web site: CCAA, S. 3 . 27 April 2023.
  5. Web site: CCAA, S. 2, definition of "company" . 27 April 2023.
  6. Web site: CCAA, S. 2, definition of "debtor company" . 27 April 2023.
  7. Web site: CCAA, s. 34(1) . 2011-09-28 . https://web.archive.org/web/20120916205449/http://laws-lois.justice.gc.ca/eng/acts/C-36/page-20.html . 2012-09-16 . dead .
  8. Web site: CCAA, S. 11.3 . 2011-09-28 . 2012-09-16 . https://web.archive.org/web/20120916205617/http://laws-lois.justice.gc.ca/eng/acts/C-36/page-9.html . dead .
  9. Web site: CCAA, S. 32 . 2011-09-28 . https://web.archive.org/web/20111012230047/http://laws-lois.justice.gc.ca/eng/acts/C-36/page-19.html . 2011-10-12 . dead .
  10. Re Timminco Limited. 2012. onsc. 4471. par. 51. 2012-08-03.
  11. Sproule v. Nortel Networks Corporation. 2009. onca. 833. par. 46. 2009-11-26.
  12. Web site: Aubrey E. . Kauffman. R. Graham . Phoenix. Ontario Court reinforces use of CCAA disclaimer provisions in the context of a sale process. Fasken Martineau. 2012-08-15. 2012-12-11. https://web.archive.org/web/20131213125100/http://www.fasken.com/en/ontario-court-reinforces-use-of-ccaa-disclaimer-provisions-the-context-sale-process/. 2013-12-13. dead.
  13. Web site: CCAA, S. 6 . 27 April 2023.
  14. CCAA, S. 6(5)
  15. CCAA, S. 6(6)
  16. CCAA, S. 6(3)
  17. defined under CCAA, S. 22.1
  18. CCAA, S. 6(8)
  19. Web site: Sino-Forest Subordination of equity interests and collateral damage. Borden Ladner Gervais. August 2012. 2012-08-30.
  20. Web site: Sino-Forest: Ontario Court of Appeal Agrees that Indemnity Claims of Auditors and Underwriters are Equity Claims. Davies Ward Phillips & Vineberg. 2012-11-29. 2012-11-29.
  21. Sino-Forest Corporation (Re). 2012. onca. 816. 2012-11-23., affirming Sino-Forest Corporation (Re). 2012. onsc. 4377. 2012-07-27.
  22. Web site: Stephanie A.F. . Grace . Creditor Initiated CCAA Proceedings . Aird & Berlis . 2009-12-02 . 2011-09-12 . https://web.archive.org/web/20120401101200/http://www.airdberlis.com/Templates/Articles/ArticleEdit.aspx?ArticleID=596&page=14 . 2012-04-01 . dead .
  23. Web site: CCAA, S. 9 . 27 April 2023.
  24. Web site: CCAA, S. 11.7 . 27 April 2023.
  25. Web site: CCAA, S. 23 . 27 April 2023.
  26. Web site: CCAA, S. 5 . 27 April 2023.
  27. Web site: CCAA, S. 4 . 27 April 2023.
  28. Web site: Jackie . Moher . SCC Holds No Priority for GST Claims in CCAA Proceedings . . 2011-02-02 . 2011-09-28 . https://web.archive.org/web/20120401131042/http://www.blakes.com/english/view_bulletin.asp?ID=4539 . 2012-04-01 . dead .
  29. Web site: Pamela . Huff. Matthew . Kanter. CanaSea Group: Full and Fair Disclosure Required in ex parte CCAA Applications. 22 January 2015. Blake, Cassels & Graydon., discussing Re CanaSea PetroGas Group Holdings Limited. 2014. onsc. 824. 2014-11-20. auto.
  30. Web site: Steven . Golick. Andrea . Lockhart. To Restructure or Liquidate? – That is the Question: Dueling CCAA and Receivership Applications. 27 February 2012. Bankruptcy Blog., discussing Callidus Capital Corp v Carcap Inc. 2012. onsc. 163. 2012-01-05. auto.
  31. Web site: CCAA, S. 11.02 . 27 April 2023.
  32. Web site: Lifting the stay – is the "doomed to fail" argument doomed to fail?. Adam . Maerov. Jennifer . Cockbill. McMillan LLP. September 2012. 2012-09-21., discussing Re Azure Dynamics Corp.. 2012. bcsc. 781. 2012-04-13. auto.
  33. Web site: Lift Stay Motion More Likely to Succeed in a Liquidating CCAA. Jeffrey . Levine. Stephen . Brown-Okruhlik. McMillan LLP. November 2013. 2013-11-29., discussing Re Puratone et al. 2013. mbqb. 171. 2013-07-08. auto.
  34. Web site: CCAA, S. 11.1 .
  35. , discussing Re Nortel Networks Corporation. 2013. onca. 599. 2013-10-03. and Re Northstar Aerospace Inc.. 2013. onca. 600. 2013-10-03.
  36. Web site: John . Sandrelli . Jurisdiction of the court in CCAA proceedings: Inherent jurisdiction vs statutory discretion . . 2005-09-16 . 2011-09-12 . dead . https://web.archive.org/web/20120329040843/http://www.fmc-law.com/upload/en/publications/20052006/2634262_Jursidiction_of_the_Court_in_CCA.pdf . 2012-03-29 .
  37. Metcalfe & Mansfield Alternative Investments II Corp., (Re). 2008. onca. 587. 92 OR (3d) 513; 296 DLR (4th) 135. 2008-08-18.
  38. Web site: Philippe H. . Bélanger . Geoff R. . Hall . Kevin P. . McElcheran . Mason . Poplaw . Creativity in the Courts: Use of the CCAA to Address Asset-Backed Commercial Paper Crisis . . 2008-11-04 . 2011-09-12 . https://web.archive.org/web/20110703092603/http://mccarthy.ca/article_detail.aspx?id=4176 . 2011-07-03 . dead .
  39. Web site: Michael . Schafler. Court Approves Restructuring Plan for Failed Asset-Backed Commercial Paper. Fraser Milner Casgrain. September 2008. 2012-09-11.
  40. Web site: Geoffrey . Thompson . Limited Partnerships and the CCAA . . July 2009 . 2011-09-12 .
  41. Web site: Michael . Fitch . Kibben . Jackson . Face the Music: The A&B Sound CCAA Proceeding - A Stalking Horse of a Different Colour . . 2011-09-12 . https://web.archive.org/web/20120331014800/http://www.fasken.com/files/Publication/9861dcb5-1cad-473f-82ce-efe1024322da/Presentation/PublicationAttachment/8031485e-659d-45a0-9934-f0cd643d5f37/Face%20the%20Music.pdf . 2012-03-31 . dead .
  42. Web site: Sean F.. Collins . James D. . Gage . Warren . Milman . Roger . Taplin . Mergers & Acquisitions in a More Uncertain World: Using the Companies' Creditors Arrangement Act . . 2012-07-25 . 2012-08-13.
  43. Web site: Peter B. . Farkas . John . Sandrelli . Jordan . Schultz . The Role of Liquidating CCAAs . . 2011-09-12 . dead . https://web.archive.org/web/20120329040851/http://www.fmc-law.com/upload/en/publications/2010/0410_The_Role_Of_Liqudating_CCAAs.pdf . 2012-03-29 .
  44. Web site: Michael . MacNaughton . Geoffrey . Thompson . Restructuring without a plan . . 2011-09-12 .
  45. Web site: Jassmine . Girgis . Restructuring under the CCAA: Should A Debtor Always Be Allowed to Proceed? . ABlawg.ca . 2010-01-28.
  46. Web site: Roger . Jaipargas . Court Declines to Approve Sale of Assets as Part of Proposal Proceedings . . July 2010 . 2011-09-12 .
  47. Web site: CCAA, S. 11.2 . 27 April 2023.
  48. Web site: Carole . Hunter . Jonathan . Levin . Edmund F.B. . Lamek . DIP financing strategies for distressed companies . . 2011-09-12 . https://web.archive.org/web/20120331015005/http://www.fasken.com/files/Publication/94873f15-c81c-42f7-92f4-0484427ff57a/Presentation/PublicationAttachment/3c4764d5-a732-4c63-a96a-38f52d302c7e/DIP_Financing_Strategies_for_Distressed_Companies.pdf . 2012-03-31 . dead .
  49. Web site: CCAA, s. 11.4 . 27 April 2023.
  50. Web site: CCAA, s. 11.51 . 27 April 2023.
  51. Web site: CCAA, s. 11.52 . 27 April 2023.
  52. Sun Indalex Finance, LLC v. United Steelworkers. Sun Indalex Finance, LLC v. United Steelworkers. 2013. scc. 6. 1 February 2013.
  53. Sam . Babe. After Indalex: Pension Claims Under the New CCAA. Collateral Matters. May 2013. 18. Aird & Berlis LLP. 5 May 2013. https://web.archive.org/web/20131212044530/http://www.airdberlis.com/Templates/Newsletters/newsletterFiles/256/A%26B_Banking%20Newsletter.pdf. 12 December 2013. dead.
  54. Web site: The CCAA's "Administration Charge": a super priority that can trump a ship mortgage. Borden Ladner Gervais. 2013-09-20., discussing Re Worldspan Marine Inc.. 2013. bcsc. 1593. 2013-09-03.
  55. Web site: CCAA, s. 11.5 . 27 April 2023.
  56. Web site: CCAA, s. 36.1 . 27 April 2023.
  57. Web site: CCAA, Part IV . 27 April 2023.
  58. Web site: Chapter 11, US Bankruptcy Code (from Cornell LII) .
  59. Web site: Sheryl E. . Siegel . distinctions with a difference: comparison of restructurings under the CCAA with chapter 11 law and practice . . September 2011 . 2011-10-13.
  60. Web site: Insolvency Act 1986 (UK), Sch B1 .
  61. Web site: Insolvency Act 1986 (UK), Part I .