B.A. (Calgary); JD (With Distinction) (Western); LL.M. (Cambridge). Associate Professor. Member of the Alberta Bar. Please click here for more information.
By: Jassmine Girgis
Case commented on: Wisser v CEM International Management Consultants Ltd, 2022 ABQB 414 (CanLII)
PDF Version: The Oppression Remedy Tests: Oppression v Unfair Prejudice & Unfair Disregard
This blog broadly addresses how creditors can utilize the oppression remedy. It includes a specific discussion on the three tests in the oppression remedy. It will not address the issue of severance.
By: Jassmine Girgis
Case Commented On: MNP Ltd v Canada Revenue Agency, 2022 ABQB 320 (CanLII)
PDF Version: How does Bankruptcy Impact the Priority of a Writ of Enforcement’s ‘Binding Interest’
This case is about the priority of a writ of enforcement’s “binding interest” upon bankruptcy. As the court found here, where a writ is not fully executed as of the date of bankruptcy, the writ’s binding interest ceases to have effect, rendering the writ holder an unsecured creditor and putting it last in priority, after secured and preferred creditors.
By: Jassmine Girgis
Paper Commented On: “Fairness in The Oppression Remedy: How Does Harm Become Unfair?”, 19th Annual Review of Insolvency Law, 2021 CanLIIDocs 13557
PDF Version: Fairness and The Corporate Oppression Remedy: What is the Difference Between “Prejudice” and “Unfair Prejudice”?
[The National Judicial Institute (NJI) recently held its civil law seminar in Calgary, Alberta, where I participated in a panel on director and officer liability. The following blog captures some of my remarks during that panel, as well as excerpts from a recent paper that formed the basis of those remarks]
People have a strong intuitive sense of fairness – even children sense when an adult has treated them unfairly. Perhaps for this reason, in the context of the corporate oppression remedy, which has fairness as its foundation, spotting oppression in a set of facts can be relatively straightforward. The problem, however, is that while unfairness (and oppression) can be easy to see, why something is unfair or oppressive can be much more difficult to explain. Indeed, oppression remedy jurisprudence often fails on this point – prejudice or harm may be plainly evident on the facts (Kevin P McGuinness, Canadian Business Corporations Law, 3rd ed, vol 3 (Toronto: LexisNexis Canada Inc, 2017) at §21.135), but without guidance the fairness test can seem obscure, and courts sometimes struggle with it. They get the results right, and they give some reasons, but these reasons often do not provide a clear articulation as to what fairness means.
By: Jassmine Girgis
PDF Version: Exemptions to the BIA “Fresh Start” Policy
Case Commented On: Alberta Securities Commission v Hennig, 2021 ABCA 411 (CanLII)
In this decision, the Alberta Court of Appeal (CA) considered whether a debt fell within the exceptions contained in s 178(1) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (BIA), and therefore survived the discharge of the bankrupt.
The CA allowed the appeal. The majority reasons were written by Justice Ritu Khullar and concurred in by Justice Jack Watson. Justice Dawn Pentelechuk wrote reasons concurring in the result.
By: Jassmine Girgis
PDF Version: Interpreting the Generalized Duty of Good Faith in Insolvency Proceedings
Case Commented On: CWB Maxium Financial Inc v 2026998 Alberta Ltd, 2021 ABQB 137 (CanLII)
In CWB Maxium Financial Inc v 2026998 Alberta Ltd, 2021 ABQB 137 (CanLII), the court considered the duty of good faith in the Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 4.2 [BIA], and the Personal Property Security Act, RSA 2000, c P-7, s 66(1) [PPSA], in relation to the plaintiff lenders seeking a final order of receivership against the defendant debtors. This post will focus on the duty in the context of insolvency. It will also comment on and contrast the equitable duty of fairness under the corporate oppression remedy.
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