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Author: Jassmine Girgis Page 4 of 9

B.A. (Calgary); JD (With Distinction) (Western); LL.M. (Cambridge). Associate Professor. Member of the Alberta Bar. Please click here for more information.

Exemptions to the BIA “Fresh Start” Policy

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On January 24, 2022

In Bankruptcy and Insolvency

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.

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Interpreting the Generalized Duty of Good Faith in Insolvency Proceedings

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On December 16, 2021

In Insolvency

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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A Generalized Duty of Good Faith Applied to Disclaimer Under the CCAA

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On June 1, 2021

In Creditors’ Remedies

By: Jassmine Girgis

PDF Version: A Generalized Duty of Good Faith Applied to Disclaimer Under the CCAA

Case Commented On: Laurentian University v Sudbury University, 2021 ONSC 3392 (CanLII)

In this case, the court considered the new generalized duty of good faith in relation to setting aside a disclaimer under the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (CCAA). When Laurentian University (LU), sought to disclaim agreements with the University of Sudbury (Sudbury) as part of its restructuring, Sudbury brought this motion to set the disclaimer aside, arguing that LU was using the CCAA restructuring process for a collateral or illegitimate purpose, namely to destroy a competitor (at paras 22—24). Sudbury argued that LU’s attempt to disclaim these agreements was a violation of its duty to act in good faith as per s 18.6. Concurrent to this motion, Thornloe University (Thornloe) also brought a motion against LU, dealing with the same issue – to set aside a disclaimer – using similar good faith arguments (Laurentian University of Sudbury, 2021 ONSC 3272 (CanLII) [Laurentian University]). Each motion was dismissed.

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Applying the Rule in Foss v Harbottle to Limited Partnerships

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On May 10, 2021

In Corporate / Commercial, Corporate Partnerships

By: Jassmine Girgis

PDF Version: Applying the Rule in Foss v Harbottle to Limited Partnerships

Case Commented On: Asher Place Senior Residency Limited Partnership v Balcom, 2021 BCCA 162 (CanLII)

In Asher Place Senior Residency Limited Partnership v Balcom, 2021 BCCA 162 (CanLII), the issue was whether a common law derivative action may be brought on behalf and in the name of a limited partnership against the partnership’s general partner based on alleged wrongs committed by the general partner in its conduct of the business of the limited partnership (at para 1). The Court of Appeal found that procedurally and substantively, it is possible.

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Must Creditors be “Analogous to Minority Shareholders” to Obtain Standing for Oppression?

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On February 17, 2021

In Contracts, Creditors’ Remedies

By: Jassmine Girgis

 PDF Version: Must Creditors be “Analogous to Minority Shareholders” to Obtain Standing for Oppression?

Case Commented On: Pricewaterhouse Coopers Ltd v Perpetual Energy Inc, 2021 ABCA 16 (CanLII)

A creditor seeking an oppression remedy must qualify as a “proper person” to make an application. While deciding whether to grant standing, courts have at times maintained that a creditor must be in a position analogous to a minority shareholder. In Pricewaterhouse Coopers Ltd v Perpetual Energy Inc, 2021 ABCA 16 (CanLII) (Perpetual Energy), the Alberta Court of Appeal objected to the shorthand of that analogy while appearing to confirm its substance. This post will address when and how creditors can get complainant status under the oppression remedy, and the effect of the comment in Perpetual Energy on that understanding.

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