She is consistently listed as a leading practitioner in both the Insolvency Litigation and Financial Restructuring practice areas of The Canadian Legal Lexpert Directory. Canadian counsel for Charming Charlie Holdings Inc.
Although the Indalex decision was very fact specific, and those facts were unusual, the decision created considerable uncertainty in the DIP lending community.
The decision restores certainty for the DIP lending community; however, the ruling creates issues for traditional lenders and pension plan administrators most notably for the directors of companies that are both pension plan sponsors and administrators. The Court reversed the Ontario Court of Appeal and held that the deemed trust claim of pension plan members was subordinate to the court ordered DIP charge.
The Court found that a claim of priority based upon the provincial statutory deemed trust was in direct conflict with the CCAA Order which granted a super-priority charge to the DIP lenders. As a result, the Court held that the DIP charge must prevail over the provincial deemed trust through the doctrine of federal paramountcy.
This aspect of the decision represents a return to the status quo which existed prior to the controversial Ontario Court of Appeal decision and has restored a measure of certainty to DIP lenders. DIP lenders can now be assured that the doctrine of federal paramountcy will continue to protect DIP charges granted under CCAA orders from encroachment by provincial statutory deemed trusts.
A constructive trust is only awarded in cases where the asset which is to be the subject of the trust can be directly related to a wrong arising from a breach of fiduciary duty such that it would be unjust to allow the party in breach to retain it.
In this case the wrong, being lack of notice, would not have resulted in the pensioners securing any additional benefits.
Thus, in this case, the majority of the Court was not prepared to use equitable remedies to reorder priorities. Unresolved Issues for Plan Sponsors and Administrators including Corporate Directors The case is clear that when a pension plan sponsor is also the administrator of the pension plan, it must be sensitive to conflicts of interest and address those conflicts on timely basis.
The holding that Indalex, as plan administrator, breached its fiduciary duties will be of concern to plan administrators and sponsors including their corporate directors. In particular, the justices do not entirely agree on what constituted the breach of fiduciary duty.
The Court held that it was not appropriate to reorder priorities in the CCAA but that leaves open the question - what is the appropriate remedy for the breach? Are plan sponsors and administrators including their directors exposed to direct claims where conflicts arise in restructurings?
The practice which has evolved after the Ontario Court of Appeal decision in Indalex see, for example, such cases as Timminco Limited, Re  in order to minimize this exposure is to give notice of important steps in restructurings to pension plan members and regulators. Whether such notice will be sufficient to insulate plan administrators and sponsors including their corporate directors may well be explored by the courts in future cases.
While the Supreme Court of Canada decision in Indalex will be of comfort to the defendants in such cases, the risk of personal exposure including in an action for breach of fiduciary duty or in an oppression action reinforces the importance of dealing carefully with pension plan members not just during a CCAA proceeding but also during the lead-up to such a proceeding.
Wind-up Deficiencies are Valid Provincial Deemed Trusts The majority of the Court held that, in the case of a wound up pension plan, the wind up deficiency is subject to the deemed trust created by section 57 4 of the PBA. Prior to this ruling, the prevalent view among many practitioners was that only arrears of normal and special pension contributions were included in the statutory deemed trust under the PBA.
Accordingly, lenders in a non-insolvency environment must be wary of the broadened scope of the PBA deemed trust provisions and should take this potential priority into account moving forward.
To view all formatting for this article eg, tables, footnotesplease access the original here.The Supreme Court of Canada’s decision in the case of Re Indalex Ltd.  SCC 6 (the “Decision”) does not, as one national newspaper put it place “creditors before pensioners”.
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or. Create New Account. Not Now. Ladders4u Pty Ltd. Local Business. out of 5 stars. ABOUT LADDERS4U PTY LTD. I purchased a 7ft Indalex ladder from Ladders 4 U back in August.
We’ve been doing lots of jobs arou. in the supreme court of canada (on appeal from the court of appeal for ontario) in the matter of the companies' creditors arrangement act and in the matter of a plan of compromise or arrangement of indalex limited, indalex holdings (b.c.) ltd., canada inc.
and novar inc. b e t w e e n: sun indalex finance, llc fti consulting canada. Powered by Content Directions, Inc. (CDI) and the Digital Object Identifier (DOI) View additional CDI examples Want to Add This Link to Your Site?
MTR Database Search (ver. ) Heat Code Full Partial Eclipse Part No. Indalex Holding Corp., a wholly-owned subsidiary of Indalex Holdings Finance Inc., through its operating subsidiaries Indalex Inc.
and Indalex Ltd., with headquarters in Lincolnshire, Illinois, is the second.