Lessons for lenders: Personal knowledge and addressing the evidentiary burden remains key
Introduction It is common for a special loans officer of a secured lender to swear an Affidavit on behalf of their financing institution in connection with enforcement proceedings. However, a recent Master’s decision, Meridian OneCap Credit Corp v Nikos Directional...
Guarantor’s payment of legal fees incurred by a lender to sue a borrower
The following is a summary of a judgment concerning the Bank’s right to be reimbursed for legal fees it incurred to sue and obtain a judgment against a surety (hereinafter called “the Guarantor”). Facts The facts of the case can...
Lenders beware: Control, opposability and priority of security on cash in Quebec
On December 2, 2020, the Quebec Court of Appeal (the “Court”), for reasons drafted by the Honourable Robert M. Mainville, J.A., rendered its first judgment (the “Judgment”) on the application of Article 2713.3 of the Civil Code of Québec (the...
Decentralized finance: Regulation, growth, and legal enforcement
Decentralized finance (“DeFi”) is a financial alternative offered through various cryptocurrency platforms where liquidity pools are available to investors without the need for third-party lending institutions. In the years to come, the nascent DeFi industry may shape, transform and even...
Lenders take note: Exercising discretion in good faith affirmed by the Supreme Court of Canada
On February 5, 2021, the Supreme Court of Canada released its decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District[1] (“Wastech v. Metro”), where it clarified the duty of contracting parties to exercise discretion in good faith....
The Highly Affected Sectors Credit Availability Program (HASCAP): A further COVID-19 relief measure for businesses
As the COVID-19 pandemic continues to take a toll on the Canadian economy, many continue to need additional financial relief to help them survive the negative impact of the pandemic on their business and their corresponding cash flow. By now...
Expansion of s. 38 of the BIA assignment of claims
Historically, an assignment of claims pursuant to s. 38 of Bankruptcy and Insolvency Act (the “BIA”)[1] has only been used in the context of an assignment in bankruptcy. For instance, the use of s. 38 of the BIA in the...
The anti-deprivation rule is alive and well: Chandos Construction v Deloitte Restructuring
In its most recent decision, Chandos Construction Ltd v Deloitte Restructuring Inc.[1], the Supreme Court of Canada (the “SCC”) reaffirmed the existence of the common law anti-deprivation rule in Canada. The anti-deprivation rule provides that a contractual provision is void...
Business interruption insurance and COVID-19: A discussion of future implications
In response to ongoing financial distress caused by COVID-19, many businesses have tried to make claims under their business interruption policies. It remains uncertain whether business interruption losses directly or indirectly caused by the pandemic, such as losses stemming from...
Asset tracing and corporate intelligence techniques in cryptocurrency investigations
In the first half of 2018, $1.1 billion USD in cryptocurrency was stolen or trafficked online, with the majority of attacks targeting either regular businesses or cryptocurrency exchanges.[1] By 2019, that figure had jumped to $4.4 billion.[2] Despite these staggering...
