38 | LEXPERT • December 2014 | www.lexpert.ca
COURT-APPOINTED MONITORS
THESE ARE THE three
most frequent questions that our colleagues outside Canada ask
when they face a Canadian restructuring under the Companies' Creditors Arrangement Act
("CCAA"): Who is this monitor? What is its role? Who does it represent?
e most simple, textbook answer to the fi rst question is probably the following : A moni-
tor is usually an accounting or fi nancial advisory fi rm that must be licensed to act as a trustee
in bankruptcy under the Canadian Bankruptcy and Insolvency Act ("BIA"). Accordingly,
monitors tend to be professionals in Canadian accounting or fi nancial advisory fi rms who
have obtained their Chartered Insolvency and Restructuring Professional ("CIRP") designa-
tion from the Canadian Association of Insolvency and Restructuring Professionals.
at being said, the monitor is much more. Aside from the debtor company, the monitor
has become the most important player under the CCAA, the Canadian equivalent of Chap-
ter 11 of the US Bankruptcy Code ("Chapter 11").
In recent years, the variety of roles undertaken by court-appointed monitors in reorgani-
zations under the CCAA has considerably expanded. At one time, an appointment of the
monitor was by virtue of the inherent jurisdiction of the court under the CCAA, but now
the appointment is a statutory requirement
1
that includes active participation by the moni-
tor in the restructuring process. One could say that the amendments to the CCAA that came
into force in 2009 have further expanded the powers and the duties of monitors, although it
is more or less a codifi cation of the existing practice. However, it seems that the courts have
expanded and tailored the monitor's role, including its powers and obligations, beyond the
CCAA amendments.
We understand that for our non-Canadian colleagues, the monitor is a "creature" whose
role is sometimes diffi cult to grasp and understand. is misunderstanding can probably be
explained by the lack of a similar player under virtually all international restructuring legisla-
THE ROLE
OF THE MONITOR
AND ITS IMPACT ON
US RESTRUCTURINGS
In recent years, the variety of roles undertaken
by court-appointed monitors in reorganizations
under the CCAA has considerably expanded
BY DENIS FERLAND AND CHRISTIAN LACHANCE,
DAVIES WARD PHILLIPS & VINEBERG LLP
