On the Case
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Pratte, Guy J.
Borden Ladner
Gervais LLP
1 (888) 918-2545
gpratte@blg.com
A member of the On-
tario and Québec Bars
and an ACTL Fellow,
Mr. Pratte specializes
in commercial litigation
and public law before all
levels of court, includ-
ing the SCC, Federal
Courts, and the Ontario
and Québec Courts
of Appeal and
Superior Courts.
Radomski, Harry B.
Goodmans LLP
(416) 597-4142
hradomski@goodmans.ca
Mr. Radomski's national
litigation practice fo-
cuses on IP law before
courts and tribunals.
He has appeared before
the SCC on leading
patent and trade-mark
issues and is recog-
nized for proceedings
under the PMNOC
for generic clients.
Ranking, Gerald L.R.
Fasken Martineau
DuMoulin LLP
(416) 865-4419
granking@fasken.com
Mr. Ranking's civil,
administrative and
commercial litigation,
arbitration and media-
tion practice extends to
professional negligence,
pensions, shareholder
rights, banking, insur-
ance, real estate, prod-
uct liability and employ-
ment matters.
Prehogan, Kenneth
WeirFoulds LLP
(416) 947-5028
prehogan@weirfoulds.com
Mr. Prehogan is trial
and appellate counsel
on corporate, com-
mercial, real estate and
leasing matters. His
clients have included
public and private
companies, directors
and shareholders,
financial institutions,
governments and
pension funds.
Rand, Clifford L.
Deloitte Tax Law LLP
(416) 775-8830
crand@deloittetaxlaw.ca
Mr. Rand's practice is
focused on tax litigation
and assisting taxpayers
in managing a wide var-
iety of large or complex
tax audits, including
those involving cross-
border reorganizations,
trasfer pricing and inter-
national tax treaties.
Reeson, QC,
Rick T. G.
Miller Thomson LLP
(780) 429-9719
rreeson@millerthomson.com
Mr. Reeson's practice
is focused on commer-
cial, bankruptcy and
insolvency litigation
as well as business
transactions including
business law, banking
law and bankruptcy and
insolvency law, and all
manner of business
disputes.
ex," says Andrew Hatnay of Koskie Minsky LLP in Toronto,
who appeared in the case as the court-appointed represen-
tative counsel for employees of U.S. Steel Canada Inc. who
were involved in CCAA proceedings and might be affected
by the decision. "e court decided the case on the narrow
issue of whether the secured creditor could proceed with a
bankruptcy petition."
Strictly speaking, Hatnay is correct: the Court of Appeal
did decide the case on the transition issue, ruling that wheth-
er to allow the transition from CCAA to BIA was a discre-
tionary decision on the part of the CCAA judge. Because
the deemed trust would not apply under the BIA, it became
unnecessary to decide the priority issue.
But regardless of the interpretation put on the Court of
Appeal's approach to the priority issue, Grant Forest does
confirm that insolvency proceedings – absent bad faith and
subject to the court's approval – could move from one stat-
ute to another.
"is means that, where advantageous, parties can opt for
the BIA's structured distribution scheme rather than pro-
ceeding under the CCAA, as long as such election is done
in good faith," Torys writes. "is is a very important tool
available to lenders, where the circumstances are appropriate,
to combat uncertainty in priority disputes."
"SECURED CREDITORS WHO WISH
TO ALTER PRIORITIES IN THEIR FAVOUR
CAN REST ASSURED THAT THEY WILL
BE ABLE TO CONVERT CCAA PROCEEDINGS
TO BANKRUPTCY PROCEEDINGS."
– David Byers, Stikeman Elliott LLP
