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The Reorganization of Insolvent THE REORGANIZATION OF INSOLVENT BUSINESSES: A FUNCTIONAL COMPARISON OF THE CANADIAN AND AMERICAN MODELS by KEITH DENNIS YAMAUCHI B.A., The University of Calgary, 1977 LL.B., The University of Saskatchewan, 1981 A THESIS SUBMIEfED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNPIERSITY OF BRITISH COLUMBIA September 1994 © Keith Dennis Yarnauchi In presenting this thesis in partial fulfilment of the requirements for an advanced degree , I agree that the library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain not be allowed without my written permission. Department of Li.’ The University of British Columbia Vancouver, Canada Date ‘ DE-6 (2/88) 11 ABSUACE The business reorganization systems available to fmancially-distressed businesses in Canada are evolving into a system similar to that employed in the United States under Bankruptcy Reform Act of 1978 (Code). Business reorganizations have been an integral part of American commercial culture for almost a century. In Canada, business debtors may resort to the Companies’ Ceditoi A nwgemeni’ Act (CCAA) or the Bankruptcy and Insolvency Act (BIA), when seeking to reorganize their affairs. However, Canadian debtors use those systems sparingly. A primary objective of a business reorganization system is to balance the debtor’s rehabilitation efforts with the rights of creditors. This paper examines the Code and conducts a functional comparative analysis of certain aspects of the Canadian and American systems. The purpose of this examination is to detemiine whether the systems accomplish that objective and whether the Canadian systems could accomplish that objective more effectively by examining and incorporating aspects of other systems. This paper argues that the BL& neither encourages the debtor’s rehabilitation efforts nor treats creditors equitably. The primary reason for this shortcoming was the failure of the policymakers to consider the objectives of a business reorganization system. These policy objectives formed the foundation of the Code. As a result, the Code contains concepts that attempt to balance the interests of debtors and creditors and gives the courts the necessary flexibility to mould the concepts to achieve that balance. The CCAA provides little procedural or substantive guidance concerning its policy objectives. Accordingly, the courts have significant flexibility in applying its provisions. However, that flexibility also results in a lack predictability. The proposal provisions of the BIA must undergo significant changes before it becomes a workable business reorganization model. Further efforts at bankruptcy reform must include a thorough study of legislative and doctrinal aspects of systems other than those used domestically. This paper 111 argues that Canadian policymakers could create a fair and equitable business reorganization system by using the concepts in the Code and those developed under the CCAA and by attempting to resolve shortcomings of those systems identified by the courts and commentators. v TABLE OF CONTENTS ABSTRACT ii TABLE OF CONTENTS iv GLOSSARY vii CHAPTER I INTRODUCTION 1 A. CONCEPTUAL FRAMEWORK AM) ISSUES 1 B. LITERATURE REVIEW 6 C. METHODOLOGY 9 D. “BUSII.1ESS REORGANIZATION” 14 CHAPTER II LEGISLATIVE HISTORY 16 A. BIA 16 B. CCAA 21 C. CODE 22 CHAPTER ifi ELIGIBILITY TO REORGANIZE 29 A. DEFINITIONAL DIFFERENCES 29 B. TECHNICAL REQUIREMENTS UNDER THE CCAA 36 C. GOOD FAITH IN COMMENCING REORGANIZATION PROCEEDINGS 39 1. The Concept of Good Faith in a Business Reorganization 40 2. Legislative History and Evolution of the Concept of Good Faith in Reorganization Proceedings 42 3. Should Good Faith Be a Consideration? 51 D. CONCLUSION 53 V CHAPTER 1V CUSTODY OF THE ESTATE OF THE DEBTOR 55 A. DEBTOR IN POSSESSION (DIP) 56 1. Legislative History and Conceptual Basis 56 2. Fiduciary Duty ofthe DIP 61 3. External Control ofthe DIP 63 4. Appointment of a Trustee or Examiner 66 B. THE CANADIAN APPROACH 69 C. FULFILMENT OF OBJECTIVES AND PROPOSALS FOR REFORM 72 CHAPTER V CERTAIN ADMINISTRATiVE POWERS 76 A. ADEQUATE PROTECTION DURING THE STAY OF PROCEEDINGS 77 1. Terminology 80 (a) Secured Creditor 80 (b) Adequate Protection 84 2. Nature ofthe Stay ofProceedings 95 3. Scope ofthe Stay ofProceedings 103 4. Lifting the Stay / Dismissing the Case 114 (a) CCAA 116 (b) Code 121 (c) BIA 127 5. Analysis ofthe BIA and Proposals for Reform 132 B. REPUDIATION OR REJECTION OF REAL PROPERTY LEASES 140 1. Legislative History 140 vi 2. Repudiation / Rejection 145 3. Rejection or Repudiation ofUnexpired Leases to Facilitate Reorganization 152 (a) The Necessity for the Existence of a Lease 153 (b) Ipso Facto or Bankruptcy Clauses 155 (c) Time Limit for Election to Reject or Repudiate 159 (d) Performance of Obligations During the Stay ofProceedings 162 (e) The Landlords Claim or Compensation for Breach 168 (f) Standards for Rejection or Repudiation 171 4. Considerations for Reform 173 C. FINANCING THE PROCEEDING 175 1. Use of Cash Collateral 177 2. Obtaining Credit 186 3. Conclusion 200 CHAPTER VI MOVING TOWARD CONFIRMATION OF A PLAN OF REORGANIZATION 201 A. STEPS PRECEDING CONFIRMATION 202 B. TIME WITHIN WHICH THE PLAN MUST BE FILED 210 C. CLASSIFICATION AN]) VOTING ON THE PLAN 223 1. Voting on the Plan and Required Majorities 225 2. Classification of Claims and Interests 234 D. CRAM DOWN 254 CHAPTER VII CONCLUSION 270 Vu GLOSSARY 77B: Act ofJune 7, 1934, ch. 424, 48 Stat. 911 at 912 (1934). 1898 U.S. Act: Banknq,tcy Act of 1898, ch. 541, 30 Stat 544 (1898). 1984 Amendments: Bankruptcy Amendments and Fedeivi Judgesh4’ Act of 1984, Pub. L. No. 98-353, 98 Stat. 333 (1984). BIA: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as am. by S.C. 1992, c. 27. Bkr-L Ed: J. Lee, Consultant, Bankruptcy Service Lawyers Edition (Deerfield: Clark Boardman Callaghan, 1993). CCAA: Companies’ Creditors Arrangement Act, RS.C. 1985, c. C-36. Chandler Act: Chandler Act of 1938, ch. 575, 52 Stat. 840 (1938). Chapter 11: Code, ss. 1101-1174. Chapter X Chandler Act, ss. 101-276. Chapter XI: Chandler Act, ss. 30 1-399. Code: Bankruptcy Refonn Act of 1978, Pub. L. No. 95-598, 92 Stat. 2549 (codified as amended at 11 U.S.C. ss. 101-1329 (1988)). Colter Committee Report: Advisory Committee on Bankruptcy and Insolvency, Repoil (Ottawa: Consumer and Corporate Affairs Canada, 1986) (Chair: G. Colter). former Canadian Act: Bankruptcy Act, RS.C. 1985, c. B-3, as am. up to but not including S.C. 1992, c. 27. House Report: House Repon’, HR No. 95-595, 95th Cong., 1st Sess (1977), reprinted in 1978 U.S.C.C.A.N. (598 Stat.) 5963. Norton Bankruptcy Law & Practice: W.L. Norton, Jr., Non’on Bankruptcy Law and Prc4tice, 2d ed. (Deerfield: Clark Boardman Callaghan, 1994). Senate Report: Senate Repon’, S.R No. 95-989, 95th Cong., 2d Sess. (1978), reprinted in 1978 U.S.C.C.A.N. (598 Stat.) 5787. Tassé Report: Study Committee on Bankruptcy and Insolvency Legislation, Repon’ (Ottawa: Inforniation Canada, 1970) (Chair: R Tassé). 1 CHAI7EERI IN1RODUCHON A. CONCEPTUAL HAMEM)RK AND ISSUES Tn 1947, in the seminal article on the CCAA, Stanley E. Edwards wrote the following, when speaking about the development of business reorganization law in Canath: Canadians are fortunately in a position to adopt the portions they choose from the solutions, both statutory and judicial, which have been worked out in the United States and Great Britain. The wisdom of the procedures and rules worked out there will be examined in the light of Canadian conditions1in an effort to devise the fairest and most feasible scheme possible for application of the C.C.A.A. From the time of Edwards’ article to the early 1980s, there were few business reorganizations in Canada. There were two reasons for this. First, there was the notion that the CCAA was intended for 2 Few companies met large companies with complex capital structures. these criteria. The second reason was that the former Canadian Act did not allow the debtor to bind secured creditors to the proposal provisions or the ancillary provisions of the act that were enacted to facilitate proposals. Debtors started using the CCAA in the early 1980s and since then, it has become the “remedy 3 of debtors seeking to reorganize their fmancial of choice” affairs. However, the structure of the CCAA requires the debtor to make numerous court applications to accomplish the objectives of the act. Thus, companies that use the CCAA must have the necessary fmancial backing to withstand the significant costs attendant on such a proceeding. The former Canadian Act continued to be of little use to debtors with significant secured debt. Bill C-22,4 which received Royal Assent on June 23, 1992, resulted in significant amendments 1 S.E. Edwards, “Reorganizations Under the Companies’ Creditors Arrangement Act” (1947), 25 Caii Bar Rev. 587 at 592. 2 For a discussion of this issue, see chapter ffl(B), below. F.J.C. Newbould, Q.C. “The Companies’ Creditors Arrangement Act” (1992) 7 B.F.L.R 51. ‘ Bill C-22, An Act to Amend the Bankmptcy Act and to Amend the Income Tccc Act in consequence thereof, 3d Sess., 34th Parl., 1991 (assented to 23 June 1992). 2 to the former Canadian Act. The amendments changed the name of the former Canadian Act to the Bankruptcy and Insvlvency A ct5 and they were proclaimed in force on November 30, 1992.6 The BIA completely changed substantive and procedural aspects of the proposal provisions of the former Canadian Act.
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