important supreme court of canada decision on ... - Goodmans

National Insolvency Review September 2006 Volume 23, No. 4
Canadian public policy, arguably there should be
financial recognition <strong>of</strong> the distinct economic benefit
arising from the required security (trust assets) for
branch liabilities over and above the general creditworthiness
<strong>of</strong> the insurer. A termination <strong>of</strong> rights that
are backed by a special, legislated creditworthiness
may be deserving <strong>of</strong> higher compensation in the
valuation process than the termination <strong>of</strong> rights for
which the sole recourse is to the general, less certain,
creditworthiness <strong>of</strong> the insurer.
Another reality — and complication — arising
from an expansive approach to recognition <strong>of</strong> unusual
foreign proceedings is that the law in the foreign
jurisdiction may itself evolve at a fundamental level.
Shortly after the Re Cavell trial <strong>decision</strong>, the U.K.
High Court <strong>of</strong> Justice, Chancery Division, Companies
Court, rendered a judgment in the first opposed sanction
hearing for a solvent scheme <strong>of</strong> arrangement in
respect <strong>of</strong> an insurance company: Re British Aviation
Insurance Company Limited (“BAIC”). 18
In BAIC, the U.K. <strong>court</strong> held that it was not necessary
to rule on the fairness <strong>of</strong> the proposed scheme because
the scheme’s proponent had failed to meet the
jurisdictional threshold when it incorrectly constituted
the classes <strong>of</strong> creditors. Nonetheless, the <strong>court</strong> went on
to hold that it would have refused to sanction the
scheme in any event, given the unfair aspects <strong>of</strong> the
scheme including the fact that creditors would no
longer be indemnified but would only be paid an estimate
<strong>of</strong> their liability. This criticism is to a large degree
a criticism <strong>of</strong> the inherent aspect <strong>of</strong> any solvent scheme
<strong>of</strong> arrangement for an insurance company, and goes to
the fundamental principles underlying the appropriateness
<strong>of</strong> such schemes. Domestic <strong>court</strong>s considering the
question <strong>of</strong> granting recognition and assistance orders
(or indeed the ultimate sanctioning <strong>of</strong> a foreign
scheme) will need to carefully consider the role and
impact <strong>of</strong> such considerations in their own analysis. 19
[Editor’s note: Graham D. Smith is a senior partner
in the litigation group <strong>of</strong> Goodmans LLP.]
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See, e.g., Beals v. Saldara, [2003] S.C.J. No. 77
(QL), [2003] 3 S.C.R. 416.
Bankruptcy and Insolvency Act, R.S.C. 1985 c. B-3,
ss. 267-275 and Companies’ Creditors Arrangement
Act, R.S.C. 1985, c. C-36, s. 18.6.
The trial level consideration <strong>of</strong> the Re Cavell case
actually involved three <strong>decision</strong>s <strong>of</strong> Justice Farley in
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the Ontario Superior Court <strong>of</strong> Justice – Commercial
List: the reasons issued on the initial recognition
hearing, the reasons issued on a subsequent
“come-back” motion, and reasons following a further
hearing on the terms <strong>of</strong> the order made on the
come-back hearing. These can be found respectively
at Cavell Insurance Co., Re, [2004] O.J. No. 5166
(QL), 2004 Can LII 48709, 6 C.B.R. (5th) 11
(S.C.J.); Cavell Insurance Co. (Bankruptcy), Re,
[2005] O.J. No. 645 (QL), 2005 Can LII 4094
(S.C.J.) (“Cavell (No. 2)”); and Cavell Insurance
Co., Re, [2005] O.J. No. 1725 (QL), 2005 Can LII
14315 (S.C.J.) (“Cavell (No. 3)”). The Court <strong>of</strong> Appeal’s
<strong>decision</strong> was released May 23, 2006, [2006]
O.J. No. 1998 (QL); supp’l reasons, [2006] O.J. No.
3448 (C.A.) (QL).
L. Chan Ho, “A new byword for cross-border restructuring:
Scheme <strong>of</strong> arrangement as judgment
(Re Cavell)”; Lloyd’s Maritime and Commercial
Law Quarterly, Vol. 2005, Part 3, August 2005, 295-
302, 297, 300-301.
S.C. 1991, c. 47.
R.S.O. 1990, c. R.6.
Re Cavell (No. 2), paras. 8-15.
Interestingly, the Convention and comity might not be
applied reciprocally by a U.K. <strong>court</strong>: L. Chan Ho, supra,
note 4, at 300.
Cavell (C.A.), supra, note 3, at paras. 44 and 45.
Ibid., at para. 54.
Ibid., at para. 48.
But see supra, note 4, at para. 49.
Re Cavell (No. 2), paras. 17-18 and Re Cavell (No.
3), paras. 9-10.
Re Cavell (No. 2), para. 14, citing, Canada Southern
Ry. Co. v. Gebhard, 109 US 527 (1883).
Castel and Walker, Canadian Conflict <strong>of</strong> Laws, 6th
ed., looseleaf (Markham: Butterworths, 2005), 31.2.
Holt Cargo Systems Inc. v. ABC Containerline N.V.
(Trustees <strong>of</strong>), [2001] S.C.J. No. 89 (QL), [2001] 3
S.C.R. 907, 940-945.
Imperial Life Assurance Co. <strong>of</strong> Canada v. Colmenares,
[1967] S.C.R. 443, 449.
[2005] EWHC 1621 (Ch).
Interestingly, the trial <strong>court</strong> in Re Cavell (No.2), supra,
note 3, at para. 5 noted that the Canadian insurance
regulator took the position in that case that the
scheme matters were primarily a contractual matter
between Cavell and its Canadian reinsureds. The position
<strong>of</strong> a Canadian regulator in this or other areas
may be influential for <strong>court</strong>s in future cases where the
effects <strong>of</strong> a foreign proceeding potentially clash with
Canadian public policy.
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