Kenneth R. Rosenstein

Partner | Toronto

416.595.7923

Portrait of Kenneth R. Rosenstein

Bill 96: Something new or déjà vu?

On May 13, 2021, Bill 96: An Act Respecting French, The Official and Common Language of Québec (the “Bill”) was tabled by the Québec government. This Bill aims to provide for stricter protections of the French language within the Charter...

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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...

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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....

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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...

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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...

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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...

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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...

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Lifting the stay

On July 27, 2020, the Newfoundland and Labrador Supreme Court (the “Court”) released its decision in Great North Data Ltd., (Re),[1] where Justice Handrigan outlined principles for courts to consider when exercising their power under section 69.4 of the Bankruptcy...

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Beware: Recommencement of limitations periods and procedural timelines in Ontario on September 14, 2020

Please beware that on August 20, 2020, the Ontario government (the “Government”) issued a news release providing that the order pertaining to the suspensions of limitations period made under the Emergency Management and Civil Protections Act, R.S.O. 1990, c. E.9...

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Redemption in a receivership

A recent decision of the Ontario Superior Court of Justice (Commercial List) (the “Court”)  in the receivership proceedings of The Clover on Yonge Inc.[1] (the “Clover Project”) has addressed the question of whether a debtor in receivership can avoid a...

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Protection for tenants/borrowers

The Ontario government enacted the Protecting Small Business Act, 2020 (the “PSBA”), effective June 18, 2020, which amended Ontario’s Commercial Tenancies Act (“CTA”) and created greater incentive for commercial landlords to participate in the Canada Emergency Commercial Rent Assistance (“CECRA”)...

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Lender ‘know your client’ diligence—compliance with Canadian sanctions laws

In light of the continuing globalization of trade and international cross border financing arrangements, it is critical to determine if a transaction is prohibited by sanctions laws. Under Canadian and international law, there are a variety of sanctions laws that...

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Ontario Court of Appeal confirms the priority of secured construction lenders’ subsequent advances in face of execution creditors’ notice of writ

Some more good news for secured construction lenders. In a decision rendered April 9, 2020, the Ontario Court of Appeal has confirmed that the priority of subsequent advances by lenders holding a charge of real property will not be defeated...

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COVID-19 Financial Services Update: Pre-packaged sale transactions

As Canadian businesses continue to grapple with decreased cash flow as a result of COVID-19, many are looking for ways to generate cash and remain viable. One such way is to sell non-core assets or divisions through a pre-packaged sale...

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Protection for suppliers

The BC Supreme Court’s decision in Soccer Express Trading Corp. (Re), 2020 BCSC 749 shows some possible protections for critical suppliers under the CCAA When a company files for protection from its creditors, a supplier to that company who has...

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COVID-19 Financial Services Update: use of cash deposits in Québec

The situation created by the spread of COVID-19 will have a significant impact on the cashflow of several businesses as a result of a reduction in sales and, consequently, of accounts receivable and cash balances. While government support measures certainly...

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Deemed trust for unremitted GST primes bank’s security interest

On April 29, 2020, the Federal Court of Appeal (the “FCA”) released their decision in The Toronto-Dominion Bank v Canada[1] (“TD v Canada”), in which the FCA concluded that a deemed trust in respect of unremitted goods and sales tax...

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COVID-19 Financial Services update: perfection by control

Our prior Financial Services Updates have focused on proactive and defensive measures that both lenders and borrowers can take in light of the economic hardships brought on by the COVID-19 pandemic. This week we focus on a practical consideration that...

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COVID-19 Financial Services update: conflicts – related party loans

In light of the current economic environment surrounding the COVID-19 pandemic, companies are in need of additional liquidity and working capital. Recently, our group has seen an increase in lending transactions where shareholders are providing secured subordinated loans to their...

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COVID-19 Financial Services update: terminating or disclaiming contracts

In previous weeks our Financial Services Updates have discussed certain proactive measures that lenders and borrowers can take in light of the COVID-19 pandemic. This week our update focuses on the ability of companies to terminate contracts in accordance with...

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COVID-19: Financial Services update, lenders obligation to act in a commercially reasonable manner and their duty of good faith

As a result of the global economic uncertainty arising from the COVID-19 pandemic, borrowers are now confronted with numerous concerns, including business interruptions impacting their cashflow and their ability to maintain access to liquidity in the face of an uncertain...

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COVID-19 and release of holdback under Ontario’s Construction Act

UPDATE:  The issues raised in this advisory have been addressed by Ontario’s issuance of O.Reg.137/20.  Here is a link to our communique on O.Reg. 137/20.   On March 17, 2020 the Ontario Government declared a state of emergency. On March...

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COVID-19: Financial Services update, liquidity and anti-hoarding

While the COVID-19 pandemic is an unprecedented global crisis, the resurgence of the mentality that ‘Cash is King’ is all too familiar. In both the 2008 financial crisis and the downturn in the oil and gas industry beginning in 2014,...

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A Divided Court Dismisses CRA Appeal and upholds CCAA Super-Priority Charges

Yesterday, the Alberta insolvency community breathed a collective sigh of relief as the Alberta Court of Appeal issued its long-awaited decision in Canada v. Canada North Group Inc.[1] The majority decision confirms the power of the Court to grant charges...

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