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CCCA_V4No3_Restructuring-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 9/2/10 12:46 PM Page 32 Feature Not all the amendments were bad, Farley says. He is pleased with the addition of section 11.5 which allows courts to remove directors from debtor companies who are unreason- ably thwarting viable arrangements. Other members of the bankruptcy bar don’t share Farley’s grim outlook.The general consensus of those interviewed was that changes to the Bankruptcy and Insolvency Act (BIA) and the CCAA were far from radical and for the most part merely a codification of past jurisprudence. “The amendments codify certain remedies and reliefs that have been traditionally sought in bank- ruptcies, but that were not actually in the acts,” says Natasha MacParland, a partner in the financial restruc- turing and insolvency practice in the Toronto office of Davies Ward Phillip &Vineberg LLP.“The codification has created greater certainty.” Sandra Abitan, a partner in the insolvency and restruc- turing group at the Montreal office of Osler, Hoskin & Harcourt LLP echoes MacParland’s opinion. “Most of the changes were just codification of principles that were already part of the common law. The amend- ments have not led to a huge change.” “There were literally hundreds of cases since the acts were last amended in 1997,” says Frank Bennett, the principal at Bennett & Company.“The amendments were need- ed to bring both pieces of legislation into the 21st century.” “The drafters attempted to balance everyone’s interests,” says Patrick Shea, a partner in the financial services group of the Toronto office of Gowling Lafleur Henderson LLP.“The changes more closely align the BIA and CCAA and will pro- mote reorganization as an alternative to bankruptcy.” Changes to the CCAA The vast majority of restructurings in Canada of businesses with over $5-million in debt are handled under the CCAA instead of the BIA, since the CCAA provides more time to develop a restructuring plan and more discretion to courts to grant differ- ent types of relief, according to Abitan.While the amendments to the BIA have made it easier for a debtor to make a proposal and obtain interim financing, she expects the majority of large cap restructurings to continue under the CCAA. Prior to the amendments the CCAA was“very skinny”with “few statutes” that needed to be “fleshed out,”Abitan says.“It’s helpful to have a more detailed framework as opposed to just referring to jurisprudence.” Farley,who wrote much of the most significant jurisprudence Sandra Abitan on the CCAA, doesn’t concur. “Even though legislators PIERRE CHARBONNEAU Partner attempted to codify the common law,they didn’t do a very good Osler, Hoskin & Harcourt LLP job… The problem with codification is that it is legislating in Montreal 32 CCCA Canadian Corporate Counsel Association FALL 2010