ITB Marine Group Ltd. v. Northern Transportation Company Limited, 2017 BCSC 2007

This is one of only a few cases, and the only case in BC, where a Court has considered a priority dispute between a secured creditor and the administrator of a pension plan in the context of insolvency proceedings. Specifically, the Court had to consider interplay among the rights of secured creditors, the deemed trust provisions of the Canada Pension Benefits Standards Act (the “PBSA”) and the provisions of both the Companies’ Creditors Arrangement Act (the “CCAA”) and the Bankruptcy and Insolvency Act (the “BIA”). This case is now the leading authority on the matter in BC and one of the leading authorities on the matter in Canada. The dispute arose in the context of a receivership matter. We acted for ITB, a creditor of Northern Transportation Company Ltd. (“NTCL”). ITB had sold a number of marine vessels, including, most significantly, two shallow-draft barges (collectively, the “Vessels”), to NTCL by way of a conditional sale agreement. NTCL sought protection from its creditors under the Companies’ Creditors Arrangement Act in 2016 and after a failed restructuring sold most of its assets to the Government of the Northwest Territories in December 2016. That sale did not include the Vessels. NTCL assigned itself into bankruptcy on December 31, 2016. On March 20, 2017, ITB obtained an order appointing Alvarez & Marsal Canada Inc. (the “Receiver”) receiver of the Vessels. That same date, the Receiver obtained an order initiating a stalking horse sale process. On April 5, 2017, the Receiver obtained an approval and vesting order authorizing the Receiver to sell the Vessels for more than $6 million. Subsequently, Morneau Shepell Inc. (“MSI”), the administrator of NTCL pension plan, asserted an interest in the sale proceeds in priority to ITB’s first-ranking security interest on the basis of the deemed trust provisions of the PBSA. ITB resisted, and there was a two-day hearing to determine priorities. In Reasons for Judgments issued on November 6, 2017, Mr. Justice Bowden held that the priority for pension deficiency claims in CCAA and BIA proceedings are governed by the provisions of those Acts and not the PBSA. The Court also held that the language of the PBSA was insufficient to create a deemed trust in a debtor’s assets that took priority over an existing, perfected security interest.