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Banners Broker Cross-Border Insolvency

Published: 09/17/2014

By David Ward, Larry Ellis

In the context of cross-border insolvencies, Canadian courts have consistently encouraged comity and co-operation with courts in other countries.

The winding-up of Banners Broker International Limited (“Banners Broker”) illustrates the flexible nature of the relief available and the ability of our courts to deal with peculiar and unusual circumstances.

Banners Broker was an internet advertising business based in the Isle of Man. It had an online business presence that was international and is believed to have involved a significant Canadian dimension.

In August 2014, the Joint Liquidators of Banners Brokers appointed by the High Court of Justice of the Isle of Man came to Canada to seek recognition of their insolvency proceeding as a “foreign main proceeding” pursuant to Part XIII of the Bankruptcy and Insolvency Act (Canada).

The request for foreign recognition proved non-controversial and was granted by the Ontario Superior Court of Justice (Commercial List) (the “Court”).

The Banners Broker cross-border proceeding is novel, however, in several important respects.

  • First, the Joint Liquidators requested and were granted the appointment of an investigative receiver (the “Receiver”) in Canada. The Receiver has been charged by the Court with identifying and realizing on Banners Broker’s local assets.
  • Second, an information officer was not appointed. Information officers, who have a monitoring and creditor liaison function, are generally appointed by the court in Canadian foreign recognition proceedings. In the Banners Broker proceeding, however, the Court accepted that the Receiver, the Court-appointed officer, was appropriately positioned to undertake what are typically an information officer’s responsibilities.
  • Finally, Banners Broker is believed to be the first cross-border insolvency case between Canada and the Isle of Man.

The investigation and liquidation of Banners Broker is ongoing. Cassels Brock acts as counsel to the Joint Liquidators as well as the Receiver.