Companies: 2017

Thursday, April 6, 2017

When to remove

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When not to remove

Shortcuts:

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Removal

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Either click on "edit" or "edit source" at the top of the page, or if the maintenance template is not at the top but somewhere in the body of the article, you might instead use a section edit link;
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Changing a template

Problems flagged by some templates may imply secondary problems that will still exist after you take care of the main issue. In such cases, it may be more appropriate to switch the template to another applicable one following your edits, rather than just removing it. If necessary, the reasoning behind the change in templates can be included in the edit summary.
Case in point is the template example used above, {{Unreferenced}}. It is placed on pages with no references. Thus, adding just one suitable reference renders that template no longer applicable. However, that change does not take care of the overarching issue of poor sourcing. In this example, a change to a different template may be appropriate, depending on the type, quality, depth and manner of sourcing added to fix the issue, such as {{refimprove}}, {{No footnotes}}, {{Primary sources}}, or one of the many others listed at Wikipedia:Template messages/Sources of articles.
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Specific template guidance

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Template:Multiple issues – {{Multiple issues}} [show]

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Template:Refimprove – {{Refimprove}} [show]

Template:No footnotes – {{No footnotes}} [show]

Template:Primary sources – {{Primary sources}} [show]

Template:Notability – {{Notability}} [show]

Template:Advert – {{Advert}} [show]

Template:POV – {{POV}} [show]

Template:Lead missing – {{Lead missing}} [show]

Researching the tagged issue

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Still need help?

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Overview

Maintenance templates (or "tags") are never removed automatically. If you fix the issue(s) described in a maintenance template, the tag will remain in the article until you or someone else manually removes it. The mechanics of removal is usually as simple as clicking "Edit" at the top of the page or in the section involved (if you're not already in edit mode), removing the code that produces the display of the template, leaving an edit summary, and saving the page.
It is not okay to remove maintenance templates until the issue flagged by the template is remedied first – that is, only once the maintenance tag is no longer valid, unless it truly did not belong in the first place.
Wikipedia works because of the efforts of volunteers like you, making bold edits to help build this encyclopedia. Fixing problems and then removing maintenance templates when you're done is important in that effort.

Addressing the flagged problem

We don't know which maintenance tag brought you to this page, and thus what specific problem needs attention. However, every maintenance template contains links to help pages, policies, guidelines, or other relevant pages that provide information on the problem the template was placed to flag. You will also find guidance on some of the more common templates below.
Many common templates address problems with article citations and references, or their lack—because reliable sourcing is the lifeblood of Wikipedia articles and at the core of all of Wikipedia's content policies and guidelines, such as notability, verifiability, neutral point of view, and no original research. But a host of other issues may be flagged, including tone and style of writing, structure and formatting, lack of links to other articles or from other articles to the article at issue, compliance with Wikipedia's manual of style and the lack of a lead section.
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An example

If the issue flagged by the maintenance template is that the article contains no references, then the template used might be {{Unreferenced}} – typically placed by the code you would see when wikitext (source) editing: {{Unreferenced|date=April 2017}}.
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Example:

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Whatever maintenance tag brought you to this help page should likewise contain relevant explanatory links addressed to whatever its issue is. Read these explanatory and contextual pages to learn about the problem and what it is you need to do to take care of it. Again, some of the more common maintenance templates seen are addressed in the specific template guidance section below.

Kitco Pool Controversy

Kitco offers unallocated precious metals accounts, called "Kitco Pool." Normally, unallocated precious metals account are like "IOU"s and backed by the "general stock" of the dealer. In the event of bankruptcy a pool holder would become an unsecured creditor of the company. Kitco addressed these concerns by stating that the Kitco Pool is 100% backed by physical precious metals, segregated from Kitco's own assets and belonging entirely to Kitco Pool customers.
Starting back in 2007, silver analyst Ted Butler voiced concerns over unallocated accounts including the Kitco Pool.^[9] In March, 2014 a blogger did some investigating and discovered that the Kitco Pool is no longer 100% backed by physical precious metals, not properly segregated from Kitco's own assets ($25 million of the Kitco Pool was seized by Revenue Quebec in June, 2011), and Kitco Pool customers are not considered creditors in the ongoing CCAA proceedings.^[10] Such changes would be acceptable if customers were made aware of them; however, the changes were made surreptitiously. Therefore, some people are investing based on past reassurances without knowing the truth about the Kitco Pool.
Kitco rejects ARQ allegations.^[11]

References

"Articles by Kitco News". Nasdaq.com. 15 March 2011. Retrieved 15 March 2011.

Kitco rejects ARQ allegations

Categories:

"GATA". gata.org. Retrieved 15 March 2011.

"Conflict Minerals: Is the Industry Ready?". World News. 16 December 2010. Retrieved 15 March 2011.

"About Kitco News". Kitco News. Retrieved 15 March 2011.

"Kitco Metals Inc. Restructuring Case".

Van Praet, Nicolas (December 9, 2013). "Kitco Metals among gold traders facing Quebec tax fraud allegations".

http://www.richter.ca/~/media/Files/Insolvency%20Cases/K/Kitco-Metals/CCAA%20Proceedings/Court%20orders/13-Order-8thExtension-contd-20141111.ashx?la=en Missing or empty |title= (help)

20th Monitor Report

Butler, Ted. "Buyer Beware".

"Changes in Kitco Pool Safety".

History

In the late 1970s, college student Bart Kitner started trading scrap gold using a $700 loan.^{[citation needed]} He refined and sold the resultant pure gold grain on to bigger players. Eventually, he was able to expand his business into other industrial areas and, by the late 1990s, into precious metals products.
In 1995 the website Kitco.com was launched, providing market information, such as prices, trends and news.
Today, Kitco occupies more than two floors of a Montreal office building and two other offices in New York and Hong Kong.

Kitco News

Kitco News is the journalistic division of Kitco, reporting using articles^[1] and videos. Original coverage by Kitco News includes being one of the first organizations to break the story about the Gold Anti-Trust Action Committee's (GATA) lawsuit against the Federal Reserve, as well as focus pieces on issues such as conflict minerals in the Congo.^[2]^[3] In addition to this, Kitco News reports on price movements within the precious and base metals markets, and provides both fundamental and technical analyses.^[4]
Kitco has been featured and quoted in major American, Canadian and international publications.^{[citation needed]}

Tax Issues and Creditor Protection

Among Kitco’s lines of business is the purchase of scrap precious metals. Kitco pays its suppliers sales taxes on these purchases and receives tax credits for the corresponding amounts. Alleging that some of these suppliers have not paid back the taxes owed to it, Revenue Quebec is holding Kitco responsible for these unremitted taxes.^[5] Revenue Quebec's issuance of assessments for these taxes has forced Kitco to file for creditor protection.^[6] Kitco strongly contests these assessments.
On June 8, 2011, the day after Revenue Quebec raided Kitco's headquarters, Kitco was granted CCAA creditor protection by the courts (similar to U.S. Chapter 11 bankruptcy protection). On November 6, 2014, the CCAA protection was extended again to June 18, 2015.^[7] The CCAA protection allows Kitco to continue under its existing management, with Richter acting as a Monitor. Around May, 2014 Kitco paid the majority of creditors in full, with others receiving partial payments (except Revenue Quebec).^[8]

Comparison of CCAA with other bankruptcy protection proceedings

The CCAA has been described as being similar in nature to Chapter 11 proceedings in the United States and to administration proceedings and company voluntary arrangements ("CVAs") in the United Kingdom. Differences between the various proceedings include the following highlights:

Action	CCAA (Canada)	Chapter 11 (US)^[59]^[60]	Administration (UK)^[61]	CVA (UK)^[62]
Applicable to	Insolvent companies (or affiliated groups) with debts greater than $5 million	Any debtor	Any company that is or is likely to become unable to pay its debts	Any company, whether insolvent or not
Initiated by	Insolvent company (or creditor), upon application to the court	Insolvent person, upon application to the court	Company, its directors, or a holder of a floating charge (either unilaterally or on application to the court), or any other creditor (on application to the court)	The directors of a company
Scope of plan	Within the court's discretion	As prescribed by law	As proposed by the administrator and approved at a meeting of the company's creditors	As proposed by the directors and approved at meetings of the company and of its creditors, and then approved by the court
Stay of proceedings	Upon order of the court	Automatic upon filing	May be lifted in specific cases with consent of administrator or permission of the court	If requested by the directors to the court
Debtor-in-possession financing	Allowed	Allowed	Not available	Not available

Notable CCAA proceedings

Relevant cases

Reference re constitutional validity of the Companies Creditors Arrangement Act 1934 CanLII 72, [1934] SCR 659 (6 June 1934)
Century Services Inc. v. Canada (Attorney General) 2010 SCC 60, [2010] 3 SCR 379 (16 December 2010)
Sun Indalex Finance, LLC v. United Steelworkers 2013 SCC 6 (1 February 2013)
Newfoundland and Labrador v. AbitibiBowater Inc. 2012 SCC 67 (7 December 2012)

Scope

In addition, the court has broad discretion in administering any other issues that may arise.^[37] As the Act says,

“

...the court, on the application of any person interested in the matter, may ... make any order that it considers appropriate in the circumstances.^[4]

”

This has allowed for very creative applications for resolving difficult scenarios, including:

the packaging and orderly resolution of holdings of asset-backed commercial paper by multiple investors, which can include the release of claims against third parties who are themselves solvent and not creditors of the debtor company^[38]^[39]^[40]
dealing with limited partnerships managed by an insolvent general partner^[41]
arranging for disposal of the company through a stalking horse offer^[42]
providing a more effective way for arranging merger and acquisition transactions involving distressed companies^[43]
administering the liquidation of the company^[44]
declining to approve restructuring plans, either because they are poorly conceived^[45]^[46] or contrary to the best interests of the parties concerned^[47]

Stability during proceedings

In order to assure that the company's operations will continue during the proceedings, the court has power to declare that the assets of the company are subject to a security or charge with respect to certain matters, and may further order that such charges rank ahead of those of secured creditors. They include:

arrangements similar to debtor-in-possession financing for sustaining the company's operations^[48]^[49] (also known as a "DIP charge")
payments to specified suppliers for continuing to provide goods or services that are critical to the company's operation^[50]
indemnification for directors and officers for actions done after the commencement of proceedings, where appropriate insurance coverage is not in effect.^[51]
security (known as an "administration charge") for fees and expenses of the monitor and any other specified financial, legal or other experts.^[52]

This "super priority" status is construed broadly, and has been held to even defeat statutory deemed trusts (such as those concerning pension plan deficiencies and vacation pay that exist in Ontario),^[53]^[54] as well as in rem claims such as maritime liens that are found in maritime law.^[55]

Other powers

The court may also order:

the removal of directors if they are unreasonably impairing (or likely to unreasonably impair) the possibility of a viable compromise or arrangement being made in respect of the company, or are acting (or likely to act) inappropriately as a director in the circumstances.^[56]
recovery of amounts arising from fraudulent preferences and undervalue transactions^[57]
the coordination of its proceedings with corresponding foreign proceedings^[58]

Powers of the court

Any interested person may apply to the court for an order under the Act.^[4] This is normally the debtor company, but a creditor can also do so.^[23] The court having jurisdiction is the superior court for the province in which the company's head office or chief place of business in Canada, or, in the absence of that, where any of its assets are situated.^[24]
When the application is made, the court is required to appoint a monitor with respect to the business and financial affairs of the company, who must be a trustee in bankruptcy under the Bankruptcy and Insolvency Act.^[25] The monitor is required to investigate and report back to the court on the company, advise the court with respect to any actions that need to be taken, and to carry out any other functions in relation to the company that the court may direct.^[26]
Where a compromise or arrangement has already been negotiated with the secured^[27] or unsecured^[28] creditors — essentially creating a pre-packaged insolvency — the court may summarily order that it proceed to be voted on by each class of creditors concerned, and, where necessary, by the shareholders as well. Whether a creditor is secured or unsecured is governed by the BIA.^[29]
However, the court is not bound to accept an application under the Act, and it can terminate previously granted orders (and even declare them to have been void ab initio) where an applicant has not made full and fair disclosure of all material facts.^[30] Where a petition for CCAA relief appears to be more like a defensive tactic than a bona fide attempt to restructure, it may prefer to order receivership instead.^[31]

Stay of proceedings

Where no such compromise or arrangement has been negotiated, the court, on application, may issue an order, lasting for 30 days,

staying,
restraining from continuing, or
prohibiting from commencing,

any proceedings against the debtor company, while negotiations are held to secure a compromise or arrangement with creditors and shareholders. The court may extend the protection for any period it sees fit.^[32] A stay may be lifted upon application to the court, but only in very restricted circumstances:

it will be difficult for a secured party to obtain relief where the effect of doing so would be to prevent the debtor from continuing to carry on business^[33]
however, lifting a stay may be more possible in a liquidating CCAA proceeding, having regard for the need to balance stakeholder interests^[34]

Provision is made for such stays not affecting investigations undertaken by any regulatory body (other than with respect to any payment that may be ordered), but the court can order the cancellation of such exemption where:

a viable compromise or arrangement could not otherwise be made in respect of the company, and
it is not contrary to the public interest that the regulatory body be affected by such order^[35]

However, as noted in Newfoundland and Labrador v. AbitibiBowater Inc., not all payments required under regulatory orders constitute claims under the CCAA and are thus subject to stay. Subsequent jurisprudence suggests that determining the status of such orders will be case-specific.^[36]

Application of the Act

Eligibility

The scope of the CCAA is quite broad. It applies to any debtor company (or group of affiliated companies) that owes more than $5 million,^[5] other than:

banks
insurance companies
trust and loan companies
railway and telegraph companies^[6]

and:

is either bankrupt or insolvent
has committed an act of bankruptcy under the Bankruptcy and Insolvency Act ("BIA") or is deemed insolvent under the Winding-Up and Restructuring Act ("WRA"), whether or not proceedings have been initiated under either of those Acts
has made an assignment, or has been made subject to a bankruptcy order, under the BIA, or
is being wound up under the WRA^[7]

Debtor protection

No person may terminate or amend — or claim an accelerated payment or forfeiture of the term under — any agreement, including a security agreement, with any debtor company subject to the CCAA by reason only that proceedings commenced under the CCAA or that the company is insolvent.^[8]
Agreements can be assigned^[9] or disclaimed^[10] by the debtor company as a result of the proceeding, by following prescribed procedures. These provisions extend beyond being used only within restructuring plans,^[11] and the courts have held that there is “no reason…why the same analysis cannot apply during a sale process that requires the business to be carried as a going concern”,^[12] In that regard:^[13]

there is no requirement that a plan of compromise or arrangement be imminent
the court will take into account whether refusing a disclaimer would have the effect of enhancing the position of the counter-party
whether a counter-party would suffer significant financial hardship if the disclaimer is allowed is a subjective test

Approval of the compromise or arrangement

Negotiated compromises and arrangements may deal with any matter, including claims against directors and amendments to the articles of incorporation or letters patent incorporating the company. When they have been approved by each participating class of creditors (by a two-thirds vote by value of the claims involved) the court may then approve it, and it will be binding on all persons, including trustees in bankruptcy.^[14]
They cannot be approved by the court if provision is not made for settling "super priority" claims (as they are known under the BIA) relating to:

compensation and reimbursement claims by employees other than officers and directors^[15]
pension plan contributions (except where agreement has been reached with the relevant pension regulator)^[16]
source deductions due on employee withholdings^[17]

In addition, no amounts relating to "equity claims"^[18] may be authorized by the court under a compromise or arrangement until all other claims are first paid in full.^[19] "Equity claims" have been held to include any claims shareholders may have against third parties in certain circumstances.^[20]^[21]^[22]

The CCAA within the Canadian insolvency regime

In 1990, the British Columbia Court of Appeal discussed the background behind the introduction of the CCAA in one of its rulings:

The CCAA was enacted by Parliament in 1933 when the nation and the world were in the grip of an economic depression. When a company became insolvent liquidation followed because that was the consequence of the only insolvency legislation which then existed - the Bankruptcy Act and the Winding-Up Act. Almost inevitably liquidation destroyed the shareholders' investment, yielded little by way of recovery to the creditors, and exacerbated the social evil of devastating levels of unemployment. The government of the day sought, through the CCAA, to create a regime whereby the principals of the company and the creditors could be brought together under the supervision of the court to attempt a reorganization or compromise or arrangement under which the company could continue in business.^[2]

The Supreme Court of Canada did not have a chance to explain the nature of the CCAA until the groundbreaking case of Century Services Inc. v. Canada (Attorney General) in 2010. In it, a detailed analysis was given in explaining the nature of insolvency law in Canada.
The Bankruptcy and Insolvency Act (BIA) provides a more rules-based approach for resolving a corporate debtor's insolvency, which must be observed strictly. The CCAA, on the other hand, provides a more discretionary approach that is remedial in nature, which therefore must be broadly construed.
Although the CCAA was originally enacted in 1933,^[3] extensive use of it only began in the economic downturn of the early 1980s. Recent legislative amendments of the BIA and CCAA have served to harmonize key aspects, such as the use of single proceedings, a common priority of claims structure, and encouraging reorganization over liquidation.

Discretionary power of the court in a CCAA reorganization

“

The legislation is remedial in the purest sense in that it provides a means whereby the devastating social and economic effects of bankruptcy or creditor initiated termination of ongoing business operations can be avoided while a court-supervised attempt to reorganize the financial affairs of the debtor company is made.

”

— - Elan Corp. v. Comiskey 1990 CanLII 6979, 1 OR (3d) 289 (2 November 1990), Court of Appeal (Ontario, Canada), per Doherty J.A., dissenting

This is noted together with s. 11 of the CCAA, which states that a court may, “subject to the restrictions set out in this Act, . . . make any order that it considers appropriate in the circumstances”.^[4]
The decision notes the interrelated nature of proceedings under the CCAA and BIA:

“

[77] The CCAA creates conditions for preserving the status quo while attempts are made to find common ground amongst stakeholders for a reorganization that is fair to all. Because the alternative to reorganization is often bankruptcy, participants will measure the impact of a reorganization against the position they would enjoy in liquidation. In the case at bar, the order fostered a harmonious transition between reorganization and liquidation while meeting the objective of a single collective proceeding that is common to both statutes.

Companies' Creditors Arrangement Act

From Wikipedia, the free encyclopedia

Companies’ Creditors Arrangement Act

An Act to facilitate compromises and arrangements between companies and their creditors
Citation	SC 1932‑33, c. 36 (now RSC 1985, c. C-36) [1]
Territorial extent	Canada
Enacted by	Parliament of Canada
Date enacted	1933
Amendments
SC 1952‑53, c. 3; SC 1990, c. 17; SC 1997, c. 12; SC 1998, c. 30; SC 2000, c. 30; SC 2001, c. 34; SC 2005, c. 47; SC 2007, c. 29; SC 2007, c. 36
Related legislation
Related Provisions (English) Dispositions connexes (French)

The Companies' Creditors Arrangement Act ("CCAA")^[1] is a statute of the Parliament of Canada that allows insolvent corporations owing their creditors in excess of $5 million to restructure their business and financial affairs.