It is not always possible to implement an informal workout. There are formal options available under the provisions of the Bankruptcy and Insolvency Act which may assist you in saving your business.
An insolvent business can file a Notice of Intention to Make a Proposal. The filing of that notice will give your company an absolute Stay of Proceedings against all claims by creditors against your company, including:
- Your bank
- Canada Revenue Agency
- Your landlord
- Utility suppliers
- Any other creditor
The Stay of Proceedings will give you a minimum of 30 days to come up with a plan to deal with your creditors. The time period can be extended by applying to Court for a further 45-day extension to a maximum of 6 months. The purpose of the Stay is to give your company the “breathing’ room that it needs to develop a plan to save your business without the threat of garnishees or legal actions.A Proposal can take any number of forms; however, a number of factors are required before any restructuring can be implemented:
- Recognition of the problem at an early date before the financial problems are insurmountable.
- The business must be viable and the debt manageable.
- Management must be committed to seeing the restructuring through to completion.
- Sufficient working capital must be available to continue operations during the restructuring process.
- A detailed, definitive, and realistic plan must be developed.
- The plan must be sold to the creditors by the proponent.
As long as the Proposal is approved by a majority of the creditors representing 2/3 of the value of the claims, the Proposal is binding on all the creditors, including those who vote against it.
The process of implementing a successful Proposal is obviously more complex than we have described and involves a detailed review and assessment of your company’s financial position.
A flowchart setting out the timelines and process for a Division I proposal can be found here.