Canada: British Columbia Supreme Court 2011

Case 1207: MLCBI 16(3)
Canada: British Columbia Supreme Court [In Chambers]
Angiotech Pharmaceuticals Ltd. (Re)
28 January 2011
Original in English
Published in English: (2011) BCSC 115
[Keywords: presumption-centre of main interests (COMI)]

In an application to grant an initial order under the Companies Creditors
Arrangement Act (CCAA) (Part Four of the CCAA enacts the Model Law in
Canada) that would allow the petitioners reasonable time to reorganize the affairs of
the debtor company, the petitioners requested the judge to speak to the issue of
centre of main interests of the debtor company in view of an application they
intended to make in the United States for recognition of the Canadian proceedings
as foreign main proceedings under Chapter 15 of the United States Bankruptcy
Code, based on the debtor’s centre of main interests in British Colombia. The
petitioners presented evidence that the debtor company was a highly integrated
international enterprise that was directed from [its] head office in Vancouver,
Canada; that the reporting, corporate governance decisions, strategic and key
operating decisions, human resource functions, primary research and development
functions, information technology systems were all directed from Vancouver; that
the company’s CEO and senior management were based in Vancouver; and that all
petitioners had assets in Canada.

Citing the cases of Re Nortel Networks Corp.
judge pointed out that courts in Canada have found a number of factors to be
relevant in determining centre of main interests. These are: (a) the location where
corporate decisions are made; (b) the location of employee administrations,
including human resource functions; (c) the location of the company’s marketing
and communication functions; (d) whether the enterprise is managed on a
consolidated basis; (e) the extent of integration of an enterprise’s international
operations; (f) the centre of an enterprise’s corporate, banking, strategic and
management functions; (g) the existence of shared management within entities and
in an organization; (h) the location where cash management and accounting
functions are overseen; (i) the location where pricing decisions and new business
development initiatives are created; and (j) the seat of an enterprise’s treasury
management functions, including management of accounts receivable and accounts
payable.
From these factors and the facts of the case as submitted in evidence, the judge
agreed that the debtor’s centre of main interests was in British Columbia, Canada.