Over his 34 year career as one of Canada’s leading insolvency lawyers, Kevin has acted as counsel to participants with significant roles in most of Canada’s largest and most complex restructuring and insolvency cases. Representative cases organized by industry follow:
- Curragh Inc. – Counsel of the Interim Receiver
- Royal Oak Mines – Counsel for Interim Receiver and Monitor
- Minven Gold – Counsel for the debtor
- Air Canada – Counsel for Aerogold
- City Express – Counsel for aircraft lessor
- Air Atlantic – counsel for lending syndicate and owner of the restructured airline
- Abitibi – counsel for lending syndicate
- Grant Forest Products – counsel for lending syndicate
- Arctic Glacier Inc. – counsel for the debtor
- Red Carpet Distribution – counsel for secured creditor
- Eatons – counsel for mortgagee of the Hamilton Eaton’s Centre
- Peoples Jewelers – counsel for equipment lessor
- Bargain Harolds – counsel for K-Mart
- Canwest Global – counsel for Goldman Sachs
Commercial Real Estate
- Bramalea – counsel for secured creditor
- Campeau Corporation – counsel for the debtor
- O&Y – counsel for CIBC
- Mater’s Management – counsel for the Receiver
Telcom and high tech
- Wind Mobile – counsel for the independent members of the board of directors
- Nortel – Canadian counsel for Avaya in purchase of the Enterprise Solutions Business
Manufacturing – Automotive
- Meridian Technologies – counsel for buyers of the business in restructuring
Manufacturing – Other
- W.C. Woods Corporation – counsel for the debtor
- Standard Trust Company – counsel for the liquidator
- Asset Back Commercial Paper – counsel for the 5 largest Canadian banks
- Growthworks Canadian Fund Inc. – counsel for the Fund.
1) The Chartered Institute of Arbitrators (CIArb);
2) The Law Society of Upper Canada
3) The Insolvency Institute or Canada
4) Turnaround Management Association
5) Canadian Bar Association
6) Advocate’s society
After more than 30 years in Big Law commercial law firms, Kevin McElcheran, Commercial Dispute Resolution has opened to offer mediation, arbitration and independent counsel services to participants in commercial disputes, particularly disputes arising from financial distress. In addition to these essentially legal services, Kevin has founded Oriole Advisors Ltd. to provide restructuring advisory services.
Both Commercial Dispute Resolution and Oriole Advisors focus on helping business people to discover and implement effective going concern solutions for the business problems caused by insolvency.
Fundamentally, insolvency is a business problem that requires a business solution. A legal system cannot provide the solutions. It can only provide a context in which business solutions can be conceived, developed and implemented.
Over the last three decades, the Companies’ Creditors Arrangement Act , known as the CCAA, provided the framework necessary for the restructuring culture prevailing in Canada to develop. The CCAA uses court intervention to stay creditors from pursuing their legal remedies temporarily to permit the debtor to build consensus among its affected stakeholders around a compromise that preserves going concern value in the business and distributes that value fairly.
The essence of every restructuring is a transformative transaction to either compromise debt claims or to sell the business as a going concern. The initial stay and court supervision that are necessary features of CCAA proceeding are not end in themselves, they are just the very expensive means to the transformative restructuring transaction that is necessary for the business’ revitalization. The stay protects the business from aggressive and disruptive creditor action and court supervision can provide discipline to assist the leaders of the restructuring process to move the plan development process forward. Both elements of the CCAA restructuring process can be helpful to the restructuring process but at great expense.
The underlying philosophy for both Commercial Dispute Resolution and Oriole Advisors is that, to the extent possible, the resolution of commercial issues is best achieved, when possible, outside of the court. The transformative transactions that salvage viable businesses must be consensual to be effective. A successful restructuring cannot be won in a court. It can only be achieved by dialogue and persuasion among the affected classes of creditors or their representatives.