Steve Nash Fitness World (Wage Earner Protection)
Steve Nash Fitness World Bankruptcy
BC Supreme Court Application
On June 17, on behalf of the class members we opposed SNFW’s application for extension to file a proposal. We opposed on two main grounds. First, because SNFW readily admitted they were likely not going to file a proposal, there was no point in granting an extension. Second, we argued that the termination of employees on the eve of filing was a strategic measure undertaken to undermine the rights of employees to the benefit of SNFW. Justice Fitzpatrick did not accept either of our arguments and granted an extension.
The order, issued after Justice Fitzpatrick’s oral reasons, can be found here
Once the extension expires, SNFW will automatically be assigned into bankruptcy. At that point, the former employees (whether or not they are rehired) can apply for their claim under WEPPA.
On April 24, we appeared at a telephone conference for an application before the BC Supreme Court, which can be found here.
SNFW sought two specific orders. First, it sought to extend the initial statutory stay until June 17, 2020. Second, SNFW was seeking an order approving a sales process, attached as Schedule “B” to that application.
We sought an adjournment of the application for one week to make more fulsome submissions on the application. Our adjournment request was denied and the application was granted as proposed.
One important point that may affect employees, is that prospective purchasers will be encouraged to commit through the approved sales process to offer reemployment to those employees who were terminated by SNFW.
Stay tuned for further updates through the sales process.
Frequenly Asked Questions About the Lawsuit
Has Steve Nash filed for bankruptcy?
On April 3, 2020, SNFW filed a Certificate of Notice of Intention to make a proposal in bankruptcy. This is a preliminary step in the bankruptcy process provided for under the Bankruptcy and Insolvency Act “BIA”). Filing a Notice of Intention allows a company to restructure its affairs or make a proposal to creditors and those with legal claims against it prior to entering the bankruptcy process.
What is the effect of the Notice of Intention?
The effect of filing the Notice of Intention is to stay all legal proceedings against SNFW, including the class action. (s. 69(1) of the BIA) SNFW may continue to apply for extensions of the stay for up to a maximum of 6 months. SNFW must make a proposal to its creditors during the stay period. Any creditor may apply to lift the stay if the debtor is not able to make a viable proposal, or if any creditor would be significantly prejudiced by the continued operation of the stay.
If the wage claims underlying the class action are found to be a claim provable in bankruptcy, we may be entitled to participate as a class in SNFW’s bankruptcy proceedings.
What are the next steps in the process?
SNFW will be required to produce a cash-flow statement to be reviewed by SNFW’s Trustee in bankruptcy. The Trustee is an independent Licensed Insolvency Trustee, usually an accountancy firm, appointed by the Official Receiver, a representative of the Office of the Superintendent of Bankruptcy. The Trustee has responsibilities to both SNFW and its creditors, and must act in the best interest of both.
The duties of the Trustee include monitoring SNFW, appraising the property of SNFW, investigating the financial situation of SNFW and the causes of its insolvency, reporting on the company’s projected cash flow and the proposal, notifying the creditors of any meetings of creditors, and administering meetings of creditors.
Once the proposal is filed, the Trustee will send a notice of the first meeting of creditors to all known creditors of SNFW along with materials to be completed prior to the meeting. Creditors are required file a proof of claim in order to participate in the Proposal.
What if the proposal is rejected by the creditors?
SNFW will automatically be deemed bankrupt if the creditors reject the proposal. If the proposal is rejected, creditors of SNFW will be paid based on the outcome of the bankruptcy process.
When will employees get paid?
It is uncertain whether SNFW will have sufficient assets to cover the full amount of the claims. The claims of employees are given priority over those of other creditors in the context of the bankruptcy of an employer. However, the unpaid wages of individual employees are secured up to $2,000. (s. 81.3(1) BIA).
What are my alternatives for compensation?
Employees are not yet eligible for compensation under the Wage Earner Protection Program Act (“WEPPA”). We will provide updates on this as the process continues.