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� � consideration for the assignment would be available to all preferred creditors, rather than going directly to the landlord, the Wickwire Holm partners observed. Harvey Haber, a senior partner at Goldman Sloan Nash & Haber LLP in Toronto and author of several Canada Law Book publications on commer- cial leasing, says he's puzzled by some of the wording of the amendments, particularly a clause stating the provi- sion regarding the assignment of leases "does not apply in respect of rights and obligations that are not assignable by reason of their nature." "Nobody understands that," says ntitled-7 1 e Editor-in-Chief Harvey M. Haber, Q.C., LSM and numerous leading experts as contributors Covers commercial leasing issues with specific emphasis on shopping centre leases in one text Shopping Centre Leases has been considered the definitive text on the subject since its inception in 1976. Revised and updated, this Second Edition includes a vast collection of articles and precedents on various topics of current interest. For example: • Technology and Telecommunications Concerns • Pandemic Preparedness for Building Owners and Managers • Insurance for Shopping Centres • Leasing Aspects of the Franchise Relationship • Transfers of Lease, Assigning, Subletting and Change of Control • Operating Costs and other Additional Rents in a Commercial Lease from a Landlord's and Tenant's Perspective • Agreements to Lease, Letters of Intent and Term Sheets For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book, a Thomson Reuters business Prices subject to change without notice, to applicable taxes and shipping & handling. Carefully prepared, this resource includes a number of precedent documents, a table of cases and relevant articles under each of these sections: • The Lease • Financial Considerations • Statutory Considerations • Rent and Expense of Operation • Operation of Business • Maintenance and Operation of Centre • Default • Precedents 8/11/10 3:41:52 PM Haber, observing that this wording raises a question as to whether or not the provision applies to property leases at all. He and other lawyers agree this is an open question since the amend- ments have yet to be tested in the courts. However, the prevailing wisdom among lawyers who have delved into this issue is that the amendments do apply to property leases and, as Haber suggests, caution dictates that one should assume this to be the case until the courts rule otherwise. Grignano says there is also a ques- tion as to whether or not the legislation is constitutional, since it involves the federal government legislating in an area that was previously dealt with by the provinces. In fact, his firm's research indicates that previous attempts by the federal government to include similar provisions in the BIA were struck down by the courts in 1929. "If a big enough insolvency comes up, landlords might band together and challenge this," says Grignano. The amendments also address situa- Order your copy today! Hardbound • 1,108 pp. • 2008 • $185 P/C 0279010002 • ISBN 978-0-88804-477-8 Visit and save 30% 18 SEPTEMBER 2010 www. C ANADIAN Law ye rmag.com tions where it is the landlord, rather than the tenant, who goes bankrupt. But these changes are largely uncontro- versial, according to Derek McCallum, a partner and member of the real estate and distressed real estate asset groups at Aird & Berlis LLP. He says the amendments to the BIA and CCAA essentially codify existing case law, stat- ing that the bankruptcy of a landlord doesn't give a receiver or trustee any power greater than a landlord to ter- minate a tenant's lease. V i s i t e o t u r w b s i f o r a