Bankruptcy and Insolvency Act | |
---|---|
Parliament of Canada | |
| |
Citation | RSC 1985, c. B-3 [1] |
Enacted by | Parliament of Canada |
Assented to | 1985 |
The Bankruptcy and Insolvency Act (BIA; French: Loi sur la faillite et l'insolvabilité) is one of the statutes that regulates the law on bankruptcy and insolvency in Canada. It governs bankruptcies, consumer and commercial proposals, and receiverships in Canada.
It also governs the Office of the Superintendent of Bankruptcy, a federal agency responsible for ensuring that bankruptcies are administered in a fair and orderly manner.
The nature of the Act within Canada's legal framework governing insolvency was described by the Supreme Court of Canada in Century Services Inc. v. Canada (Attorney General):
[13] Canadian commercial insolvency law is not codified in one exhaustive statute. Instead, Parliament has enacted multiple insolvency statutes, the main one being the BIA. The BIA offers a self-contained legal regime providing for both reorganization and liquidation.... It is characterized by a rules-based approach to proceedings. The BIA is available to insolvent debtors owing $1000 or more, regardless of whether they are natural or legal persons. It contains mechanisms for debtors to make proposals to their creditors for the adjustment of debts. If a proposal fails, the BIA contains a bridge to bankruptcy whereby the debtor's assets are liquidated and the proceeds paid to creditors in accordance with the statutory scheme of distribution. [1]
With certain exceptions, the Act covers a wide range of entities:
The Act governs bankruptcy proceedings, which are invoked:
The Act also governs receivership proceedings. Receivers may be appointed by a secured creditor under the terms of a general security agreement (where the debtor voluntarily agrees), or by the court where a secured creditor:
Provision is also made for dealing with cross-border insolvencies and the recognition of foreign proceedings. [18]
Several notable cases known as the "bankruptcy quartet" [19] stand for the following propositions about how the Act interacts with provincial legislation: [20]
However, there are instances where provincial law will continue to apply:
Issues concerning the extent of federal paramountcy continue to come before the Supreme Court of Canada. In the 2015 "paramountcy trilogy," the boundaries were further explored: [24] [25]
The Insolvent Act of 1875 [36] [37] |
| ||||||||||||||||||
No specific legislation on bankruptcy and insolvency previously existed in New Brunswick and Nova Scotia.
Year | Act | In force | Highlights |
1869 | An Act respecting Insolvency [39] | 1 September 1869 |
|
1875 | An Act respecting Insolvency [40] | 1 September 1875 |
|
1880 | An Act to Repeal the Acts Respecting Insolvency Now in Force in Canada [41] | 1 April 1880 |
|
1919 | The Bankruptcy Act of 1919 [42] | 1 July 1920 |
|
1923 | The Bankruptcy Act Amendment Act, 1923 [43] |
| |
1932 | The Bankruptcy Act Amendment Act, 1932 [44] |
| |
1949 [45] | 1 July 1950 |
| |
1966 | An Act to Amend the Bankruptcy Act [46] |
| |
1992 [47] | 30 November 1992 |
| |
1997 [48] | 30 April 1998 |
| |
2005
[49] 2007 [50] |
18 September 2009 |
|
Scenario | Action | Result | |
---|---|---|---|
if a person is insolvent [51] | he may make an assignment in bankruptcy [52] | the person is declared bankrupt, [53] which will continue until discharge | |
if a person is a debtor [54] that owes at least $1,000 and has committed an act of bankruptcy [55] | his creditors [56] may apply for a bankruptcy order to be issued against him [57] | ||
if an insolvent person makes a proposal under Division I [58] with respect to creditors | and where a default is made in the performance of any provision in a proposal (not waived by the inspectors or creditors) which is not remedied within the prescribed time | the court may annul the proposal [59] | |
or where it appears to the court that the proposal cannot continue without injustice or undue delay, or that the approval of the court was obtained by fraud | |||
or where the insolvent person is subsequently convicted of an offense under the Act | |||
if a consumer debtor makes a proposal under Division II [60] with respect to creditors | where a default is made in the performance of any provision in a proposal, there is evidence that the debtor is ineligible to make a proposal, the consumer proposal cannot continue without injustice or undue delay, the approval of the court was obtained by fraud, or the debtor is convicted of an offense under the Act | the court may annul the proposal [61] | |
where the debtor is in default for an amount greater than or equal to three payments (where payments are made monthly or more frequently), or (if less frequently) three months after being in default of any payment | the proposal is deemed to be annulled [62] |
A secured creditor cannot enforce security on the business assets of an insolvent person without having given 10 days' advance notice in the prescribed form and manner. [63]
No person may terminate or amend – or claim an accelerated payment or forfeiture of the term under – any agreement, including a security agreement, with a bankrupt individual by reason only of the individual's bankruptcy or insolvency. [64] Similar provision is made with respect to any insolvent person upon filing a notice of intention or a proposal. [65]
A notice of intention, [66] a Division I proposal, or a Division II proposal, will automatically create a stay of proceedings and "no creditor has any remedy against the debtor or the debtor's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy". Similar provision is also made on the bankruptcy of any debtor. [67] Directors of insolvent companies that have filed a notice of intention or a proposal have similar protection. [68]
S. 70(1) of the BIA provides that bankruptcy orders and assignments take precedence over "all judicial or other attachments, garnishments, certificates having the effect of judgments, judgments, certificates of judgment, legal hypothecs of judgment creditors, executions or other process against the property of a bankrupt," [69] but that does not extend to:
The Ontario Court of Appeal has ruled that, in the case of a "requirement to pay" under the Income Tax Act (Canada) that was issued after a notice of application to appoint a receiver (but before the court heard the application), supported by an ex parte "jeopardy order" issued by the Federal Court of Canada under s. 225.1(1) of that Act, [70] the "requirement to pay" was considered to have been completely executed on the date of its issue, and thus took precedence over other creditors' claims. [71] [72] [73]
The trustee/receiver must first realize the amount of the proceeds from the property that is available for payment to the different classes of creditors, and different rules apply according to the type of proceeding. They are summarized as follows:
Type | Notice of intention, or proposal [74] [75] | Bankruptcy [76] | Receivership |
---|---|---|---|
Held in trust for another person | Exclude | Exclude | Exclude |
Exempt from execution or seizure | Exclude | Exclude | Exclude |
Income tax refunds for the fiscal year of the event | Add | Add | Add |
Such powers over property as are exercised for the insolvent person's own benefit | Add | Add | Add |
Garnishments for enforcing notices of assessment for income tax, CPP and EI liability | Exclude | Exclude | Exclude |
Withholding taxes deducted at source | Exclude | Exclude | Exclude |
Funds constituting a deemed trust for the Crown (other than for garnishments and withholding taxes deducted at source) | Exclude | ||
Third party's property in possession of bankrupt [77] | Exclude | ||
Goods shipped in 30 days prior to the event, and still unpaid [78] | Exclude | Exclude | Exclude |
Produce of farmer, fisherman or aquaculturist shipped in 15 days prior to the event, and still unpaid [79] | Exclude | Exclude | Exclude |
Copyrights and manuscripts for works not yet published [80] | Revert to owner | ||
Property transferred at undervalue [81] | Add | Add | Add |
The estate is then settled, using the priority of claims outlined in the BIA.
The BIA's definition of property is quite broad:
"property" means any type of property, whether situated in Canada or elsewhere, and includes money, goods, things in action, land and every description of property, whether real or personal, legal or equitable, as well as obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, in, arising out of or incident to property;
As a consequence, the Supreme Court of Canada has ruled that direct payment clauses in contracts (allowing contractors to make payments to creditors of a bankrupt subcontractor) do not release the contractor from its obligations to the trustee of the estate. [82]
The resulting amount available from the estate is distributed to the creditors in the following order of priority (with each class/subclass paid in full before proceeding to the next):
Type | Description |
---|---|
"Super-priority" creditors |
|
Secured creditors | in order of priority, and to the extent that they have not realized on their security [86] |
Preferred creditors [87] |
|
Unsecured creditors | all remaining creditors (whose claims are not postponed below) subject to any subordination agreements that may be in place [88] |
Postponed claims [89] |
|
equity claims | settled only after all non-equity claims are settled in full [90] |
There are several important notes to consider in assessing the above priorities:
Every creditor must prove his claim and a creditor who does not prove his claim is not entitled to any distribution of the proceeds from bankrupt's estate. [95] The claim must be delivered to the trustee in bankruptcy and the trustee in bankruptcy must examine every proof of claim and can request further proof. The trustee may disallow, in whole or in part, any claim of right to a priority under the BIA or security. Generally, the test of proving the claim before the trustee in bankruptcy is very low, and a claim is proved unless it is too "remote and speculative". [96] The rationale for such a low test is to discharge as many claims as possible to allow the bankrupt to make a fresh start after the discharge.
Creditors also have the ability, with the approval of the court, to take over a cause of action that the trustee has decided not to pursue. [97]
Discharge does not extinguish claims that are provable in bankruptcy. It releases the debtor from such claims, and creditors cease to be able to enforce them. [98]
Some liabilities are not released upon discharge, including: [99]
Directors and parties related to the bankrupt may still be held personally liable for certain tax debts, [101] and, if a clearance certificate is not obtained from the tax authorities prior to discharge, directors' liability will subsequently resume. [102] Directors can also be held accountable for other liabilities arising from bankruptcy, regulatory and other statutory offences. [103]
In 2009, the Act was amended to reform the rules relating to setting aside any preferences, or transfers at undervalue, occurring before the initial bankruptcy event:
Section | Applies to | At arm's length | Not at arm's length | Additional remedies available [104] |
---|---|---|---|---|
S. 95 (preferences) [105] | A transfer of property made, a provision of services made, a charge on property made, a payment made, an obligation incurred or a judicial proceeding taken or suffered by an insolvent person where:
|
Applies to any payment made within three months of the initial event, and, in the absence of evidence to the contrary, it is presumed to have been made with intent | Applies to any payment made within 12 months of the initial event, and there is no need to prove intent | A trustee may also make a claim under provincial assignments and preferences legislation
[106] where:
|
S. 96 (transfers at undervalue) [107] | A disposition of property or provision of services, for which the consideration received by the debtor is either nil or conspicuously less than the fair market value of the consideration given by the debtor. | On application by the trustee, the court may declare a transfer void where:
|
The trustee need only prove to the court that:
|
A trustee usually makes a claim under provincial fraudulent conveyance legislation [108] at the same time as a s. 96 claim, in order to set aside the transfer. If valuable consideration has been given for the transfer, the trustee must prove that both the bankrupt and the transferee intended to defeat, hinder or delay the creditors. |
Recovery actions under ss. 95 and 96, as for other recovery actions with respect to collections, can only be initiated by the trustee, even when they may be of benefit only to a secured creditor (unless creditors seek court approval under s. 38 to pursue the matter directly). [109] [110]
The Act already empowered the court to inquire into circumstances where a bankrupt corporation had paid cash dividends or redeemed shares where the corporation was insolvent, or where the transactions made it so, during the 12 months prior to its bankruptcy. [111] In that regard,
S. 95(2) provides that, where a preference is given, the fact that it may have been given under pressure is irrelevant. However, the courts have ruled that a payment may withstand challenge by a trustee where it is made in furtherance of a reasonable business imperative. [115] [116]
The provincial Superior Courts have "such jurisdiction at law and in equity" as will enable them to exercise bankruptcy process under the Act. [117] The decisions of the court are enforceable in the courts of other Canadian provinces and all courts and the officers of all courts must act and co-operate in all bankruptcy matters. [118] Appeal from the court's orders lies to the provincial Court of Appeal where: [119]
Registrars of the provincial Superior Courts have significant powers in relation to procedural matters, unopposed proceedings and in other matters under the Act. [122]
The Office of the Superintendent of Bankruptcy ("OSB") is designed to supervise the administration of all estates and matters to which the Act applies. It grants licenses for the trustees in bankruptcy, inspects and/or investigates bankruptcy estates, reviews the conduct of the trustees in bankruptcy and the receivers, and examines trustee's accounts, receipts, disbursements and final statements. It has specific powers to intervene in any matter or proceeding in court as if the OSB were a party thereto, as well as to issue directives providing official interpretation of the bankruptcy process to the trustees in bankruptcy and the receivers. [123]
Trustees — either individuals or corporations — are licensed by the superintendent, and are appointed to administer an estate by virtue of the assignment, bankruptcy order or proposal that has been filed. By special resolution, the creditors of the estate may appoint or substitute another licensed trustee to assume the role. [124] A trustee is not bound to accept an appointment, but, once appointed, he must perform all duties that are legally required until his discharge or removal. [125] Otherwise, any licensed trustee can be appointed to act, subject to the following constraints:
The trustee acts as receiver for all the estate's property, and is entitled to see its books and records. [130] All moneys he receives must be deposited into a separate trust account. [131] When required, he is obliged to report on the estate's condition, moneys on hand, and property remaining unsold. [132] He is not obliged to continue the business of the bankrupt, where there is no good business case for doing so. [133] When he has completed the duties required of him for administering the estate, he shall apply to the court for a discharge, but any interested person may file an objection to having the discharge take place. [134]
All property of the bankruptcy vests in the trustee from the date of the bankruptcy, [135] and the trustee may register a bankruptcy order against any real property in which the bankrupt has any interest or estate. [136] The courts have held that trustees should clearly communicate to the bankrupt their intent to make a claim against the non-exempt equity in the bankrupt's property at the time of the assignment into bankruptcy. Failure to do so may result in:
The superintendent may undertake conservatory measures in order to protect an estate, as well as the rights of the creditors and debtors, in specified circumstances: [138]
At the first meeting of the creditors, up to five individuals may be appointed to be inspectors of the estate (except where the creditors decide that that is not necessary). [139] No inspector may be appointed if he is a party to any contested action or proceeding against the estate. Where the value of an individual debtor's property is under $15,000, [140] inspectors are not appointed (except where the creditors decide otherwise). [141]
The trustee is required to obtain the inspectors' permission before carrying out many of his responsibilities, such as the sale of property of the estate, the institution or defending of actions relating to the property of the bankrupt, settling any debts owing to the bankrupt and exercising trustee's discretion in retaining and assigning bankrupt's contracts. The inspectors must give their approval to the final statement of receipts and disbursements and trustee's fees.
Inspectors have a fiduciary duty to the creditors and should be impartial though acting in their interest. They should supervise the trustee's compliance with the Act and the superintendent's directives, and may apply for the removal of the trustee. [142]
The receiver must do what "practicality demands" to preserve the assets [143] [144] and must not go beyond what is necessary in the circumstances. [145]
The court may appoint an interim receiver:
In the first case, the applicant must give an undertaking with respect to the debtor's legal rights, and to damages in the event of the application being dismissed. The interim receiver can take conservatory measures and dispose of perishable property in order to comply with the order of the court, but the receiver cannot otherwise unduly interfere with the bankrupt in the carrying on of the debtor's business.
In the latter two cases, the court can only make the appointment if it is shown that it is necessary for the protection of the debtor's estate, or in the interest of the creditor(s).
The courts have set out the following factors [149] to be considered in exercising discretion on whether to appoint an interim receiver:
Bankruptcy and Insolvency Act | |
---|---|
Parliament of Canada | |
| |
Citation | RSC 1985, c. B-3 [1] |
Enacted by | Parliament of Canada |
Assented to | 1985 |
The Bankruptcy and Insolvency Act (BIA; French: Loi sur la faillite et l'insolvabilité) is one of the statutes that regulates the law on bankruptcy and insolvency in Canada. It governs bankruptcies, consumer and commercial proposals, and receiverships in Canada.
It also governs the Office of the Superintendent of Bankruptcy, a federal agency responsible for ensuring that bankruptcies are administered in a fair and orderly manner.
The nature of the Act within Canada's legal framework governing insolvency was described by the Supreme Court of Canada in Century Services Inc. v. Canada (Attorney General):
[13] Canadian commercial insolvency law is not codified in one exhaustive statute. Instead, Parliament has enacted multiple insolvency statutes, the main one being the BIA. The BIA offers a self-contained legal regime providing for both reorganization and liquidation.... It is characterized by a rules-based approach to proceedings. The BIA is available to insolvent debtors owing $1000 or more, regardless of whether they are natural or legal persons. It contains mechanisms for debtors to make proposals to their creditors for the adjustment of debts. If a proposal fails, the BIA contains a bridge to bankruptcy whereby the debtor's assets are liquidated and the proceeds paid to creditors in accordance with the statutory scheme of distribution. [1]
With certain exceptions, the Act covers a wide range of entities:
The Act governs bankruptcy proceedings, which are invoked:
The Act also governs receivership proceedings. Receivers may be appointed by a secured creditor under the terms of a general security agreement (where the debtor voluntarily agrees), or by the court where a secured creditor:
Provision is also made for dealing with cross-border insolvencies and the recognition of foreign proceedings. [18]
Several notable cases known as the "bankruptcy quartet" [19] stand for the following propositions about how the Act interacts with provincial legislation: [20]
However, there are instances where provincial law will continue to apply:
Issues concerning the extent of federal paramountcy continue to come before the Supreme Court of Canada. In the 2015 "paramountcy trilogy," the boundaries were further explored: [24] [25]
The Insolvent Act of 1875 [36] [37] |
| ||||||||||||||||||
No specific legislation on bankruptcy and insolvency previously existed in New Brunswick and Nova Scotia.
Year | Act | In force | Highlights |
1869 | An Act respecting Insolvency [39] | 1 September 1869 |
|
1875 | An Act respecting Insolvency [40] | 1 September 1875 |
|
1880 | An Act to Repeal the Acts Respecting Insolvency Now in Force in Canada [41] | 1 April 1880 |
|
1919 | The Bankruptcy Act of 1919 [42] | 1 July 1920 |
|
1923 | The Bankruptcy Act Amendment Act, 1923 [43] |
| |
1932 | The Bankruptcy Act Amendment Act, 1932 [44] |
| |
1949 [45] | 1 July 1950 |
| |
1966 | An Act to Amend the Bankruptcy Act [46] |
| |
1992 [47] | 30 November 1992 |
| |
1997 [48] | 30 April 1998 |
| |
2005
[49] 2007 [50] |
18 September 2009 |
|
Scenario | Action | Result | |
---|---|---|---|
if a person is insolvent [51] | he may make an assignment in bankruptcy [52] | the person is declared bankrupt, [53] which will continue until discharge | |
if a person is a debtor [54] that owes at least $1,000 and has committed an act of bankruptcy [55] | his creditors [56] may apply for a bankruptcy order to be issued against him [57] | ||
if an insolvent person makes a proposal under Division I [58] with respect to creditors | and where a default is made in the performance of any provision in a proposal (not waived by the inspectors or creditors) which is not remedied within the prescribed time | the court may annul the proposal [59] | |
or where it appears to the court that the proposal cannot continue without injustice or undue delay, or that the approval of the court was obtained by fraud | |||
or where the insolvent person is subsequently convicted of an offense under the Act | |||
if a consumer debtor makes a proposal under Division II [60] with respect to creditors | where a default is made in the performance of any provision in a proposal, there is evidence that the debtor is ineligible to make a proposal, the consumer proposal cannot continue without injustice or undue delay, the approval of the court was obtained by fraud, or the debtor is convicted of an offense under the Act | the court may annul the proposal [61] | |
where the debtor is in default for an amount greater than or equal to three payments (where payments are made monthly or more frequently), or (if less frequently) three months after being in default of any payment | the proposal is deemed to be annulled [62] |
A secured creditor cannot enforce security on the business assets of an insolvent person without having given 10 days' advance notice in the prescribed form and manner. [63]
No person may terminate or amend – or claim an accelerated payment or forfeiture of the term under – any agreement, including a security agreement, with a bankrupt individual by reason only of the individual's bankruptcy or insolvency. [64] Similar provision is made with respect to any insolvent person upon filing a notice of intention or a proposal. [65]
A notice of intention, [66] a Division I proposal, or a Division II proposal, will automatically create a stay of proceedings and "no creditor has any remedy against the debtor or the debtor's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy". Similar provision is also made on the bankruptcy of any debtor. [67] Directors of insolvent companies that have filed a notice of intention or a proposal have similar protection. [68]
S. 70(1) of the BIA provides that bankruptcy orders and assignments take precedence over "all judicial or other attachments, garnishments, certificates having the effect of judgments, judgments, certificates of judgment, legal hypothecs of judgment creditors, executions or other process against the property of a bankrupt," [69] but that does not extend to:
The Ontario Court of Appeal has ruled that, in the case of a "requirement to pay" under the Income Tax Act (Canada) that was issued after a notice of application to appoint a receiver (but before the court heard the application), supported by an ex parte "jeopardy order" issued by the Federal Court of Canada under s. 225.1(1) of that Act, [70] the "requirement to pay" was considered to have been completely executed on the date of its issue, and thus took precedence over other creditors' claims. [71] [72] [73]
The trustee/receiver must first realize the amount of the proceeds from the property that is available for payment to the different classes of creditors, and different rules apply according to the type of proceeding. They are summarized as follows:
Type | Notice of intention, or proposal [74] [75] | Bankruptcy [76] | Receivership |
---|---|---|---|
Held in trust for another person | Exclude | Exclude | Exclude |
Exempt from execution or seizure | Exclude | Exclude | Exclude |
Income tax refunds for the fiscal year of the event | Add | Add | Add |
Such powers over property as are exercised for the insolvent person's own benefit | Add | Add | Add |
Garnishments for enforcing notices of assessment for income tax, CPP and EI liability | Exclude | Exclude | Exclude |
Withholding taxes deducted at source | Exclude | Exclude | Exclude |
Funds constituting a deemed trust for the Crown (other than for garnishments and withholding taxes deducted at source) | Exclude | ||
Third party's property in possession of bankrupt [77] | Exclude | ||
Goods shipped in 30 days prior to the event, and still unpaid [78] | Exclude | Exclude | Exclude |
Produce of farmer, fisherman or aquaculturist shipped in 15 days prior to the event, and still unpaid [79] | Exclude | Exclude | Exclude |
Copyrights and manuscripts for works not yet published [80] | Revert to owner | ||
Property transferred at undervalue [81] | Add | Add | Add |
The estate is then settled, using the priority of claims outlined in the BIA.
The BIA's definition of property is quite broad:
"property" means any type of property, whether situated in Canada or elsewhere, and includes money, goods, things in action, land and every description of property, whether real or personal, legal or equitable, as well as obligations, easements and every description of estate, interest and profit, present or future, vested or contingent, in, arising out of or incident to property;
As a consequence, the Supreme Court of Canada has ruled that direct payment clauses in contracts (allowing contractors to make payments to creditors of a bankrupt subcontractor) do not release the contractor from its obligations to the trustee of the estate. [82]
The resulting amount available from the estate is distributed to the creditors in the following order of priority (with each class/subclass paid in full before proceeding to the next):
Type | Description |
---|---|
"Super-priority" creditors |
|
Secured creditors | in order of priority, and to the extent that they have not realized on their security [86] |
Preferred creditors [87] |
|
Unsecured creditors | all remaining creditors (whose claims are not postponed below) subject to any subordination agreements that may be in place [88] |
Postponed claims [89] |
|
equity claims | settled only after all non-equity claims are settled in full [90] |
There are several important notes to consider in assessing the above priorities:
Every creditor must prove his claim and a creditor who does not prove his claim is not entitled to any distribution of the proceeds from bankrupt's estate. [95] The claim must be delivered to the trustee in bankruptcy and the trustee in bankruptcy must examine every proof of claim and can request further proof. The trustee may disallow, in whole or in part, any claim of right to a priority under the BIA or security. Generally, the test of proving the claim before the trustee in bankruptcy is very low, and a claim is proved unless it is too "remote and speculative". [96] The rationale for such a low test is to discharge as many claims as possible to allow the bankrupt to make a fresh start after the discharge.
Creditors also have the ability, with the approval of the court, to take over a cause of action that the trustee has decided not to pursue. [97]
Discharge does not extinguish claims that are provable in bankruptcy. It releases the debtor from such claims, and creditors cease to be able to enforce them. [98]
Some liabilities are not released upon discharge, including: [99]
Directors and parties related to the bankrupt may still be held personally liable for certain tax debts, [101] and, if a clearance certificate is not obtained from the tax authorities prior to discharge, directors' liability will subsequently resume. [102] Directors can also be held accountable for other liabilities arising from bankruptcy, regulatory and other statutory offences. [103]
In 2009, the Act was amended to reform the rules relating to setting aside any preferences, or transfers at undervalue, occurring before the initial bankruptcy event:
Section | Applies to | At arm's length | Not at arm's length | Additional remedies available [104] |
---|---|---|---|---|
S. 95 (preferences) [105] | A transfer of property made, a provision of services made, a charge on property made, a payment made, an obligation incurred or a judicial proceeding taken or suffered by an insolvent person where:
|
Applies to any payment made within three months of the initial event, and, in the absence of evidence to the contrary, it is presumed to have been made with intent | Applies to any payment made within 12 months of the initial event, and there is no need to prove intent | A trustee may also make a claim under provincial assignments and preferences legislation
[106] where:
|
S. 96 (transfers at undervalue) [107] | A disposition of property or provision of services, for which the consideration received by the debtor is either nil or conspicuously less than the fair market value of the consideration given by the debtor. | On application by the trustee, the court may declare a transfer void where:
|
The trustee need only prove to the court that:
|
A trustee usually makes a claim under provincial fraudulent conveyance legislation [108] at the same time as a s. 96 claim, in order to set aside the transfer. If valuable consideration has been given for the transfer, the trustee must prove that both the bankrupt and the transferee intended to defeat, hinder or delay the creditors. |
Recovery actions under ss. 95 and 96, as for other recovery actions with respect to collections, can only be initiated by the trustee, even when they may be of benefit only to a secured creditor (unless creditors seek court approval under s. 38 to pursue the matter directly). [109] [110]
The Act already empowered the court to inquire into circumstances where a bankrupt corporation had paid cash dividends or redeemed shares where the corporation was insolvent, or where the transactions made it so, during the 12 months prior to its bankruptcy. [111] In that regard,
S. 95(2) provides that, where a preference is given, the fact that it may have been given under pressure is irrelevant. However, the courts have ruled that a payment may withstand challenge by a trustee where it is made in furtherance of a reasonable business imperative. [115] [116]
The provincial Superior Courts have "such jurisdiction at law and in equity" as will enable them to exercise bankruptcy process under the Act. [117] The decisions of the court are enforceable in the courts of other Canadian provinces and all courts and the officers of all courts must act and co-operate in all bankruptcy matters. [118] Appeal from the court's orders lies to the provincial Court of Appeal where: [119]
Registrars of the provincial Superior Courts have significant powers in relation to procedural matters, unopposed proceedings and in other matters under the Act. [122]
The Office of the Superintendent of Bankruptcy ("OSB") is designed to supervise the administration of all estates and matters to which the Act applies. It grants licenses for the trustees in bankruptcy, inspects and/or investigates bankruptcy estates, reviews the conduct of the trustees in bankruptcy and the receivers, and examines trustee's accounts, receipts, disbursements and final statements. It has specific powers to intervene in any matter or proceeding in court as if the OSB were a party thereto, as well as to issue directives providing official interpretation of the bankruptcy process to the trustees in bankruptcy and the receivers. [123]
Trustees — either individuals or corporations — are licensed by the superintendent, and are appointed to administer an estate by virtue of the assignment, bankruptcy order or proposal that has been filed. By special resolution, the creditors of the estate may appoint or substitute another licensed trustee to assume the role. [124] A trustee is not bound to accept an appointment, but, once appointed, he must perform all duties that are legally required until his discharge or removal. [125] Otherwise, any licensed trustee can be appointed to act, subject to the following constraints:
The trustee acts as receiver for all the estate's property, and is entitled to see its books and records. [130] All moneys he receives must be deposited into a separate trust account. [131] When required, he is obliged to report on the estate's condition, moneys on hand, and property remaining unsold. [132] He is not obliged to continue the business of the bankrupt, where there is no good business case for doing so. [133] When he has completed the duties required of him for administering the estate, he shall apply to the court for a discharge, but any interested person may file an objection to having the discharge take place. [134]
All property of the bankruptcy vests in the trustee from the date of the bankruptcy, [135] and the trustee may register a bankruptcy order against any real property in which the bankrupt has any interest or estate. [136] The courts have held that trustees should clearly communicate to the bankrupt their intent to make a claim against the non-exempt equity in the bankrupt's property at the time of the assignment into bankruptcy. Failure to do so may result in:
The superintendent may undertake conservatory measures in order to protect an estate, as well as the rights of the creditors and debtors, in specified circumstances: [138]
At the first meeting of the creditors, up to five individuals may be appointed to be inspectors of the estate (except where the creditors decide that that is not necessary). [139] No inspector may be appointed if he is a party to any contested action or proceeding against the estate. Where the value of an individual debtor's property is under $15,000, [140] inspectors are not appointed (except where the creditors decide otherwise). [141]
The trustee is required to obtain the inspectors' permission before carrying out many of his responsibilities, such as the sale of property of the estate, the institution or defending of actions relating to the property of the bankrupt, settling any debts owing to the bankrupt and exercising trustee's discretion in retaining and assigning bankrupt's contracts. The inspectors must give their approval to the final statement of receipts and disbursements and trustee's fees.
Inspectors have a fiduciary duty to the creditors and should be impartial though acting in their interest. They should supervise the trustee's compliance with the Act and the superintendent's directives, and may apply for the removal of the trustee. [142]
The receiver must do what "practicality demands" to preserve the assets [143] [144] and must not go beyond what is necessary in the circumstances. [145]
The court may appoint an interim receiver:
In the first case, the applicant must give an undertaking with respect to the debtor's legal rights, and to damages in the event of the application being dismissed. The interim receiver can take conservatory measures and dispose of perishable property in order to comply with the order of the court, but the receiver cannot otherwise unduly interfere with the bankrupt in the carrying on of the debtor's business.
In the latter two cases, the court can only make the appointment if it is shown that it is necessary for the protection of the debtor's estate, or in the interest of the creditor(s).
The courts have set out the following factors [149] to be considered in exercising discretion on whether to appoint an interim receiver: