AMENDMENTS TO THE BANKRUPTCY AND INSOLVENCY ACT

• 2. (1) The definition “settlement” in section 2 of the Bankruptcy and Insolvency Act is repealed.

• (2) The definition localité d’un débiteur in section 2 of the French version of the Act is repealed.

• (3) The definitions “court”, “creditor”, and “person” in section 2 of the Act are replaced by the following:

  “court”

  « tribunal »

  “court”, except in paragraphs 178(1)(a) and (a.1) and sections 204.1 to 204.3 , means a court referred to in subsections 183(1) and (1.1) or a judge of that court, and includes a registrar when exercising the powers of the court conferred on a registrar under this Act;

  “creditor”

  « créancier »

  “creditor” means a person having a claim provable as a claim under this Act;

  “person”

  « personne »

  “person” includes a partnership, an unincorporated association, a corporation, a cooperative society, an organization or an income trust, the successors of a partnership, of an association, of a corporation, of a society, of an organization or of an income trust, and the heirs, executors, liquidators of the succession, administrators or other legal representative of a person;

• (4) The definition “locality of a debtor” in section 2 of the English version of the Act is replaced by the following:

  “locality of a debtor”

  « localité »

  “locality of a debtor” means the principal place

  • (a) where the debtor has carried on business during the year immediately preceding the date of the initial bankruptcy event,

  • (b) where the debtor has resided during the year immediately preceding the date of the initial bankruptcy event, or

  • (c) in cases not coming within paragraph (a) or (b), where the greater portion of the property of the debtor is situated;

• (5) Section 2 of the Act is amended by adding the following in alphabetical order:

  “bargaining agent”

  « agent négociateur »

  “bargaining agent” means any trade union that has entered into a collective agreement on behalf of the employees of a person;

  “collective agreement”

  « convention collective »

  “collective agreement”, in relation to an insolvent person, means a collective agreement within the meaning of the jurisdiction governing collective bargaining between the insolvent person and a bargaining agent;

  “current assets”

  « actif à court terme »

  “current assets” means unrestricted cash, or any other asset that, in the normal course of operations, is expected to be converted into cash or consumed in the production of income within one year or within the normal operating cycle when it is longer than a year;

  “date of the bankruptcy”

  « date de la faillite »

  “date of the bankruptcy”, in respect of a person, means the date of

  • (a) the granting of a bankruptcy order against the person,

  • (b) the filing or making of an assignment by or in respect of the person, or

  • (c) the event that causes an assignment by the person to be deemed;

  “director”

  « administra- teur »

  “director” includes any individual, however designated, acting in any capacity that is similar to that of a director of a corporation;

  “income trust”

  « fiducie de revenu »

  “income trust” means a trust

  • (a) that has assets in Canada, and

  • (b) the units of which are traded on a prescribed stock exchange;

  “time of the bankruptcy”

  « moment de la faillite »

  “time of the bankruptcy”, in respect of a person, means the time of

  • (a) the granting of a bankruptcy order against the person,

  • (b) the filing of an assignment by or in respect of the person, or

  • (c) the event that causes an assignment by the person to be deemed;

  “transfer at undervalue”

  « opération sous-évaluée »

  “transfer at undervalue” means a transaction in which the consideration received by a person is conspicuously less than the fair market value of the property or services sold or disposed of by the person in the transaction;

• (6) Section 2 of the French version of the Act is amended by adding the following in alphabetical order:

  « localité »

  “locality of a debtor”

  localité En parlant d’un débiteur, le lieu principal où, selon le cas :

  • a) il a exercé ses activités au cours de l’année précédant l’ouverture de sa faillite;

  • b) il a résidé au cours de l’année précédant l’ouverture de sa faillite;

  • c) se trouve la plus grande partie de ses biens, dans les cas non visés aux alinéas a) ou b).

3. Section 2.1 of the Act is replaced by the following:

4. Section 3 of the Act is repealed.

• 5. (1) Subsection 4(1) of the Act is amended by adding the following in alphabetical order:

  “entity”

  « entité »

  “entity” means a person other than an individual;

• (2) Paragraphs 4(2)(b) and (c) of the Act are replaced by the following:

  • (b) an entity and

    • (i) a person who controls the entity, if it is controlled by one person,

    • (ii) a person who is a member of a related group that controls the entity, or

    • (iii) any person connected in the manner set out in paragraph (a) to a person described in subparagraph (i) or (ii); or

  • (c) two entities

    • (i) both controlled by the same person or group of persons,

    • (ii) each of which is controlled by one person and the person who controls one of the entities is related to the person who controls the other entity,

    • (iii) one of which is controlled by one person and that person is related to any member of a related group that controls the other entity,

    • (iv) one of which is controlled by one person and that person is related to each member of an unrelated group that controls the other entity,

    • (v) one of which is controlled by a related group a member of which is related to each member of an unrelated group that controls the other entity, or

    • (vi) one of which is controlled by an unrelated group each member of which is related to at least one member of an unrelated group that controls the other entity.

• (3) Paragraphs 4(3)(a) to (d) of the Act are replaced by the following:

  • (a) if two entities are related to the same entity within the meaning of subsection (2), they are deemed to be related to each other;

  • (b) if a related group is in a position to control an entity, it is deemed to be a related group that controls the entity whether or not it is part of a larger group by whom the entity is in fact controlled;

  • (c) a person who has a right under a contract, in equity or otherwise, either immediately or in the future and either absolutely or contingently, to, or to acquire, ownership interests, however designated, in an entity, or to control the voting rights in an entity, is, except when the contract provides that the right is not exercisable until the death of an individual designated in the contract, deemed to have the same position in relation to the control of the entity as if the person owned the ownership interests;

  • (d) if a person has ownership interests in two or more entities, the person is, as holder of any ownership interest in one of the entities, deemed to be related to himself or herself as holder of any ownership interest in each of the other entities;

• (4) Section 4 of the Act is amended by adding the following after subsection (3):

  • Marginal note:Question of fact

    (4) It is a question of fact whether persons not related to one another were at a particular time dealing with each other at arm’s length.

  • Marginal note:Presumption

    (5) Persons related to each other are deemed not to deal with each other at arm’s length while so related.

• 6. (1) Subsection 5(1) of the Act is replaced by the following:

  Marginal note:Appointment

  • 5. (1) The Governor in Council shall appoint a Superintendent of Bankruptcy to hold office during good behaviour for a term of not more than five years, but the Superintendent may be removed from office by the Governor in Council for cause. The Superintendent’s term may be renewed for one or more further terms.

  • Marginal note:Salary

    (1.1) The Superintendent shall be paid the salary that the Governor in Council may fix.

• (2) Subsection 5(3) of the Act is amended by adding the following after paragraph (a):

  • (b) monitor the conditions that led to a trustee being issued a licence to determine whether those conditions continue to exist after the licence has been issued and take the appropriate action if he or she determines that the conditions no longer exist;

• (3) Paragraph 5(3)(e) of the Act is replaced by the following:

  • (e) from time to time, make or cause to be made any inquiry or investigation of estates or other matters to which this Act applies, including the conduct of a trustee or a trustee acting as a receiver, within the meaning of subsection 243(2), or as an interim receiver, that the Superintendent considers appropriate, and for the purpose of the inquiry or investigation the Superintendent or any person appointed by the Superintendent for the purpose shall have access to and the right to examine and make copies of all books, records, data, including data in electronic form, documents and papers, that are relevant to an inquiry or investigation pertaining or relating to any estate or other matter to which this Act applies;

• (4) Subsection 5(4) of the Act is amended by striking out the word “and” at the end of paragraph (d) and by adding the following after paragraph (d):

  • (d.1) issue directives respecting the rules governing hearings for the purposes of section 14.02; and