An Act to amend the Bankruptcy and Insolvency Act, the Companies’ Creditors Arrangement Act, the Wage Earner Protection Program Act and chapter 47 of the Statutes of Canada, 2005 (S.C. 2007, c. 36)

Marginal note:Application

8. To receive a payment, an individual is to apply to the Minister in the manner and during the period provided for in the regulations.

Marginal note:Minister’s determination of eligibility

9. If the Minister determines that the applicant is eligible to receive a payment, the Minister shall make the payment.

Marginal note:Notification

10. The Minister is to inform the applicant of their eligibility or ineligibility to receive a payment.

REVIEW BY MINISTER

Marginal note:Request for review

11. An applicant who is informed under section 10 may request a review of their eligibility or ineligibility, as the case may be.

Marginal note:Review

12. The Minister may confirm, vary or rescind a determination of eligibility made under section 9. If the Minister varies the determination, the Minister shall make any payment resulting from the variation.

Marginal note:Review is final

13. Subject to the right of appeal under section 14, the Minister’s confirmation, variation or rescission, as the case may be, is final and may not be questioned or reviewed in any court.

APPEAL TO ADJUDICATOR

Marginal note:Appeal on question of law or jurisdiction

14. The applicant may appeal the decision made by the Minister under section 12 to an adjudicator only on a question of law or jurisdiction.

Marginal note:Appeal on the record

16. The appeal is to be an appeal on the record and no new evidence is admissible.

Marginal note:Adjudicator’s decision

17. The adjudicator may confirm, vary or rescind the decision made by the Minister under section 12. If the adjudicator varies the decision, the Minister shall make any payment resulting from the variation.

Marginal note:No review by certiorari, etc.

19. No order may be made to review, prohibit or restrain and no process entered or proceeding taken to question, review, prohibit or restrain in any court — whether by way of injunction, certiorari, prohibition, quo warranto or otherwise — an action of an adjudicator under this Act.

Marginal note:Decision is final

20. The adjudicator’s decision is final and may not be questioned or reviewed in any court.

ADMINISTRATION

Duties of Trustees and Receivers

Marginal note:General duties

• 21. (1) For the purposes of this Act, a trustee or a receiver, as the case may be, shall

  • (a) identify each individual who is owed wages that were earned during the six months immediately before the date of the bankruptcy or the first day on which there was a receiver in relation to the individual’s employer, as the case may be;

  • (b) determine the amount of wages owing to each individual in respect of those six months;

  • (c) inform each individual other than one who is in a class prescribed by regulation of the existence of the program established by section 4 and of the conditions under which payments may be made under this Act;

  • (d) provide the Minister and each individual other than one who is in a class prescribed by regulation with the information prescribed by regulation in relation to the individual and with the amount of wages owing to the individual in respect of those six months; and

  • (e) inform the Minister of when the trustee is discharged or the receiver completes their duties, as the case may be.

• Marginal note:Compliance with directions

  (2) A trustee or receiver shall comply with any directions of the Minister relating to the administration of this Act.

• Marginal note:Duty to assist

  (3) A person, other than one described in subsection (4), who has or has access to information described in paragraph (1)(d) shall, on request, provide it to the trustee or the receiver, as the case may be.

• Marginal note:Duty to assist — payroll contractors

  (4) In the case of a person who is dealing at arm’s length with and providing payroll services to a bankrupt or insolvent person, they shall provide a description of the information that they do not have access to, an estimate of the cost of providing the information that they have and an estimate of the cost of providing the information that they only have access to.

Marginal note:Fees and expenses

• 22. (1) The trustee’s or receiver’s fees and expenses, in relation to the performance of their duties under this Act, are to be paid out of the estate of the bankrupt employer or the property of the insolvent employer, as the case may be.

• Marginal note:Minister to pay fees and expenses

  (2) The Minister shall, in the circumstances prescribed by regulation, pay the fees or expenses that are prescribed by regulation.

Marginal note:Social Insurance Number

29. No person may knowingly use, communicate or allow to be communicated a Social Insurance Number that was obtained for a purpose related to an application for a payment under this Act except for the purpose of the administration or enforcement of this Act or the Income Tax Act.

Marginal note:Determination of overpayment

• 32. (1) If the Minister determines that an individual received a payment in an amount greater than the amount that they were eligible to receive, the Minister shall send them a notice

  • (a) informing them of the determination; and

  • (b) specifying the amount that they were not eligible to receive.

• Marginal note:Debt due to Her Majesty

  (2) The amount specified in the notice constitutes a debt due to Her Majesty in right of Canada and may be recovered by the Minister of National Revenue.

• Marginal note:Certificate of default

  (3) The amount of any debt referred to in subsection (2) that remains unpaid 30 days after the day on which the notice is sent may be certified by the Minister, and registration of the certificate in the Federal Court has the same effect as a judgment of that Court for the amount specified in the certificate and all related registration costs.

Marginal note:Garnishment

33. If the Minister is of the opinion that a person is or is about to become liable to pay an amount to an individual who is indebted to Her Majesty under section 32, the Minister may, by written notice, order the person to pay to the Receiver General on account of the individual’s liability all or part of the amount otherwise payable to the individual.

Marginal note:No payment or partial payment

34. If the Minister determines that an individual did not receive all or part of a payment that they were eligible to receive, the Minister shall make a payment to them in an amount equal to the amount that they did not receive.

Marginal note:Subrogation

• 36. (1) If a payment is made under this Act to an individual in respect of unpaid wages, Her Majesty in right of Canada is, to the extent of the amount of the payment, subrogated to any rights the individual may have in respect of the unpaid wages against

  • (a) the bankrupt or insolvent employer; and

  • (b) if the bankrupt or insolvent employer is a corporation, a director of the corporation.

• Marginal note:Maintaining an action

  (2) For the purposes of subsection (1), Her Majesty in right of Canada may maintain an action in the name of the individual or Her Majesty in right of Canada.

Marginal note:Amount not assignable

37. An amount that is payable under this Act is not capable of being assigned, charged, attached, anticipated or given as security and any transaction appearing to do so is void or, in Quebec, null.

Offences and Penalties

Marginal note:Offences

• 38. (1) Every person commits an offence who

  • (a) makes a false or misleading entry, or omits to enter a material particular, in any record or book of account that contains information that supports an application under this Act;

  • (b) in relation to an application under this Act, makes a representation that the person knows to be false or misleading;

  • (c) in relation to an application under this Act, makes a declaration that the person knows to be false or misleading because of the nondisclosure of facts;

  • (d) being required under this Act to provide information, does not provide it or makes a representation that the person knows to be false or misleading;

  • (e) obtains a payment under this Act by false pretence;

  • (f) being the payee of any cheque issued as a payment under this Act, knowingly negotiates or attempts to negotiate it knowing that the person is not entitled to the payment or any part of the payment; or

  • (g) participates in, consents to or acquiesces in an act or omission mentioned in any of paragraphs (a) to (f).

• Marginal note:Trustees and receivers

  (2) Every person who fails to comply with any of the requirements of subsection 21(1), (3) or (4) commits an offence.

• Marginal note:Limitation of prosecutions

  (3) A prosecution for an offence under subsection (1) or (2) may be commenced at any time within six years after the day on which the subject matter of the prosecution arose.

• Marginal note:Due diligence

  (4) No person may be convicted of an offence under subsection (2) if the person establishes that they exercised due diligence to prevent the commission of the offence.

Marginal note:Obstruction

• 39. (1) Every person commits an offence who delays or obstructs a person in the exercise of their powers or the performance of their duties under this Act.

• Marginal note:Limitation of prosecutions

  (2) A prosecution for an offence under subsection (1) may be commenced at any time within two years after the day on which the subject matter of the prosecution arose.