Excise Act, 2001 (S.C. 2002, c. 22)

Bankruptcies and Corporate Reorganizations

Marginal note:Definitions

• 212. (1) The definitions in this subsection apply in this section.

  “bankrupt”

  « failli »

  “bankrupt” has the same meaning as in subsection 2(1) of the Bankruptcy and Insolvency Act.

  “business”

  « entreprise »

  “business” includes a part of a business.

  “receiver”

  « séquestre »

  “receiver” means a person who

  • (a) under the authority of a debenture, bond or other debt security, of a court order or of an Act of Parliament or of the legislature of a province, is empowered to operate or manage a business or a property of another person;

  • (b) is appointed by a trustee under a trust deed in respect of a debt security to exercise the authority of the trustee to manage or operate a business or a property of the debtor under the debt security;

  • (c) is appointed by a bank or an authorized foreign bank, within the meaning of section 2 of the Bank Act, to act as an agent of the bank in the exercise of the authority of the bank under subsection 426(3) of that Act in respect of property of another person;

  • (d) is appointed as a liquidator to liquidate the assets of a corporation or to wind up the affairs of a corporation; or

  • (e) is appointed as a committee, guardian or curator with the authority to manage and care for the affairs and assets of an individual who is incapable of managing those affairs and assets.

  It includes a person who is appointed to exercise the authority of a creditor under a debenture, bond or other debt security to operate or manage a business or a property of another person, but, if a person is appointed to exercise the authority of a creditor under a debenture, bond or other debt security to operate or manage a business or a property of another person, it does not include that creditor.

  “relevant assets”

  « actif pertinent »

  “relevant assets” of a receiver means

  • (a) if the receiver’s authority relates to all the properties, businesses, affairs and assets of a person, all those properties, businesses, affairs and assets; and

  • (b) if the receiver’s authority relates to only part of the properties, businesses, affairs or assets of a person, that part of the properties, businesses, affairs or assets.

  “representative”

  « représentant »

  “representative” means a person, other than a trustee in bankruptcy or a receiver, who is administering, winding up, controlling or otherwise dealing with any property, business or estate.

• Marginal note:Trustee’s obligations

  (2) For the purposes of this Act, if on a particular day a person becomes a bankrupt,

  • (a) the trustee in bankruptcy, and not the person, is liable for the payment of any duty, interest or other amount (other than an amount that relates solely to activities in which the person begins to engage on or after the particular day and to which the bankruptcy does not relate) that becomes payable by the person under this Act during the period beginning on the day immediately after the day on which the trustee became the trustee in bankruptcy of the person and ending on the day on which the discharge of the trustee is granted under the Bankruptcy and Insolvency Act, except that

    • (i) the trustee is liable for the payment of any duty, interest or other amount that became payable by the person after the particular day in respect of fiscal months that ended on or before the particular day, or of any duty, interest or other amount that became payable by the person after the particular day, only to the extent of the property of the person in possession of the trustee available to satisfy the liability,

    • (ii) the trustee is not liable for the payment of any duty, interest or other amount for which a receiver is liable under subsection (3), and

    • (iii) the payment by the person of an amount in respect of the liability shall discharge the liability of the trustee to the extent of that amount;

  • (b) if, on the particular day the person is licensed or registered under this Act, the licence or registration continues in relation to the activities of the person to which the bankruptcy relates as though the trustee in bankruptcy were the licensee or registrant in respect of those activities and ceases to apply to the activities of the person in which the person begins to engage on or after the particular day and to which the bankruptcy does not relate;

  • (c) the fiscal month of the person begins and ends on the day on which it would have begun and ended if the bankruptcy had not occurred, except that

    • (i) the fiscal month of the person during which the person becomes a bankrupt shall end on the particular day and a new fiscal month of the person in relation to the activities of the person to which the bankruptcy relates shall begin on the day immediately after the particular day, and

    • (ii) the fiscal month of the person, in relation to the activities of the person to which the bankruptcy relates, during which the trustee in bankruptcy is discharged under the Bankruptcy and Insolvency Act shall end on the day on which the discharge is granted;

  • (d) subject to paragraph (f), the trustee in bankruptcy shall file with the Minister in the prescribed form and manner all returns in respect of the activities of the person to which the bankruptcy relates for the fiscal months of the person ending in the period beginning on the day immediately after the particular day and ending on the day on which the discharge of the trustee is granted under the Bankruptcy and Insolvency Act and that are required under this Act to be filed by the person, as if those activities were the only activities of the person;

  • (e) subject to paragraph (f), if the person has not on or before the particular day filed a return required under this Act to be filed by the person for a fiscal month of the person ending on or before the particular day, the trustee in bankruptcy shall, unless the Minister waives in writing the requirement for the trustee to file the return, file with the Minister in the prescribed form and manner a return for that fiscal month of the person; and

  • (f) if there is a receiver with authority in respect of any business, property, affairs or assets of the person, the trustee in bankruptcy is not required to include in any return any information that the receiver is required under subsection (3) to include in a return.

• Marginal note:Receiver’s obligations

  (3) For the purposes of this Act, if on a particular day a receiver is vested with authority to manage, operate, liquidate or wind up any business or property, or to manage and care for the affairs and assets, of a person,

  • (a) if the relevant assets of the receiver are a part and not all of the person’s businesses, properties, affairs or assets, the relevant assets of the receiver shall be deemed to be, throughout the period during which the receiver is acting as receiver of the person, separate from the remainder of the businesses, properties, affairs or assets of the person as though the relevant assets were businesses, properties, affairs or assets, as the case may be, of a separate person;

  • (b) the person and the receiver are jointly and severally or solidarily liable for the payment of any duty, interest or other amount that becomes payable by the person under this Act before or during the period during which the receiver is acting as receiver of the person to the extent that the duty, interest or other amount can reasonably be considered to relate to the relevant assets of the receiver or to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person at the time the duty, interest or other amount became payable except that

    • (i) the receiver is liable for the payment of any duty, interest or other amount that became payable before that period only to the extent of the property of the person in possession or under the control and management of the receiver after

      • (A) satisfying the claims of creditors whose claims ranked, on the particular day, in priority to the claim of the Crown in respect of the duty, interest or other amount, and

      • (B) paying any amounts that the receiver is required to pay to a trustee in bankruptcy of the person,

    • (ii) the person is not liable for the payment of any duty, interest or other amount payable by the receiver, and

    • (iii) the payment by the person or the receiver of an amount in respect of the duty, interest or other amount shall discharge the joint and several or solidary liability to the extent of that amount;

  • (c) the fiscal month of the person begins and ends on the day on which it would have begun and ended if the vesting had not occurred, except that

    • (i) the fiscal month of the person, in relation to the relevant assets of the receiver, during which the receiver begins to act as receiver of the person, shall end on the particular day and a new fiscal month of the person in relation to the relevant assets shall begin on the day immediately after the particular day, and

    • (ii) the fiscal month of the person, in relation to the relevant assets, during which the receiver ceases to act as receiver of the person, shall end on the day on which the receiver ceases to act as receiver of the person;

  • (d) the receiver shall file with the Minister in the prescribed form and manner all returns in respect of the relevant assets of the receiver for fiscal months ending in the period during which the receiver is acting as receiver and that are required under this Act to be made by the person, as if the relevant assets were the only businesses, properties, affairs and assets of the person; and

  • (e) if the person has not on or before the particular day filed a return required under this Act to be filed by the person for a fiscal month of the person ending on or before the particular day, the receiver shall, unless the Minister waives in writing the requirement for the receiver to file the return, file with the Minister in the prescribed form and manner a return for that fiscal month that relates to the businesses, properties, affairs or assets of the person that would have been the relevant assets of the receiver if the receiver had been acting as receiver of the person during that fiscal month.

• Marginal note:Certificates for receivers and representatives

  (4) Every receiver and representative who controls property of another person who is required to pay any duty, interest or other amount under this Act shall, before distributing the property to any person, obtain a certificate from the Minister certifying that the following amounts have been paid or that security for the payment of them has, in accordance with this Act, been accepted by the Minister:

  • (a) all duty, interest and other amounts that are payable by the other person under this Act in respect of the fiscal month during which the distribution is made, or any previous fiscal month; and

  • (b) all duty, interest and other amounts that are, or can reasonably be expected to become, payable under this Act by the representative or receiver in that capacity in respect of the fiscal month during which the distribution is made, or any previous fiscal month.

• Marginal note:Liability for failure to obtain certificate

  (5) Any receiver or representative who distributes property without obtaining a certificate in respect of the duty, interest or other amounts referred to in subsection (4) is personally liable for the payment of those amounts to the extent of the value of the property so distributed.