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Federal Law–Civil Law Harmonization Act, No. 2 (S.C. 2004, c. 25)

Assented to 2004-12-15

PART 1AMENDMENTS TO CERTAIN ACTS

R.S., c. B-3; 1992, c. 27, s. 2Bankruptcy and Insolvency Act

Marginal note:1992, c. 27, s. 8

11. Subsection 11(2) of the French version of the Act is replaced by the following:

  • Marginal note:Frais

    (2) Nonobstant l’article 136, tout recouvrement effectué à la suite d’enquêtes ou d’investigations que le surintendant a effectuées ou fait effectuer en conformité avec l’article 10, est appliqué au remboursement des frais que le surintendant a engagés à ce sujet, non ordinairement compris dans les frais de son bureau, et le solde qui subsiste par la suite sur le montant de ce recouvrement est placé à la disposition des créanciers du débiteur.

Marginal note:1997, c. 12, s. 8

12. Subsection 13.2(7) of the Act is replaced by the following:

  • Marginal note:Conditions

    (7) If a licence ceases to be valid by virtue of subsection (3) or is suspended or cancelled under subsection (5), the Superintendent may impose on the trustee any requirements that the Superintendent considers appropriate, including a requirement that the trustee provide security for the protection of an estate.

Marginal note:1992, c. 27, s. 9(1); 1997, c. 12, s. 9(F)

  • 13. (1) Subparagraph 13.3(1)(a)(iv) of the English version of the Act is replaced by the following:

    • (iv) the auditor, accountant or legal counsel, or a partner or an employee of the auditor, accountant or legal counsel, of the debtor; or

  • Marginal note:1992, c. 27, s. 9(1)

    (2) Subparagraphs 13.3(1)(b)(i) and (ii) of the Act are replaced by the following:

    • (i) the trustee under a trust indenture issued by the debtor or any person related to the debtor, or the holder of a power of attorney under an act constituting a hypothec within the meaning of the Civil Code of Québec that is granted by the debtor or any person related to the debtor, or

    • (ii) related to the trustee, or the holder of a power of attorney, referred to in subparagraph (i).

Marginal note:1997, c. 12, s. 8

14. Subsection 13.4(1) of the English version of the Act is replaced by the following:

Marginal note:Trustee may act for secured creditor on certain conditions

  • 13.4 (1) No trustee shall, while acting as the trustee of an estate, act for or assist a secured creditor of the estate to assert any claim against the estate or to realize or otherwise deal with the security that the secured creditor holds, unless the trustee has obtained a written opinion of a legal counsel who does not act for the secured creditor that the security is valid and enforceable as against the estate.

Marginal note:1992, c. 27, s. 9(1)

15. Section 14 of the Act is replaced by the following:

Marginal note:Appointment of trustee by creditors

14. The creditors may, at any meeting by special resolution, appoint or substitute another licensed trustee for the trustee named in an assignment, a bankruptcy order or a proposal, or otherwise appointed or substituted.

Marginal note:1992, c. 27, s. 9(1)

  • 16. (1) Subsection 14.06(1) of the Act is replaced by the following:

    Marginal note:No trustee is bound to act

    • 14.06 (1) No trustee is bound to assume the duties of trustee in matters relating to assignments, bankruptcy orders or proposals, but having accepted an appointment in relation to those matters the trustee shall, until discharged or another trustee is appointed in the trustee’s stead, perform the duties required of a trustee under this Act.

  • Marginal note:1997, c. 12, s. 15(1)

    (2) Paragraph 14.06(2)(b) of the Act is replaced by the following:

    • (b) after the trustee’s appointment unless it is established that the condition arose or the damage occurred as a result of the trustee’s gross negligence or wilful misconduct or, in the Province of Quebec, the trustee’s gross or intentional fault.

  • Marginal note:1997, c. 12, s. 15(1)

    (3) Subparagraph 14.06(4)(a)(ii) of the Act is replaced by the following:

    • (ii) on notice to the person who issued the order, abandons, disposes of or otherwise releases any interest in any real property, or any right in any immovable, affected by the condition or damage;

  • Marginal note:1997, c. 12, s. 15(1)

    (4) Paragraph 14.06(4)(c) of the Act is replaced by the following:

    • (c) if the trustee had, before the order was made, abandoned or renounced or been divested of any interest in any real property, or any right in any immovable, affected by the condition or damage.

  • Marginal note:1997, c. 12, s. 15(1)

    (5) Subsections 14.06(6) to (8) of the Act are replaced by the following:

    • Marginal note:Costs for remedying not costs of administration

      (6) If the trustee has abandoned or renounced any interest in any real property, or any right in any immovable, affected by the environmental condition or environmental damage, claims for costs of remedying the condition or damage shall not rank as costs of administration.

    • Marginal note:Priority of claims

      (7) Any claim by Her Majesty in right of Canada or a province against the debtor in a bankruptcy, proposal or receivership for costs of remedying any environmental condition or environmental damage affecting real property or an immovable of the debtor is secured by security on the real property or immovable affected by the environmental condition or environmental damage and on any other real property or immovable of the debtor that is contiguous with that real property or immovable and that is related to the activity that caused the environmental condition or environmental dam­age, and the security

      • (a) is enforceable in accordance with the law of the jurisdiction in which the real property or immovable is located, in the same way as a mortgage, hypothec or other security on real property or immovables; and

      • (b) ranks above any other claim, right, charge or security against the property, despite any other provision of this Act or anything in any other federal or provincial law.

    • Marginal note:Claim for clean-up costs

      (8) Despite subsection 121(1), a claim against a debtor in a bankruptcy or proposal for the costs of remedying any environmental condition or environmental damage affecting real property or an immovable of the debtor shall be a provable claim, whether the condition arose or the damage occurred before or after the date of the filing of the proposal or the date of the bankruptcy.

Marginal note:1997, c. 12, s. 16

17. Section 15.1 of the French version of the Act is replaced by the following:

Marginal note:Déclaration

15.1 Le syndic est réputé être un fiduciaire pour l’application de la définition de fidu­ciaire à l’article 2 du Code criminel.

Marginal note:1994, c. 26, s. 7

  • 18. (1) Subsections 16(1) and (2) of the Act are replaced by the following:

    Marginal note:Security to be given by trustee

    • 16. (1) Every trustee duly appointed shall, as soon as they are appointed, give security in cash or by bond or suretyship of a guaranty company satisfactory to the official receiver for the due accounting for, the payment and the transfer of all property received by the trustee as trustee and for the due and faithful performance of the trustee’s duties.

    • Marginal note:Security to be given by trustee

      (2) The security required to be given under subsection (1) shall be given to the official receiver in favour of the creditors generally and may be enforced by any succeeding trustee or by any one of the creditors on behalf of all by direction of the court, and may be increased or reduced by the official receiver.

  • Marginal note:R.S., c. 31 (1st Supp.), s. 3

    (2) Subsection 16(3) of the English version of the Act is replaced by the following:

    • Marginal note:Trustee to take possession and make inventory

      (3) The trustee shall, as soon as possible, take possession of the deeds, books, records and documents and all property of the bankrupt and make an inventory, and for the purpose of making an inventory the trustee is entitled to enter, subject to subsection (3.1), on any premises on which the deeds, books, records, documents or property of the bankrupt may be, even if they are in the possession of an executing officer, a secured creditor or other claimant to them.

19. Subsection 19(1) of the French version of the Act is replaced by the following:

Marginal note:Assistance juridique

  • 19. (1) Le syndic peut, antérieurement à la première assemblée des créanciers, obtenir un avis juridique et prendre les procédures judiciaires qu’il peut juger nécessaires pour recouvrer ou protéger les biens du failli.

Marginal note:1997, c. 12, s. 18

20. Subsection 20(1) of the Act is replaced by the following:

Marginal note:Divesting property by trustee

  • 20. (1) The trustee may, with the permission of the inspectors, divest all or any part of the trustee’s right, title or interest in any real property or immovable of the bankrupt by a notice of quit claim or renunciation by the trustee, and the official in charge of the land titles or registry office, as the case may be, where title to the real property or immovable is registered shall accept and register in the land register the notice when tendered for registration.

21. Subsection 26(3) of the Act is replaced by the following:

  • Marginal note:Records may be inspected

    (3) The trustee shall permit the books, records and documents referred to in subsection (2) to be inspected and copies of them made by the Superintendent, the bankrupt or any creditor or their representative at any reasonable time.

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