An Act to establish the Wage Earner Protection Program Act, to amend the Bankruptcy and Insolvency Act and the Companies’ Creditors Arrangement Act and to make consequential amendments to other Acts (S.C. 2005, c. 47)
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Assented to 2005-11-25
7. Subsection 6(1) of the English version of the Act is replaced by the following:
Marginal note:Outside investigations
6. (1) The Superintendent may engage any persons that the Superintendent considers advisable to conduct any inquiry or investigation or to take any other necessary action outside of the office of the Superintendent, and the cost and expenses of those persons shall, when certified by the Superintendent, be payable out of the appropriation for the office of the Superintendent.
8. (1) Subsection 10(1) of the Act is replaced by the following:
Marginal note:Investigations or inquiries by Superintendent
10. (1) If, on information supplied by an official receiver, trustee or other person, the Superintendent suspects, on reasonable grounds, that a person has, in connection with any estate or matter to which this Act applies, committed an offence under this or any other Act of Parliament, the Superintendent may, if it appears to the Superintendent that the alleged offence might not otherwise be investigated, make or cause to be made any inquiries or investigations that the Superintendent considers appropriate.
(2) Subsection 10(3) of the Act is replaced by the following:
Marginal note:Examination
(3) If, on the application of the Superintendent or the Superintendent’s authorized representative, a subpoena has been issued by the court, the Superintendent may, for the purpose of an inquiry or investigation under subsection (1), examine or cause to be examined under oath before the registrar of the court or other authorized person, the trustee, the debtor, any person who the Superintendent suspects, on reasonable grounds, has knowledge of the affairs of the debtor, or any person who is or has been an agent or a mandatary, or a clerk, a servant, an officer, a director or an employee of the debtor or the trustee, with respect to the conduct, dealings and transactions of the debtor, the causes of the bankruptcy or insolvency of the debtor, the disposition of the debtor’s property or the administration of the estate, and may order any person liable to be so examined to produce any books, records, data, including data in electronic form, documents or papers in the person’s possession or under the person’s control.
9. Subsection 13(3) of the Act is replaced by the following:
Marginal note:Non-eligibility
(3) The Superintendent may refuse to issue a licence to an applicant who is insolvent or has been found guilty of an indictable offence that, in the Superintendent’s opinion, is of a character that would impair the trustee’s capacity to perform his or her fiduciary duties.
10. Paragraph 13.2(5)(a) of the Act is replaced by the following:
(a) if the trustee has been found guilty of an indictable offence that, in the Superintendent’s opinion, is of a character that would impair the trustee’s capacity to perform his or her fiduciary duties;
11. (1) Section 13.3 of the Act is amended by adding the following after subsection (1):
Marginal note:Copy of application to Superintendent
(1.1) A trustee who applies for the permission of the court for the purposes of subsection (1) shall without delay send a copy of the application to the Superintendent.
(2) Paragraph 13.3(2)(b) of the Act is replaced by the following:
(b) the receiver, within the meaning of subsection 243(2), or the liquidator of the property of any person related to the debtor,
12. Subsection 13.4(1) 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 legal counsel who has not acted for the secured creditor in the previous two years and is not related to the trustee that the security is valid and enforceable as against the estate.
13. Sections 13.5 and 13.6 of the Act are replaced by the following:
Marginal note:Code of Ethics
13.5 A trustee shall comply with the prescribed Code of Ethics.
Marginal note:Persons disqualified from working for trustee
13.6 A trustee shall not engage the services of a person
(a) whose trustee licence has been cancelled under paragraph 13.2(5)(a) or subsection 14.01(1); or
(b) who is the subject of a direction made by the Superintendent under paragraph 14.03(1)(d).
14. Subsection 14.01(1) of the Act is amended by striking out the word “and” at the end of paragraph (e), by adding the word “and” at the end of paragraph (f) and by adding the following after paragraph (f):
(g) require the trustee to do anything that the Superintendent considers appropriate and that the trustee has agreed to.
15. Subsection 14.02(1) of the Act is replaced by the following:
Marginal note:Notice to trustee
14.02 (1) Before deciding whether to exercise any of the powers referred to in subsection 14.01(1), the Superintendent shall send the trustee written notice of the powers that the Superintendent may exercise and the reasons why they may be exercised and afford the trustee a reasonable opportunity for a hearing.
Marginal note:Subpoena or summons
(1.1) The Superintendent may, for the purpose of the hearing, issue a subpoena or other request or summons, requiring and commanding any person named in it
(a) to appear at the time and place mentioned in it;
(b) to testify to all matters within his or her knowledge relative to the subject-matter of the investigation into the conduct of the trustee; and
(c) to bring and produce any books, records, data, including data in electronic form, documents or papers in the person’s possession or under the person’s control relative to the subject-matter of the investigation.
Marginal note:Effect throughout Canada
(1.2) A person may be summoned from any part of Canada by virtue of a subpoena, request or summons issued under subsection (1.1).
Marginal note:Fees and allowances
(1.3) Any person summoned under subsection (1.1) is entitled to receive the like fees and allowances for so doing as if summoned to attend before the Federal Court.
16. (1) The portion of subsection 14.03(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Conservatory measures
14.03 (1) Subject to subsection (2), the Superintendent may, for the protection of an estate, the rights of the creditors or the debtor,
(2) Paragraph 14.03(2)(b) of the Act is replaced by the following:
(b) the Superintendent makes or causes to be made any inquiry or investigation under paragraph 5(3)(e);
(3) Paragraph 14.03(2)(f) of the Act is replaced by the following:
(f) a trustee has been found guilty of an indictable offence that, in the Superintendent’s opinion, is of a character that would impair the trustee’s capacity to perform the trustee’s fiduciary duties, or has failed to comply with any of the conditions or limitations to which the trustee’s licence is subject; or
17. Subsections 14.06(1.1) and (1.2) of the Act are replaced by the following:
Marginal note:Application
(1.1) In subsections (1.2) to (6), a reference to a trustee means a trustee in a bankruptcy or proposal and includes
(a) an interim receiver;
(b) a receiver within the meaning of subsection 243(2); and
(c) any other person who has been lawfully appointed to take, or has lawfully taken, possession or control of any property of an insolvent person or a bankrupt that was acquired for, or is used in relation to, a business carried on by the insolvent person or bankrupt.
Marginal note:Non-liability in respect of certain matters
(1.2) Despite anything in any federal or provincial law, if a trustee carries on in that position the business of the debtor or continues the employment of the debtor’s employees, the trustee is not by reason of that fact personally liable in respect of any claim against the debtor or related to a requirement imposed on the debtor to pay an amount if the claim is in relation to a debt or liability, present or future, to which the debtor is subject on the day on which the trustee is appointed.
18. Subsection 19(3) of the Act is repealed.
19. Section 21 of the Act is replaced by the following:
Marginal note:Verifying bankrupt’s statement of affairs
21. The trustee shall verify the bankrupt’s statement of affairs referred to in paragraph 158(d).
20. (1) Subsection 25(1) of the Act is replaced by the following:
Marginal note:Trust account
25. (1) When acting under the authority of this Act, a trustee shall, without delay, deposit in a bank all funds received for an estate in a separate trust account for each estate.
(2) Subsections 25(1.1) to (1.3) of the English version of the Act are replaced by the following:
Marginal note:Other deposit-taking institutions must be insured
(1.1) The trustee may deposit the funds in a deposit-taking institution, other than a bank as defined in section 2, only if deposits held by that institution are insured or guaranteed under a provincial or federal enactment that provides depositors with protection against the loss of funds on deposit with that institution.
Marginal note:Foreign funds
(1.2) If the funds are situated in a country other than Canada, the trustee may, if authorized by the Superintendent, deposit them in a financial institution in that country that is similar to a bank.
Marginal note:Permission needed for certain acts
(1.3) The trustee shall not withdraw any funds from the trust account of an estate without the permission in writing of the inspectors or, on application, the court, except for the payment of dividends and charges incidental to the administration of the estate.
(3) Section 25 of the Act is amended by adding the following after subsection (1.3):
Marginal note:Investments in government securities
(1.4) A trustee may, with the permission of the court, invest the funds in short-term securities of the Government of Canada or the government of a province held in trust for the estate.
(4) Subsection 25(3) of the Act is replaced by the following:
Marginal note:Not in private account
(3) The trustee shall not deposit any funds received by the trustee when acting under the authority of this Act in any banking account kept by the trustee for the trustee’s personal use.
- Date modified: