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)
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Assented to 2007-12-14
73. Section 26 of the Act, as enacted by section 131 of chapter 47 of the Statutes of Canada, 2005, is amended by adding the following after subsection (2):
Marginal note:Agreement to provide compilation
(3) The Superintendent of Bankruptcy may enter into an agreement to provide a compilation of all or part of the information that is contained in the public record.
74. (1) Subsection 29(2) of the Act, as enacted by section 131 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Rights
(2) For the purpose of the inquiry or investigation, the Superintendent of Bankruptcy or any person whom he or she appoints for the purpose
(a) shall have access to and the right to examine and make copies of the books, records, data, documents or papers — including those in electronic form — in the possession or under the control of a monitor under this Act; and
(b) may, with the leave of the court granted on an ex parte application, examine the books, records, data, documents or papers — including those in electronic form — relating to any compromise or arrangement in respect of which this Act applies that are in the possession or under the control of any other person designated in the order granting the leave, and for that purpose may under a warrant from the court enter and search any premises.
(2) Subsection 29(3) of the French version of the Act, as enacted by section 131 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Personnel
(3) Le surintendant des faillites peut retenir les services des experts ou autres personnes et du personnel administratif dont il estime le concours utile à l’investigation ou l’enquête et fixer leurs fonctions et leurs conditions d’emploi. La rémunération et les indemnités dues à ces personnes sont, une fois certifiées par le surintendant, imputables sur les crédits affectés à son bureau.
75. (1) Subsection 30(3) of the Act, as enacted by section 131 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Summons
(3) The Superintendent of Bankruptcy may, for the purpose of the hearing, issue a summons requiring the person named in it
(a) to appear at the time and place mentioned in it;
(b) to testify to all matters within their knowledge relative to the subject matter of the inquiry or investigation into the conduct of the monitor; and
(c) to bring and produce any books, records, data, documents or papers — including those in electronic form — in their possession or under their control relative to the subject matter of the inquiry or investigation.
(2) Subsection 30(4) of the English version of the Act, as enacted by section 131 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Effect throughout Canada
(4) A person may be summoned from any part of Canada by virtue of a summons issued under subsection (3).
76. Section 32 of the Act, as enacted by section 131 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Disclaimer or resiliation of agreements
32. (1) Subject to subsections (2) and (3), a debtor company may — on notice given in the prescribed form and manner to the other parties to the agreement and the monitor — disclaim or resiliate any agreement to which the company is a party on the day on which proceedings commence under this Act. The company may not give notice unless the monitor approves the proposed disclaimer or resiliation.
Marginal note:Court may prohibit disclaimer or resiliation
(2) Within 15 days after the day on which the company gives notice under subsection (1), a party to the agreement may, on notice to the other parties to the agreement and the monitor, apply to a court for an order that the agreement is not to be disclaimed or resiliated.
Marginal note:Court-ordered disclaimer or resiliation
(3) If the monitor does not approve the proposed disclaimer or resiliation, the company may, on notice to the other parties to the agreement and the monitor, apply to a court for an order that the agreement be disclaimed or resiliated.
Marginal note:Factors to be considered
(4) In deciding whether to make the order, the court is to consider, among other things,
(a) whether the monitor approved the proposed disclaimer or resiliation;
(b) whether the disclaimer or resiliation would enhance the prospects of a viable compromise or arrangement being made in respect of the company; and
(c) whether the disclaimer or resiliation would likely cause significant financial hardship to a party to the agreement.
Marginal note:Date of disclaimer or resiliation
(5) An agreement is disclaimed or resiliated
(a) if no application is made under subsection (2), on the day that is 30 days after the day on which the company gives notice under subsection (1);
(b) if the court dismisses the application made under subsection (2), on the day that is 30 days after the day on which the company gives notice under subsection (1) or on any later day fixed by the court; or
(c) if the court orders that the agreement is disclaimed or resiliated under subsection (3), on the day that is 30 days after the day on which the company gives notice or on any later day fixed by the court.
Marginal note:Intellectual property
(6) If the company has granted a right to use intellectual property to a party to an agreement, the disclaimer or resiliation does not affect the party’s right to use the intellectual property — including the party’s right to enforce an exclusive use — during the term of the agreement, including any period for which the party extends the agreement as of right, as long as the party continues to perform its obligations under the agreement in relation to the use of the intellectual property.
Marginal note:Loss related to disclaimer or resiliation
(7) If an agreement is disclaimed or resiliated, a party to the agreement who suffers a loss in relation to the disclaimer or resiliation is considered to have a provable claim.
Marginal note:Reasons for disclaimer or resiliation
(8) A company shall, on request by a party to the agreement, provide in writing the reasons for the proposed disclaimer or resiliation within five days after the day on which the party requests them.
Marginal note:Exceptions
(9) This section does not apply in respect of
(a) an eligible financial contract within the meaning of subsection 11.05(3);
(b) a collective agreement;
(c) a financing agreement if the company is the borrower; or
(d) a lease of real property or of an immovable if the company is the lessor.
77. Section 34 of the Act, as enacted by section 131 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Certain rights limited
34. (1) No person may terminate or amend, or claim an accelerated payment or forfeiture of the term under, any agreement, including a security agreement, with a debtor company by reason only that proceedings commenced under this Act or that the company is insolvent.
Marginal note:Lease
(2) If the agreement referred to in subsection (1) is a lease, the lessor may not terminate or amend the lease by reason only that proceedings commenced under this Act, that the company is insolvent or that the company has not paid rent in respect of any period before the commencement of those proceedings.
Marginal note:Public utilities
(3) No public utility may discontinue service to a company by reason only that proceedings commenced under this Act, that the company is insolvent or that the company has not paid for services rendered or goods provided before the commencement of those proceedings.
Marginal note:Certain acts not prevented
(4) Nothing in this section is to be construed as
(a) prohibiting a person from requiring payments to be made in cash for goods, services, use of leased property or other valuable consideration provided after the commencement of proceedings under this Act;
(b) requiring the further advance of money or credit; or
(c) preventing a lessor of aircraft objects under an agreement with the company from taking possession of the aircraft objects
(i) if, after proceedings commence under this Act, the company defaults in protecting or maintaining the aircraft objects in accordance with the agreement,
(ii) 60 days after the day on which proceedings commence under this Act unless, during that period, the company
(A) remedied the default of every other obligation under the agreement, other than a default constituted by the commencement of proceedings under this Act or the breach of a provision in the agreement relating to the company’s financial condition,
(B) agreed to perform the obligations under the agreement, other than an obligation not to become insolvent or an obligation relating to the company’s financial condition, until the proceedings under this Act end, and
(C) agreed to perform all of the obligations arising under the agreement after the proceedings under this Act end, or
(iii) if, during the period that begins on the expiry of the 60-day period and ends on the day on which proceedings under this Act end, the company defaults in performing an obligation under the agreement, other than an obligation not to become insolvent or an obligation relating to the company’s financial condition.
Marginal note:Provisions of section override agreement
(5) Any provision in an agreement that has the effect of providing for, or permitting, anything that, in substance, is contrary to this section is of no force or effect.
Marginal note:Powers of court
(6) On application by a party to an agreement or by a public utility, the court may declare that this section does not apply — or applies only to the extent declared by the court — if the applicant satisfies the court that the operation of this section would likely cause the applicant significant financial hardship.
Marginal note:Eligible financial contracts
(7) Subsection (1)
(a) does not apply in respect of an eligible financial contract within the meaning of subsection 11.05(3); and
(b) does not prevent a member of the Canadian Payments Association from ceasing to act as a clearing agent or group clearer for an insolvent person in accordance with the Canadian Payments Act or the by-laws or rules of that Association.
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