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
8. Paragraph 14.03(2)(b) of the French version of the Act, as enacted by subsection 16(2) of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
b) la tenue des investigations ou des enquêtes prévues à l’alinéa 5(3)e);
9. (1) Paragraph 14.06(1.1)(c) of the French version of the Act, as enacted by section 17 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
c) les autres personnes qui sont nommément habilitées à prendre — ou ont pris légalement — la possession ou la responsabilité d’un bien acquis ou utilisé par une personne insolvable ou un failli dans le cadre de ses affaires.
(2) Subsection 14.06(1.2) of the Act, as enacted by section 17 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:No personal liability in respect of matters before appointment
(1.2) Despite anything in federal or provincial law, if a trustee, in that position, carries on the business of a debtor or continues the employment of a debtor’s employees, the trustee is not by reason of that fact personally liable in respect of a liability, including one as a successor employer,
(a) that is in respect of the employees or former employees of the debtor or a predecessor of the debtor or in respect of a pension plan for the benefit of those employees; and
(b) that exists before the trustee is appointed or that is calculated by reference to a period before the appointment.
Marginal note:1997, c. 12, s. 15(1)
(3) Subsection 14.06(1.3) of the Act is replaced by the following:
Marginal note:Status of liability
(1.3) A liability referred to in subsection (1.2) is not to rank as costs of administration.
Marginal note:Liability of other successor employers
(1.4) Subsection (1.2) does not affect the liability of a successor employer other than the trustee.
10. Subsections 30(5) and (6) of the Act, as enacted by section 23 of chapter 47 of the Statutes of Canada, 2005, are replaced by the following:
Marginal note:Related persons
(5) For the purpose of subsection (4), in the case of a bankrupt other than an individual, a person who is related to the bankrupt includes
(a) a director or officer of the bankrupt;
(b) a person who has or has had, directly or indirectly, control in fact of the bankrupt; and
(c) a person who is related to a person described in paragraph (a) or (b).
Marginal note:Factors to be considered
(6) In deciding whether to grant the authorization, the court is to consider, among other things,
(a) whether the process leading to the proposed sale or disposition of the property was reasonable in the circumstances;
(b) the extent to which the creditors were consulted;
(c) the effects of the proposed sale or disposition on creditors and other interested parties;
(d) whether the consideration to be received for the property is reasonable and fair, taking into account the market value of the property;
(e) whether good faith efforts were made to sell or otherwise dispose of the property to persons who are not related to the bankrupt; and
(f) whether the consideration to be received is superior to the consideration that would be received under any other offer made in accordance with the process leading to the proposed sale or disposition of the property.
11. Subsection 36(1) of the French version of the Act, as enacted by section 28 of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Devoirs de l’ancien syndic en cas de substitution
36. (1) À la nomination d’un syndic substitué, le syndic qui l’a précédé soumet immédiatement ses comptes au tribunal et remet au syndic substitué tous les biens de l’actif, avec tous les livres, registres et documents du failli et ceux qui sont relatifs à l’administration de l’actif. Il lui remet également un état complet des recettes provenant des biens du failli ou d’autres sources, intérêts y compris, et de ses débours et dépenses, ainsi que de la rémunération qu’il réclame. L’état est accompagné d’un document contenant la description détaillée de tous les biens du failli qui n’ont pas été vendus ou réalisés, où sont indiqués, en plus de leur valeur, le motif pour lequel ils ne l’ont pas été, ainsi que la façon dont il en a été disposé.
Marginal note:1997, c. 12, s. 25(2)
12. Subsection 41(8.1) of the Act is replaced by the following:
Marginal note:Investigation not precluded
(8.1) Nothing in subsection (8) is to be construed as preventing an inquiry, investigation or proceeding in respect of a trustee under subsection 14.01(1).
13. Section 46 of the Act is amended by adding the following after subsection (2):
Marginal note:Place of filing
(3) An application under subsection (1) is to be filed in a court having jurisdiction in the judicial district of the locality of the debtor.
14. (1) Subsection 47(1) of the Act, as enacted by subsection 30(1) of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Appointment of interim receiver
47. (1) If the court is satisfied that a notice is about to be sent or was sent under subsection 244(1), it may, subject to subsection (3), appoint a trustee as interim receiver of all or any part of the debtor’s property that is subject to the security to which the notice relates until the earliest of
(a) the taking of possession by a receiver, within the meaning of subsection 243(2), of the debtor’s property over which the interim receiver was appointed,
(b) the taking of possession by a trustee of the debtor’s property over which the interim receiver was appointed, and
(c) the expiry of 30 days after the day on which the interim receiver was appointed or of any period specified by the court.
Marginal note:1992, c. 27, s. 16(1)
(2) Subsection 47(2) of the Act is amended by striking out the word “and” at the end of paragraph (b) and by replacing paragraph (c) with the following:
(c) take conservatory measures; and
(d) summarily dispose of property that is perishable or likely to depreciate rapidly in value.
(3) Section 47 of the Act is amended by adding the following after subsection (3):
Marginal note:Place of filing
(4) An application under subsection (1) is to be filed in a court having jurisdiction in the judicial district of the locality of the debtor.
15. (1) Subsection 47.1(1.1) of the Act, as enacted by subsection 31(2) of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
Marginal note:Duration of appointment
(1.1) The appointment expires on the earliest of
(a) the taking of possession by a receiver, within the meaning of subsection 243(2), of the debtor’s property over which the interim receiver was appointed,
(b) the taking of possession by a trustee of the debtor’s property over which the interim receiver was appointed, and
(c) court approval of the proposal.
Marginal note:1992, c. 27, s. 16(1)
(2) Subsection 47.1(2) of the Act is amended by striking out the word “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:
(d) take conservatory measures; and
(e) summarily dispose of property that is perishable or likely to depreciate rapidly in value.
(3) Section 47.1 of the Act is amended by adding the following after subsection (3):
Marginal note:Place of filing
(4) An application under subsection (1) is to be filed in a court having jurisdiction in the judicial district of the locality of the debtor.
16. (1) Paragraph 50(6)(a) of the Act, as enacted by subsection 34(2) of chapter 47 of the Statutes of Canada, 2005, is replaced by the following:
(a) a statement — or a revised cash-flow statement if a cash-flow statement had previously been filed under subsection 50.4(2) in respect of that insolvent person — (in this section referred to as a “cash-flow statement”) indicating the projected cash-flow of the insolvent person on at least a monthly basis, prepared by the person making the proposal, reviewed for its reasonableness by the trustee and signed by the trustee and the person making the proposal;
Marginal note:1992, c. 27, s. 18(4)
(2) Paragraph 50(10)(a) of the Act is replaced by the following:
(a) file a report on the state of the insolvent person’s business and financial affairs — containing the prescribed information, if any —
(i) with the official receiver without delay after ascertaining a material adverse change in the insolvent person’s projected cash-flow or financial circumstances, and
(ii) with the court at any time that the court may order; and
Marginal note:1992, c. 27, s. 18(4)
(3) Paragraph 50(10)(b) of the Act is replaced by the following:
(b) send, in the prescribed manner, a report on the state of the insolvent person’s business and financial affairs — containing the trustee’s opinion as to the reasonableness of a decision, if any, to include in a proposal a provision that sections 95 to 101 do not apply in respect of the proposal and containing the prescribed information, if any — to the creditors and the official receiver at least 10 days before the day on which the meeting of creditors referred to in subsection 51(1) is to be held.
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