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Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3)

Act current to 2022-11-16 and last amended on 2022-09-01. Previous Versions

PART IIIProposals (continued)

DIVISION IGeneral Scheme for Proposals (continued)

Marginal note:Priority of claims

  •  (1) No proposal shall be approved by the court that does not provide for the payment in priority to other claims of all claims directed to be so paid in the distribution of the property of a debtor and for the payment of all proper fees and expenses of the trustee on and incidental to the proceedings arising out of the proposal or in the bankruptcy.

  • Marginal note:Certain Crown claims

    (1.1) Unless Her Majesty consents, no proposal shall be approved by the court that does not provide for the payment in full to Her Majesty in right of Canada or a province, within six months after court approval of the proposal, of all amounts that were outstanding at the time of the filing of the notice of intention or of the proposal, if no notice of intention was filed, and are of a kind that could be subject to a demand under

    • (a) subsection 224(1.2) of the Income Tax Act;

    • (b) any provision of the Canada Pension Plan or of the Employment Insurance Act that refers to subsection 224(1.2) of the Income Tax Act and provides for the collection of a contribution, as defined in the Canada Pension Plan, an employee’s premium, or employer’s premium, as defined in the Employment Insurance Act, or a premium under Part VII.1 of that Act, and of any related interest, penalties or other amounts; or

    • (c) any provision of provincial legislation that has a similar purpose to subsection 224(1.2) of the Income Tax Act, or that refers to that subsection, to the extent that it provides for the collection of a sum, and of any related interest, penalties or other amounts, where the sum

      • (i) has been withheld or deducted by a person from a payment to another person and is in respect of a tax similar in nature to the income tax imposed on individuals under the Income Tax Act, or

      • (ii) is of the same nature as a contribution under the Canada Pension Plan if the province is a “province providing a comprehensive pension plan” as defined in subsection 3(1) of the Canada Pension Plan and the provincial legislation establishes a “provincial pension plan” as defined in that subsection.

  • Marginal note:Idem

    (1.2) No proposal shall be approved by the court if, at the time the court hears the application for approval, Her Majesty in right of Canada or a province satisfies the court that the debtor is in default on any remittance of an amount referred to in subsection (1.1) that became due after the filing

    • (a) of the notice of intention; or

    • (b) of the proposal, if no notice of intention was filed.

  • Marginal note:Proposals by employers

    (1.3) No proposal in respect of an employer shall be approved by the court unless

    • (a) it provides for payment to the employees and former employees, immediately after court approval of the proposal, of amounts at least equal to the amounts that they would be qualified to receive under paragraph 136(1)(d) if the employer became bankrupt on the date of the filing of the notice of intention, or proposal if no notice of intention was filed, as well as wages, salaries, commissions or compensation for services rendered after that date and before the court approval of the proposal, together with, in the case of travelling salespersons, disbursements properly incurred by them in and about the bankrupt’s business during the same period; and

    • (b) the court is satisfied that the employer can and will make the payments as required under paragraph (a).

  • Marginal note:Voting on proposal

    (1.4) For the purpose of voting on any question relating to a proposal in respect of an employer, no person has a claim for an amount referred to in paragraph (1.3)(a).

  • Marginal note:Proposals by employers — prescribed pension plans

    (1.5) No proposal in respect of an employer who participates in a prescribed pension plan for the benefit of its employees shall be approved by the court unless

    • (a) the proposal provides for payment of the following amounts that are unpaid to the fund established for the purpose of the pension plan:

      • (i) an amount equal to the sum of all amounts that were deducted from the employees’ remuneration for payment to the fund,

      • (ii) if the prescribed pension plan is regulated by an Act of Parliament,

        • (A) an amount equal to the normal cost, within the meaning of subsection 2(1) of the Pension Benefits Standards Regulations, 1985, that was required to be paid by the employer to the fund, and

        • (B) an amount equal to the sum of all amounts that were required to be paid by the employer to the fund under a defined contribution provision, within the meaning of subsection 2(1) of the Pension Benefits Standards Act, 1985,

        • (C) an amount equal to the sum of all amounts that were required to be paid by the employer to the administrator of a pooled registered pension plan, as defined in subsection 2(1) of the Pooled Registered Pension Plans Act, and

      • (iii) in the case of any other prescribed pension plan,

        • (A) an amount equal to the amount that would be the normal cost, within the meaning of subsection 2(1) of the Pension Benefits Standards Regulations, 1985, that the employer would be required to pay to the fund if the prescribed plan were regulated by an Act of Parliament, and

        • (B) an amount equal to the sum of all amounts that would have been required to be paid by the employer to the fund under a defined contribution provision, within the meaning of subsection 2(1) of the Pension Benefits Standards Act, 1985, if the prescribed plan were regulated by an Act of Parliament,

        • (C) an amount equal to the sum of all amounts that would have been required to be paid by the employer in respect of a prescribed plan, if it were regulated by the Pooled Registered Pension Plans Act; and

    • (b) the court is satisfied that the employer can and will make the payments as required under paragraph (a).

  • Marginal note:Non-application of subsection (1.5)

    (1.6) Despite subsection (1.5), the court may approve a proposal that does not allow for the payment of the amounts referred to in that subsection if it is satisfied that the relevant parties have entered into an agreement, approved by the relevant pension regulator, respecting the payment of those amounts.

  • Marginal note:Payment — equity claims

    (1.7) No proposal that provides for the payment of an equity claim is to be approved by the court unless the proposal provides that all claims that are not equity claims are to be paid in full before the equity claim is to be paid.

  • Marginal note:Payment to trustee

    (2) All moneys payable under the proposal shall be paid to the trustee and, after payment of all proper fees and expenses mentioned in subsection (1), shall be distributed by him to the creditors.

  • Marginal note:Distribution of promissory notes, stock, etc., of debtor

    (3) Where the proposal provides for the distribution of property in the nature of promissory notes or other evidence of obligations by or on behalf of the debtor or, when the debtor is a corporation, shares in the capital stock of the corporation, the property shall be dealt with in the manner prescribed in subsection (2) as nearly as may be.

  • Marginal note:Section 147 applies

    (4) Section 147 applies to all distributions made to the creditors by the trustee pursuant to subsection (2) or (3).

  • Marginal note:Power of court

    (5) Subject to subsections (1) to (1.7), the court may either approve or refuse to approve the proposal.

  • R.S., 1985, c. B-3, s. 60
  • 1992, c. 27, s. 24
  • 1997, c. 12, s. 37
  • 2000, c. 30, s. 144
  • 2005, c. 47, s. 39
  • 2007, c. 36, ss. 22, 99
  • 2009, c. 33, s. 22
  • 2012, c. 16, s. 79

Marginal note:Annulment of bankruptcy

  •  (1) The approval by the court of a proposal made after bankruptcy operates to annul the bankruptcy and to revest in the debtor, or in such other person as the court may approve, all the right, title and interest of the trustee in the property of the debtor, unless the terms of the proposal otherwise provide.

  • Marginal note:Non-approval of proposal by court

    (2) Where the court refuses to approve a proposal in respect of an insolvent person a copy of which has been filed under section 62,

    • (a) the insolvent person is deemed to have thereupon made an assignment;

    • (b) the trustee shall, without delay, file with the official receiver, in the prescribed form, a report of the deemed assignment;

    • (b.1) the official receiver shall issue a certificate of assignment, in the prescribed form, which has the same effect for the purposes of this Act as an assignment filed under section 49; and

    • (c) the trustee shall, within five days after the day the certificate mentioned in paragraph (b.1) is issued, send notice of the meeting of creditors under section 102, at which meeting the creditors may by ordinary resolution, notwithstanding section 14, affirm the appointment of the trustee or appoint another licensed trustee in lieu of that trustee.

  • (3) [Repealed, 1992, c. 27, s. 25]

  • Marginal note:Costs when proposal refused

    (4) No costs incurred by a debtor on or incidental to an application to approve a proposal, other than the costs incurred by the trustee, shall be allowed out of the estate of the debtor if the court refuses to approve the proposal.

  • R.S., 1985, c. B-3, s. 61
  • 1992, c. 27, s. 25
  • 1997, c. 12, s. 38
  • 2005, c. 47, s. 40
  • 2017, c. 26, s. 8(E)

Marginal note:Filing of proposal

  •  (1) If a proposal is made in respect of an insolvent person, the trustee shall file with the official receiver a copy of the proposal and the prescribed statement of affairs.

  • Marginal note:Determination of claims

    (1.1) Except in respect of claims referred to in subsection 14.06(8), where a proposal is made in respect of an insolvent person, the time with respect to which the claims of creditors shall be determined is the time of the filing of

    • (a) the notice of intention; or

    • (b) the proposal, if no notice of intention was filed.

  • Marginal note:Determination of claims re bankrupt

    (1.2) Except in respect of claims referred to in subsection 14.06(8), where a proposal is made in respect of a bankrupt, the time with respect to which the claims of creditors shall be determined is the date on which the bankrupt became bankrupt.

  • Marginal note:On whom approval binding

    (2) Subject to subsection (2.1), a proposal accepted by the creditors and approved by the court is binding on creditors in respect of

    • (a) all unsecured claims; and

    • (b) the secured claims in respect of which the proposal was made and that were in classes in which the secured creditors voted for the acceptance of the proposal by a majority in number and two thirds in value of the secured creditors present, or represented by a proxyholder, at the meeting and voting on the resolution to accept the proposal.

  • Marginal note:When insolvent person is released from debt

    (2.1) A proposal accepted by the creditors and approved by the court does not release the insolvent person from any particular debt or liability referred to in subsection 178(1) unless the proposal explicitly provides for the compromise of that debt or liability and the creditor in relation to that debt or liability voted for the acceptance of the proposal.

  • Marginal note:Certain persons not released

    (3) The acceptance of a proposal by a creditor does not release any person who would not be released under this Act by the discharge of the debtor.

  • R.S., 1985, c. B-3, s. 62
  • 1992, c. 27, s. 26
  • 1997, c. 12, s. 39
  • 2005, c. 47, s. 41
  • 2007, c. 36, s. 23

Marginal note:Default in performance of proposal

 Where

  • (a) default is made in the performance of any provision in a proposal,

  • (b) the default is not waived

    • (i) by the inspectors, or

    • (ii) if there are no inspectors, by the creditors, and

  • (c) the default is not remedied by the insolvent person within the prescribed time,

the trustee shall, within such time and in such form and manner as are prescribed, so inform all the creditors and the official receiver.

  • 1992, c. 27, s. 27

Marginal note:Receiving order on default, etc.

  •  (1) Where default is made in the performance of any provision in a proposal, or where it appears to the court that the proposal cannot continue without injustice or undue delay or that the approval of the court was obtained by fraud, the court may, on application thereto, with such notice as the court may direct to the debtor, and, if applicable to the trustee and to the creditors, annul the proposal.

  • Marginal note:Validity of things done

    (2) An order made under subsection (1) shall be made without prejudice to the validity of any sale, disposition of property or payment duly made, or anything duly done under or in pursuance of the proposal, and notwithstanding the annulment of the proposal, a guarantee given pursuant to the proposal remains in full force and effect in accordance with its terms.

  • Marginal note:Annulment for offence

    (3) A proposal, although accepted or approved, may be annulled by order of the court at the request of the trustee or of any creditor whenever the debtor is afterwards convicted of any offence under this Act.

  • Marginal note:Effect of annulling order

    (4) On the annulment of a proposal, the debtor shall be deemed to have thereupon made an assignment and the order annulling the proposal shall so state.

  • Marginal note:Meeting of creditors to be called

    (5) Where an order annulling a proposal has been made, the trustee shall, within five days after the order is made, send notice of the meeting of creditors under section 102, at which meeting the creditors may by ordinary resolution, notwithstanding section 14, affirm the appointment of the trustee or appoint another licensed trustee in lieu of that trustee.

  • Marginal note:Consequences of annulment

    (6) Where an order annulling the proposal described in subsection (5) has been made, the trustee shall forthwith file a report thereof in the prescribed form with the official receiver, who shall thereupon issue a certificate of assignment in the prescribed form, which has the same effect for the purposes of this Act as an assignment filed pursuant to section 49.

  • R.S., 1985, c. B-3, s. 63
  • 1992, c. 27, s. 28
  • 2004, c. 25, s. 34(F)

Marginal note:Removal of directors

  •  (1) The court may, on the application of any person interested in the matter, make an order removing from office any director of a debtor in respect of whom a notice of intention has been filed under section 50.4 or a proposal has been filed under subsection 62(1) if the court is satisfied that the director is unreasonably impairing or is likely to unreasonably impair the possibility of a viable proposal being made in respect of the debtor or is acting or is likely to act inappropriately as a director in the circumstances.

  • Marginal note:Filling vacancy

    (2) The court may, by order, fill any vacancy created under subsection (1).

  • R.S., 1985, c. B-3, s. 64
  • 1992, c. 27, s. 29
  • 1997, c. 12, s. 40
  • 1999, c. 31, s. 20
  • 2005, c. 47, s. 42
 
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