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

Act current to 2021-11-17 and last amended on 2019-11-01. Previous Versions

PART IAdministrative Officials (continued)

Trustees (continued)

Appointment and Substitution of Trustees (continued)

Marginal note:Conservatory measures

  •  (1) Subject to subsection (2), the Superintendent may, for the protection of an estate, the rights of the creditors or the debtor,

    • (a) direct a person to deal with property of the estate described in the direction in such manner as may be indicated in the direction, including the continuation of the administration of the estate;

    • (b) direct any person to take such steps as the Superintendent considers necessary to preserve the books, records, data, including data in electronic form, and documents of the estate;

    • (c) direct a bank or other depository not to pay out funds held to the credit of the estate except in accordance with the direction; and

    • (d) direct the official receiver not to appoint the trustee in respect of any new estates until a decision is made under subsection 13.2(5) or 14.01(1).

  • Marginal note:Circumstances

    (2) The circumstances in which the Superintendent is authorized to exercise the powers set out in subsection (1) are where

    • (a) an estate is left without a trustee by the death, removal or incapacity of the trustee;

    • (b) the Superintendent makes or causes to be made any inquiry or investigation under paragraph 5(3)(e);

    • (c) the Superintendent exercises any of the powers set out in section 14.01;

    • (d) the fees referred to in subsection 13.2(2) have not been paid in respect of the trustee’s licence;

    • (e) a trustee becomes insolvent;

    • (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

    • (g) a circumstance referred to in paragraph 13.2(5)(c) or (d) exists and the Superintendent is considering cancelling the licence under subsection 13.2(5).

  • Marginal note:Contents and effect of direction

    (3) A direction given pursuant to subsection (1)

    • (a) shall state the statutory authority pursuant to which the direction is given;

    • (b) is binding on the person to whom it is given; and

    • (c) is, in favour of the person to whom it is given, conclusive proof of the facts set out therein.

  • Marginal note:Liability ceases on compliance

    (4) A person who complies with a direction given pursuant to subsection (1) is not liable for any act done by the person only to comply with the direction.

  • 1992, c. 27, s. 9
  • 1997, c. 12, s. 14
  • 1999, c. 31, s. 18(E)
  • 2005, c. 47, s. 16
  • 2007, c. 36, s. 8(F)

Marginal note:Removal and appointment

 The court, on the application of any interested person, may for cause remove a trustee and appoint another licensed trustee in the trustee’s place.

  • 1992, c. 27, s. 9

Marginal note:Where there is no licensed trustee, etc.

 Where a debtor resides or carries on business in a locality in which there is no licensed trustee, and no licensed trustee can be found who is willing to act as trustee, the court or the official receiver may appoint a responsible person residing in the locality of the debtor to administer the estate of the debtor, and that person, for that purpose, has all the powers of a licensed trustee under this Act, and the provisions of this Act apply to that person as if a licence had been issued to that person under paragraph 5(3)(a).

  • 1992, c. 27, s. 9

Marginal note:No trustee is bound to act

  •  (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: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: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: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.

  • Marginal note:Liability in respect of environmental matters

    (2) Notwithstanding anything in any federal or provincial law, a trustee is not personally liable in that position for any environmental condition that arose or environmental damage that occurred

    • (a) before the trustee’s appointment; or

    • (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:Reports, etc., still required

    (3) Nothing in subsection (2) exempts a trustee from any duty to report or make disclosure imposed by a law referred to in that subsection.

  • Marginal note:Non-liability re certain orders

    (4) Notwithstanding anything in any federal or provincial law but subject to subsection (2), where an order is made which has the effect of requiring a trustee to remedy any environmental condition or environmental damage affecting property involved in a bankruptcy, proposal or receivership, the trustee is not personally liable for failure to comply with the order, and is not personally liable for any costs that are or would be incurred by any person in carrying out the terms of the order,

    • (a) if, within such time as is specified in the order, within ten days after the order is made if no time is so specified, within ten days after the appointment of the trustee, if the order is in effect when the trustee is appointed, or during the period of the stay referred to in paragraph (b), the trustee

      • (i) complies with the order, or

      • (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;

    • (b) during the period of a stay of the order granted, on application made within the time specified in the order referred to in paragraph (a), within ten days after the order is made or within ten days after the appointment of the trustee, if the order is in effect when the trustee is appointed, by

      • (i) the court or body having jurisdiction under the law pursuant to which the order was made to enable the trustee to contest the order, or

      • (ii) the court having jurisdiction in bankruptcy for the purposes of assessing the economic viability of complying with the order; or

    • (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:Stay may be granted

    (5) The court may grant a stay of the order referred to in subsection (4) on such notice and for such period as the court deems necessary for the purpose of enabling the trustee to assess the economic viability of complying with the order.

  • 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.

  • 1992, c. 27, s. 9
  • 1997, c. 12, s. 15
  • 2004, c. 25, s. 16
  • 2005, c. 47, s. 17
  • 2007, c. 36, s. 9

Marginal note:Effect of defect or irregularity in appointment

 No defect or irregularity in the appointment of a trustee vitiates any act done by the trustee in good faith.

  • 1992, c. 27, s. 9

Corporations as Trustees

Marginal note:Majority of officers and directors must hold licences

 A body corporate may hold a licence as a trustee only if a majority of its directors and a majority of its officers hold licences as trustees.

  • 1992, c. 27, s. 9

Marginal note:Acts of body corporate

 A body corporate that holds a licence as a trustee may perform the duties and exercise the powers of a trustee only through a director or officer of the body corporate who holds a licence as a trustee.

  • 1992, c. 27, s. 9

Marginal note:Not carrying on business of trust company

 Every body corporate that is incorporated by or under an Act of Parliament and that holds a licence as a trustee may carry on the business of a trustee anywhere in Canada and shall not, in respect of its operations as a trustee, be construed to be carrying on the business of a trust company.

  • 1992, c. 27, s. 9

Official Name

Marginal note:Official name in bankruptcy and proposal proceedings

 The official name of a trustee acting in bankruptcy proceedings is “The Trustee of the Estate of (insert name of the bankrupt), a bankrupt”, and the official name of a trustee acting with respect to a proposal by an insolvent person is “The Trustee acting in re the proposal of (insert the name of the debtor)”.

  • R.S., c. B-3, s. 11

Status of Trustee

Marginal note:Declaration

 A trustee is deemed to be a trustee for the purposes of the definition trustee in section 2 of the Criminal Code.

  • 1997, c. 12, s. 16
  • 2004, c. 25, s. 17(F)

Duties and Powers of Trustees

Marginal note:Security to be given by trustee

  •  (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: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.

  • Marginal note:Warrant required to enter

    (3.1) Where the premises referred to in subsection (3) are occupied by a person other than the bankrupt, the trustee may not enter the premises without the consent of that other person except under the authority of a warrant issued under section 189.

  • Marginal note:Trustee to be receiver

    (4) The trustee shall, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, be in the same position as if he were a receiver of the property appointed by the court, and the court may on his application enforce the acquisition or retention accordingly.

  • Marginal note:Right of trustee to books of account, etc.

    (5) No person is, as against the trustee, entitled to withhold possession of the books of account belonging to the bankrupt or any papers or documents, including material in electronic form, relating to the accounts or to any trade dealings of the bankrupt or to set up any lien or right of retention thereon.

  • R.S., 1985, c. B-3, s. 16
  • R.S., 1985, c. 31 (1st Supp.), s. 3
  • 1994, c. 26, s. 7
  • 1997, c. 12, s. 17
  • 2004, c. 25, s. 18

Marginal note:Property to be delivered to trustee

  •  (1) Where a person has in his possession or power any property of the bankrupt that he is not by law entitled to retain as against the bankrupt or the trustee, that person shall deliver the property to the trustee.

  • Marginal note:Power to act anywhere

    (2) For the purpose of obtaining possession of and realizing on the property of the bankrupt, a trustee has power to act as such anywhere.

  • R.S., c. B-3, s. 12

Marginal note:Conservatory measures

 The trustee may when necessary in the interests of the estate of the bankrupt

  • (a) take conservatory measures and summarily dispose of property that is perishable or likely to depreciate rapidly in value; and

  • (b) carry on the business of the bankrupt until the date fixed for the first meeting of creditors.

  • R.S., c. B-3, s. 12
 
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