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

Act current to 2021-05-04 and last amended on 2019-11-01. Previous Versions

PART IAdministrative Officials (continued)

Trustees (continued)

Conduct of Trustees (continued)

Marginal note:Persons disqualified from working for trustee

 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).

  • 1997, c. 12, s. 11
  • 2005, c. 47, s. 13

Appointment and Substitution of Trustees

Marginal note:Appointment of trustee by creditors

 The creditors may, at any meeting by special resolution, appoint or substitute another licensed trustee for the trustee named in an assignment, a bankruptcy order or a proposal, or otherwise appointed or substituted.

  • R.S., 1985, c. B-3, s. 14
  • 1992, c. 27, s. 9
  • 2004, c. 25, s. 15

Marginal note:Decision affecting licence

  •  (1) If, after making or causing to be made an inquiry or investigation into the conduct of a trustee, it appears to the Superintendent that

    • (a) a trustee has not properly performed the duties of a trustee or has been guilty of any improper management of an estate,

    • (b) a trustee has not fully complied with this Act, the General Rules, directives of the Superintendent or any law with regard to the proper administration of any estate, or

    • (c) it is in the public interest to do so,

    the Superintendent may do one or more of the following:

    • (d) cancel or suspend the licence of the trustee;

    • (e) place such conditions or limitations on the licence as the Superintendent considers appropriate including a requirement that the trustee successfully take an exam or enrol in a proficiency course;

    • (f) require the trustee to make restitution to the estate of such amount of money as the estate has been deprived of as a result of the trustee’s conduct; and

    • (g) require the trustee to do anything that the Superintendent considers appropriate and that the trustee has agreed to.

  • Marginal note:Application to former trustees

    (1.1) This section and section 14.02 apply, in so far as they are applicable, in respect of former trustees, with such modifications as the circumstances require.

  • Marginal note:Delegation

    (2) The Superintendent may delegate by written instrument, on such terms and conditions as are therein specified, any or all of the Superintendent’s powers, duties and functions under subsection (1), subsection 13.2(5), (6) or (7) or section 14.02 or 14.03.

  • Marginal note:Notification to trustees

    (3) Where the Superintendent delegates in accordance with subsection (2), the Superintendent or the delegate shall

    • (a) where there is a delegation in relation to trustees generally, give written notice of the delegation to all trustees; and

    • (b) whether or not paragraph (a) applies, give written notice of the delegation of a power to any trustee who may be affected by the exercise of that power, either before the power is exercised or at the time the power is exercised.

  • 1992, c. 27, s. 9
  • 1997, c. 12, s. 12
  • 2005, c. 47, s. 14
  • 2007, c. 36, s. 6

Marginal note:Notice to trustee

  •  (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:Summons

    (1.1) The Superintendent may, for the purpose of the hearing, issue a 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 their knowledge relative to the subject matter of the inquiry or investigation into the conduct of the trustee; 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.

  • Marginal note:Effect throughout Canada

    (1.2) A person may be summoned from any part of Canada by virtue of a 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.

  • Marginal note:Procedure at hearing

    (2) At a hearing referred to in subsection (1), the Superintendent

    • (a) has the power to administer oaths;

    • (b) is not bound by any legal or technical rules of evidence in conducting the hearing;

    • (c) shall deal with the matters set out in the notice of the hearing as informally and expeditiously as the circumstances and a consideration of fairness permit; and

    • (d) shall cause a summary of any oral evidence to be made in writing.

  • Marginal note:Record

    (3) The notice referred to in subsection (1) and, where applicable, the summary of oral evidence referred to in paragraph (2)(d), together with such documentary evidence as the Superintendent receives in evidence, form the record of the hearing and the record and the hearing are public, unless the Superintendent is satisfied that personal or other matters that may be disclosed are of such a nature that the desirability of avoiding public disclosure of those matters, in the interest of a third party or in the public interest, outweighs the desirability of the access by the public to information about those matters.

  • Marginal note:Decision

    (4) The decision of the Superintendent after a hearing referred to in subsection (1), together with the reasons therefor, shall be given in writing to the trustee not later than three months after the conclusion of the hearing, and is public.

  • Marginal note:Review by Federal Court

    (5) A decision of the Superintendent given pursuant to subsection (4) is deemed to be a decision of a federal board, commission or other tribunal that may be reviewed and set aside pursuant to the Federal Courts Act.

  • 1992, c. 27, s. 9
  • 1997, c. 12, s. 13
  • 2002, c. 8, s. 182
  • 2005, c. 47, s. 15
  • 2007, c. 36, s. 7

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)
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