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Winding-up and Restructuring Act (R.S.C., 1985, c. W-11)

Act current to 2022-11-16 and last amended on 2016-06-22. Previous Versions

PART IGeneral (continued)

Unclaimed Deposits

Marginal note:Unclaimed dividends

  •  (1) All dividends deposited in a bank and remaining unclaimed at the time of the final winding-up of the business of a company shall be left for three years in the bank where they are deposited, subject to the claim of the persons entitled thereto.

  • Marginal note:After three years

    (2) If the dividends deposited under subsection (1) are unclaimed at the expiration of three years, the bank shall pay them over, with interest accrued on them, to the Minister of Industry.

  • Marginal note:If afterwards claimed

    (3) If the dividends deposited under subsection (1) are afterwards duly claimed, they shall be paid over by the bank, with interest accrued thereon, to the persons entitled thereto.

  • R.S., 1985, c. W-11, s. 138
  • 1999, c. 28, s. 90

Marginal note:Money deposited not paid after three years

  •  (1) The money deposited in a bank by a liquidator after the final winding-up of the business of a company shall be left for three years in the bank, subject to be claimed by the persons entitled thereto.

  • Marginal note:Unclaimed money

    (2) Money not paid out pursuant to subsection (1) shall be paid over by the bank, with the interest accrued on it, to the Minister of Industry, and if afterwards claimed shall be paid, with that interest, to the persons entitled to it.

  • R.S., 1985, c. W-11, s. 139
  • 1999, c. 28, s. 91

Offences and Punishment

Marginal note:Court may direct criminal proceedings

 When a winding-up order is made in respect of a company, if it appears in the course of the winding-up that any past or present director, manager, officer or member of the company is guilty of an offence in relation to the company for which he is criminally liable, the court may, on the application of any person interested in the winding-up, or of its own motion, direct the liquidator to institute and conduct a prosecution or prosecutions for the offence and may order the costs and expenses to be paid out of the assets of the company.

  • R.S., c. W-10, s. 141

Marginal note:Destruction of books or false entry therein

 Every person who, with intent to defraud or deceive any person, destroys, mutilates, alters or falsifies any book, paper, writing or security, or makes or is privy to the making of any false or fraudulent entry in any register, book of account or other document belonging to a company, the business of which is being wound up under this Act, is guilty of an indictable offence and liable to imprisonment in the penitentiary for any term not less than two years or to imprisonment in any jail or in any place of confinement other than a penitentiary for any term less than two years, with or without hard labour.

  • R.S., c. W-10, s. 142

Marginal note:Failure to comply with order of court

  •  (1) Any liquidator, director, manager, receiver, officer or employee of a company who fails to comply with the requirements or directions of any order made by a court under this Act is guilty of contempt of court and is subject to all processes and punishments of the court for contempt.

  • Marginal note:Removal of liquidator

    (2) Any liquidator who fails to comply as described in subsection (1) may, in the discretion of the court, be removed from office as liquidator.

  • R.S., c. W-10, s. 143

Marginal note:Refusal by officers of company to give information

 Any refusal on the part of the president, directors, officers or employees of a company to give all information possessed by them respectively as to the affairs of the company required by the accountant or other person ordered by a court under this Part to inquire into the affairs of the company and to report thereon is a contempt of court, and the president, directors, officers or employees are subject to all processes and punishments of the court for contempt.

  • R.S., c. W-10, s. 144

 [Repealed, 1996, c. 6, s. 158]

Marginal note:Refusal of witness to answer or subscribe

 Every person who is brought up for examination before a court after the court has made a winding-up order, or appearing before the court for the examination, and who refuses without lawful excuse to answer any question put to him or to subscribe any answer made by him on the examination is guilty of contempt of court and is subject to all processes and punishments of the court for contempt.

  • R.S., c. W-10, s. 146

Evidence

Marginal note:Books to be proof of contents

 Where the business of a company is being wound up under this Act, all books of the company and of the liquidators are, as between the contributories of the company, in the absence of evidence to the contrary, proof of the truth of all matters purporting to be therein recorded.

  • R.S., c. W-10, s. 147

Marginal note:Affidavits

 Every affidavit, solemn affirmation or declaration required to be sworn or made under or for the purposes of this Act, or to be used in a court in any proceeding under this Act, may be sworn or made

  • (a) in Canada before a liquidator, judge, notary public, commissioner for taking affidavits or justice of the peace; and

  • (b) outside Canada, before any judge of a court of record, any commissioner for taking affidavits to be used in any court in Canada, any notary public, the chief municipal officer of any town or city, any British consul or vice-consul or any person authorized by or under any statute of Canada, or of any province, to take affidavits.

  • R.S., c. W-10, s. 148

Marginal note:Judicial notice of seals, stamp or signature

 All courts, judges, justices, commissioners and persons acting judicially shall take judicial notice of the seal, stamp or signature, as the case may be, of any court, liquidator, judge, notary public, commissioner, justice, chief municipal officer, consul, vice-consul or other person referred to in section 147, attached, appended or subscribed to any affidavit, solemn affirmation or declaration referred to in that section or to any other document to be used for the purposes of this Act.

  • R.S., c. W-10, s. 149

Marginal note:Copy of order

 When any order made by one court is required to be enforced by another court, the production of an office copy of the order so made certified by the clerk or other proper officer of the court that made the order, under the seal of the court, is sufficient evidence of the order having been made.

  • R.S., c. W-10, s. 150

PART IIAuthorized Foreign Banks

Marginal note:Application of Part

 This Part applies only to the winding-up of the business in Canada of authorized foreign banks and to the liquidation of their assets.

  • R.S., 1985, c. W-11, s. 150
  • 1996, c. 6, s. 159
  • 1999, c. 28, s. 92

Marginal note:Notice

  •  (1) In their application to an authorized foreign bank, section 26 and subsections 35(1) and 42(1) are to be read as if notice is required to be given to the authorized foreign bank, its creditors and persons who hold security on any of its assets.

  • Marginal note:Exception

    (2) Notice need not be given to persons referred to in subsection (1) who hold security on any of the assets of an authorized foreign bank unless they can be located using information contained in the books and records in Canada of the authorized foreign bank and those books and records are accessible by or under the control of, where section 26 applies, the petitioner for the winding-up order and, where subsection 35(1) or 42(1) applies, the liquidator.

  • R.S., 1985, c. W-11, s. 151
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:Duties after appointment

 A liquidator, on appointment in respect of an authorized foreign bank, shall take into custody or under control all the assets of the authorized foreign bank, and shall perform the duties that are imposed by the court or by this Act with reference to

  • (a) the winding-up of the business in Canada of the authorized foreign bank; and

  • (b) the liquidation of the assets of the authorized foreign bank.

  • R.S., 1985, c. W-11, s. 152
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:Authorized foreign bank to cease business

 From the time of the making of a winding-up order in respect of an authorized foreign bank, it shall cease to carry on its business in Canada or deal in any way with its assets, except in so far as is, in the opinion of the liquidator, required for the beneficial winding-up of its business in Canada and liquidation of its assets.

  • R.S., 1985, c. W-11, s. 153
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:Effect of winding-up order

 After a winding-up order is made in respect of an authorized foreign bank, no suit, action or other proceeding may be proceeded with or commenced against the authorized foreign bank in respect of its business in Canada or of its assets, except with the leave of the court and subject to the terms, if any, that the court imposes.

  • R.S., 1985, c. W-11, s. 154
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:Execution, etc.

 Every attachment, sequestration, distress or execution put in force against the assets of the authorized foreign bank after the making of a winding-up order in respect of it is void.

  • R.S., 1985, c. W-11, s. 155
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:Liquidator to prepare statement

 A liquidator shall, within 120 days after appointment in respect of an authorized foreign bank, prepare a statement of

  • (a) the assets, debts and liabilities of the authorized foreign bank in respect of its business in Canada and of the value of those assets as shown by the books and records of the authorized foreign bank; and

  • (b) the assets of the authorized foreign bank, other than those in respect of its business in Canada, and the value of the assets as shown by the books and records of the authorized foreign bank or, where the books and records are not available, an estimated value of the assets.

  • R.S., 1985, c. W-11, s. 156
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:What debts may be proved

  •  (1) When the business in Canada of an authorized foreign bank is being wound up and its assets are being liquidated under this Act, only debts and claims against the authorized foreign bank in respect of its business in Canada in existence at the commencement of the winding-up, certain or contingent, matured or not, and liquidated or unliquidated, are admissible to proof and, subject to subsection (2), the amount of any claim admissible to proof is the unpaid debt or other liability of the authorized foreign bank in respect of its business in Canada outstanding or accrued at the commencement of the winding-up.

  • Marginal note:Uncertain claims valued

    (2) In case of any claim subject to any contingency or for unliquidated damages or which for any other reason does not bear a certain value, the court shall determine the value of the claim and the amount for which it shall rank.

  • R.S., 1985, c. W-11, s. 157
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:Law of set-off to apply

 The law of set-off, as administered by the courts, whether of law or equity, applies, in the same manner and to the same extent as if the business in Canada of the authorized foreign bank was not being wound up under this Act, only to

  • (a) claims by creditors of the authorized foreign bank in respect of its business in Canada; and

  • (b) proceedings for the recovery of debts due or accruing due to an authorized foreign bank in respect of its business in Canada at the commencement of the winding-up.

  • R.S., 1985, c. W-11, s. 158
  • 1996, c. 6, s. 160
  • 1999, c. 28, s. 92

Marginal note:Distribution of property

  •  (1) Where a winding-up order is made in respect of an authorized foreign bank, claims shall be paid in the following order of priority:

    • (a) charges, costs and expenses, including the remuneration of the liquidator, incurred in the winding-up of the business in Canada of the authorized foreign bank and of the liquidation of its assets;

    • (b) claims of preferred creditors, specified in section 72; and

    • (c) debts and liabilities of the authorized foreign bank in respect of its business in Canada in order of priority as set out in sections 625 and 627 of the Bank Act.

  • Marginal note:Distribution and release of surplus assets

    (2) Any assets that remain after payment of the claims referred to in paragraphs (1)(a) to (c) are to be applied firstly in payment of interest from the commencement of the winding-up at the rate of five per cent per annum on all claims proved in the winding-up and according to their priority. The liquidator may, with the approval of the court, release to the authorized foreign bank any assets remaining after payment of the interest.

  • 1999, c. 28, s. 92

Marginal note:Transfer to foreign liquidator

 Where an authorized foreign bank is in liquidation in the jurisdiction in which its head office is situated or where it principally carries on business, the Superintendent may, if the Superintendent deems it advisable and in the interests of the creditors of the authorized foreign bank, authorize the liquidator, subject to the approval of the court, to transfer the assets of the authorized foreign bank to the liquidator in that jurisdiction.

  • 1999, c. 28, s. 92

Marginal note:Right of action not debarred

 Subject to this Act, where the assets of an authorized foreign bank are not sufficient to cover in full all claims referred to in paragraphs 158.1(1)(a) to (c), the creditors are not barred from any recourse they have, either in law or equity, except in respect of the share, if any, received in the distribution of the assets.

  • 1999, c. 28, s. 92

PART IIIRestructuring of Insurance Companies

Marginal note:Definitions

 In this Part,

company

company means an insurance company; (société)

foreign company

foreign company means a foreign insurance company; (Version anglaise seulement)

policy

policy includes, without limiting the generality of its meaning, policy as defined in subsection 2(1) of the Insurance Companies Act. (police)

  • R.S., 1985, c. W-11, s. 159
  • R.S., 1985, c. 18 (3rd Supp.), s. 43
  • 1991, c. 47, s. 747
  • 1996, c. 6, s. 161
 
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