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

Marginal note:Designation of beneficiary

2.1 A change in the designation of a beneficiary in an insurance contract is deemed to be a disposition of property for the purpose of this Act.

Marginal note:Superintendent’s division office

2.2 Any notification, document or other information that is required by this Act to be given, forwarded, mailed, sent or otherwise provided to the Superintendent, other than an application for a licence under subsection 13(1), shall be given, forwarded, mailed, sent or otherwise provided to the Superintendent at the Superintendent’s division office as specified in directives of the Superintendent.

3 [Repealed, 2005, c. 47, s. 4]

Marginal note:Definitions

• 4 (1) In this section,

  entity

  entity means a person other than an individual; (entité)

  related group

  related group means a group of persons each member of which is related to every other member of the group; (groupe lié)

  unrelated group

  unrelated group means a group of persons that is not a related group. (groupe non lié)

• Definition of related persons

  (2) For the purposes of this Act, persons are related to each other and are related persons if they are

  • (a) individuals connected by blood relationship, marriage, common-law partnership or adoption;

  • (b) an entity and

    • (i) a person who controls the entity, if it is controlled by one person,

    • (ii) a person who is a member of a related group that controls the entity, or

    • (iii) any person connected in the manner set out in paragraph (a) to a person described in subparagraph (i) or (ii); or

  • (c) two entities

    • (i) both controlled by the same person or group of persons,

    • (ii) each of which is controlled by one person and the person who controls one of the entities is related to the person who controls the other entity,

    • (iii) one of which is controlled by one person and that person is related to any member of a related group that controls the other entity,

    • (iv) one of which is controlled by one person and that person is related to each member of an unrelated group that controls the other entity,

    • (v) one of which is controlled by a related group a member of which is related to each member of an unrelated group that controls the other entity, or

    • (vi) one of which is controlled by an unrelated group each member of which is related to at least one member of an unrelated group that controls the other entity.

• Marginal note:Relationships

  (3) For the purposes of this section,

  • (a) if two entities are related to the same entity within the meaning of subsection (2), they are deemed to be related to each other;

  • (b) if a related group is in a position to control an entity, it is deemed to be a related group that controls the entity whether or not it is part of a larger group by whom the entity is in fact controlled;

  • (c) a person who has a right under a contract, in equity or otherwise, either immediately or in the future and either absolutely or contingently, to, or to acquire, ownership interests, however designated, in an entity, or to control the voting rights in an entity, is, except when the contract provides that the right is not exercisable until the death of an individual designated in the contract, deemed to have the same position in relation to the control of the entity as if the person owned the ownership interests;

  • (d) if a person has ownership interests in two or more entities, the person is, as holder of any ownership interest in one of the entities, deemed to be related to himself or herself as holder of any ownership interest in each of the other entities;

  • (e) persons are connected by blood relationship if one is the child or other descendant of the other or one is the brother or sister of the other;

  • (f) persons are connected by marriage if one is married to the other or to a person who is connected by blood relationship or adoption to the other;

  • (f.1) persons are connected by common-law partnership if one is in a common-law partnership with the other or with a person who is connected by blood relationship or adoption to the other; and

  • (g) persons are connected by adoption if one has been adopted, either legally or in fact, as the child of the other or as the child of a person who is connected by blood relationship, otherwise than as a brother or sister, to the other.

• Marginal note:Question of fact

  (4) It is a question of fact whether persons not related to one another were at a particular time dealing with each other at arm’s length.

• Marginal note:Presumptions

  (5) Persons who are related to each other are deemed not to deal with each other at arm’s length while so related. For the purpose of paragraph 95(1)(b) or 96(1)(b), the persons are, in the absence of evidence to the contrary, deemed not to deal with each other at arm’s length.

Her Majesty

Marginal note:Binding on Her Majesty

4.1 This Act is binding on Her Majesty in right of Canada or a province.

Duty of Good Faith

Marginal note:Good faith

• 4.2 (1) Any interested person in any proceedings under this Act shall act in good faith with respect to those proceedings.

• Marginal note:Good faith — powers of court

  (2) If the court is satisfied that an interested person fails to act in good faith, on application by any interested person, the court may make any order that it considers appropriate in the circumstances.

PART IAdministrative Officials

Superintendent

Marginal note:Appointment

• 5 (1) The Governor in Council shall appoint a Superintendent of Bankruptcy to hold office during good behaviour for a term of not more than five years, but the Superintendent may be removed from office by the Governor in Council for cause. The Superintendent’s term may be renewed for one or more further terms.

• Marginal note:Salary

  (1.1) The Superintendent shall be paid the salary that the Governor in Council may fix.

• Marginal note:Extent of supervision

  (2) The Superintendent shall supervise the administration of all estates and matters to which this Act applies.

• Marginal note:Duties

  (3) The Superintendent shall, without limiting the authority conferred by subsection (2),

  • (a) receive applications for licences to act as trustees under this Act and issue licences to persons whose applications have been approved;

  • (b) monitor the conditions that led to a trustee being issued a licence to determine whether those conditions continue to exist after the licence has been issued and take the appropriate action if he or she determines that the conditions no longer exist;

  • (c) where not otherwise provided for, require the deposit of one or more continuing guaranty bonds or continuing suretyships as security for the due accounting of all property received by trustees and for the due and faithful performance by them of their duties in the administration of estates to which they are appointed, in any amount that the Superintendent may determine, which amount may be increased or decreased as the Superintendent may deem expedient, and the security shall be in a form satisfactory to the Superintendent and may be enforced by the Superintendent for the benefit of the creditors;

  • (d) [Repealed, 1992, c. 27, s. 5]

  • (e) from time to time, make or cause to be made any inquiry or investigation of estates or other matters to which this Act applies, including the conduct of a trustee or a trustee acting as a receiver, within the meaning of subsection 243(2), or as an interim receiver, that the Superintendent considers appropriate, and for the purpose of the inquiry or investigation the Superintendent or any person appointed by the Superintendent for the purpose shall have access to and the right to examine and make copies of all books, records, data, including data in electronic form, documents and papers, that are relevant to an inquiry or investigation pertaining or relating to any estate or other matter to which this Act applies;

  • (f) receive and keep a record of all complaints from any creditor or other person interested in any estate and make such specific investigations with regard to such complaints as the Superintendent may determine; and

  • (g) examine trustees’ accounts of receipts and disbursements and final statements.

• Marginal note:Powers of Superintendent

  (4) The Superintendent may

  • (a) intervene in any matter or proceeding in court, where the Superintendent considers it expedient to do so, as if the Superintendent were a party thereto;

  • (b) issue, to official receivers, trustees, administrators of consumer proposals made under Division II of Part III and persons who provide counselling pursuant to this Act, directives with respect to the administration of this Act and, without restricting the generality of the foregoing, directives requiring them

    • (i) to keep such records as the Superintendent may require, and

    • (ii) to provide the Superintendent with such information as the Superintendent may require;

  • (c) issue such directives as may be necessary to give effect to any decision made by the Superintendent pursuant to this Act or to facilitate the carrying out of the purposes and provisions of this Act and the General Rules, including, without limiting the generality of the foregoing, directives relating to the powers, duties and functions of trustees, of receivers and of administrators as defined in section 66.11;

  • (d) issue directives governing the criteria to be applied by the Superintendent in determining whether a trustee licence is to be issued to a person and governing the qualifications and activities of trustees;

  • (d.1) issue directives respecting the rules governing hearings for the purposes of section 14.02; and

  • (e) issue directives prescribing the form of any document that is by this Act to be prescribed and the information to be given therein.

• Marginal note:Compliance with directives

  (5) Every person to whom a directive is issued by the Superintendent under paragraph (4)(b) or (c) shall comply with the directive in the manner and within the time specified therein.

• Marginal note:Directives

  (6) A directive issued by the Superintendent under this section shall be deemed not to be a statutory instrument within the meaning and for the purposes of the Statutory Instruments Act.

Marginal note:Outside investigations

• 6 (1) The Superintendent may engage any persons that the Superintendent considers advisable to conduct any inquiry or investigation or to take any other necessary action outside of the office of the Superintendent, and the cost and expenses of those persons shall, when certified by the Superintendent, be payable out of the appropriation for the office of the Superintendent.

• Marginal note:Superintendent may examine bank account

  (2) The Superintendent, or any one duly authorized by him in writing on his behalf, is entitled to have access to and to examine and make copies of the banking accounts of a trustee in which estate funds may have been deposited, and, when required, all deposit slips, cancelled cheques or other documents relating thereto in the custody of the bank or the trustee shall be produced for examination.

• Marginal note:Superintendent may examine records and documents

  (3) The Superintendent, or anyone duly authorized in writing by or on behalf of the Superintendent, may with the leave of the court granted on an ex parte application examine the books, records, documents and deposit accounts of a trustee or any other person designated in the order granting that leave for the purpose of tracing or discovering the property or funds of an estate when there are reasonable grounds to believe or suspect that the property or funds of an estate have not been properly disclosed or dealt with and for that purpose may under a warrant from the court enter on and search any premises.

• Marginal note:Court order re payments from accounts

  (4) Where the Superintendent, on ex parte application, satisfies the court that it is necessary and in the public interest to do so, the court may issue an order directing a deposit-taking institution that holds a deposit account of a trustee or such other person as is designated in the order not to make payments out of the account until such time as the court otherwise directs.

7 and 8 [Repealed, 1992, c. 27, s. 6]

Marginal note:Appointment of employees

9 Such employees as are required to assist the Superintendent to perform his functions under this Act shall be appointed in accordance with the Public Service Employment Act.

Marginal note:Investigations or inquiries by Superintendent

• 10 (1) If, on information supplied by an official receiver, trustee or other person, the Superintendent suspects, on reasonable grounds, that a person has, in connection with any estate or matter to which this Act applies, committed an offence under this or any other Act of Parliament, the Superintendent may, if it appears to the Superintendent that the alleged offence might not otherwise be investigated, make or cause to be made any inquiries or investigations that the Superintendent considers appropriate.

• (2) [Repealed, 1992, c. 27, s. 7]

• Marginal note:Examination

  (3) If, on the application of the Superintendent or the Superintendent’s authorized representative, a subpoena has been issued by the court, the Superintendent may, for the purpose of an inquiry or investigation under subsection (1), examine or cause to be examined under oath before the registrar of the court or other authorized person, the trustee, the debtor, any person who the Superintendent suspects, on reasonable grounds, has knowledge of the affairs of the debtor, or any person who is or has been an agent or a mandatary, or a clerk, a servant, an officer, a director or an employee of the debtor or the trustee, with respect to the conduct, dealings and transactions of the debtor, the causes of the bankruptcy or insolvency of the debtor, the disposition of the debtor’s property or the administration of the estate, and may order any person liable to be so examined to produce any books, records, data, including data in electronic form, documents or papers in the person’s possession or under the person’s control.

• Marginal note:Questions

  (4) A person being examined pursuant to this section is bound to answer all questions relating to the conduct, dealings and transactions of the debtor, the causes of the debtor’s bankruptcy or insolvency and the disposition of the debtor’s property.

• Marginal note:Privilege of witness

  (5) Where a person being examined pursuant to this section objects to answering any question on the ground that his answer may tend to criminate him or may tend to establish his liability to a civil proceeding at the instance of the Crown or of any person and if, but for this section or section 5 of the Canada Evidence Act, he would have been excused from answering that question, the answer so given shall not be used or admitted in evidence against him in any proceeding, civil or criminal, thereafter taking place other than a prosecution for perjury in the giving of that evidence.

• Marginal note:Compliance

  (6) No person shall hinder, molest or interfere with any person doing anything that he is authorized by or pursuant to this section to do, or prevent or attempt to prevent any person doing any such thing, and, notwithstanding any other Act or law, every person shall, unless he is unable to do so, do everything he is required by or pursuant to this section to do.

• Marginal note:Copies

  (7) Where any book, record, paper or other document is examined or produced in accordance with this section, the person by whom it is examined or to whom it is produced or the Superintendent may make or cause to be made one or more copies thereof, and a document purporting to be certified by the Superintendent or a person thereunto authorized by him to be a copy made pursuant to this section is admissible in evidence and has the same probative force as the original document would have if it were proven in the ordinary way.