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

Marginal note:Winding-up and Restructuring Act not to apply

213 If an application for a bankruptcy order or an assignment has been filed under this Act in respect of a corporation, the Winding-up and Restructuring Act does not extend or apply to that corporation, despite anything contained in that Act, and any proceedings that are instituted under the Winding-up and Restructuring Act in respect of that corporation before the application or assignment is filed under this Act shall abate subject to any disposition of the costs of those proceedings to be made in the bankruptcy proceedings that the justice of the case may require.

Marginal note:Fees to officers of the court

214 The fees payable to officers of the court including official receivers shall be established by the General Rules, whether generally or for a particular province, and where so mentioned in the General Rules, shall belong to the Crown in right of the province.

Marginal note:No action against Superintendent, etc., without leave of court

215 Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee with respect to any report made under, or any action taken pursuant to, this Act.

Marginal note:Claims in foreign currency

215.1 A claim for a debt that is payable in a currency other than Canadian currency is to be converted to Canadian currency

• (a) in the case of a proposal in respect of an insolvent person and unless otherwise provided in the proposal, if a notice of intention was filed under subsection 50.4(1), as of the date the notice was filed or, if no notice was filed, as of the date the proposal was filed with the official receiver under subsection 62(1);

• (b) in the case of a proposal in respect of a bankrupt and unless otherwise provided in the proposal, as of the date of the bankruptcy; or

• (c) in the case of a bankruptcy, as of the date of the bankruptcy.

216 [Repealed, 2007, c. 36, s. 55]

PART XOrderly Payment of Debts

Marginal note:Definitions

217 In this Part,

clerk

clerk means a clerk of the court; (greffier)

court

court means

• (a) in the Provinces of Manitoba and Alberta, the Court of Queen’s Bench, and

• (b) in any other province, such court as is designated by the regulations for the purposes of this Part; (tribunal)

debtor

debtor means an insolvent debtor, but does not include a corporation; (débiteur)

registered creditor

registered creditor means a creditor who is named in a consolidation order. (créancier inscrit)

Marginal note:Application

• 218 (1) This Part applies only to the following classes of debts:

  • (a) a judgment for the payment of money where the amount of the judgment does not exceed one thousand dollars;

  • (b) a judgment for the payment of money where the amount of the judgment is in excess of one thousand dollars if the judgment creditor consents to come under this Part;

  • (c) a claim or demand for or in respect of money, debt, account, covenant or otherwise, not in excess of one thousand dollars; and

  • (d) a claim or demand for or in respect of money, debt, account, covenant or otherwise, in excess of one thousand dollars if the creditor having the claim or demand consents to come under this Part.

• Marginal note:Exception

  (2) Notwithstanding subsection (1), this Part does not apply to the following classes of debts:

  • (a) a debt due, owing or payable

    • (i) to Her Majesty in right of Canada or a province,

    • (ii) to a municipality in Canada, or

    • (iii) to a school district in Canada;

  • (b) a debt relating to the public revenue or one that may be levied and collected in the form of taxes;

  • (c) a covenant in a mortgage or charge on land or in an agreement for sale of land; or

  • (d) a debt incurred by a trader or merchant in the ordinary course of his business.

• Marginal note:Idem

  (3) Notwithstanding subsection (1), this Part does not apply to the following classes of debts, unless the creditor consents to come under this Part:

  • (a) in the Province of Manitoba,

    • (i) a claim for wages that may be heard before, or a judgment therefor by, a magistrate under The Wages Recovery Act, or

    • (ii) a claim for a mechanic’s lien or a judgment thereon under The Mechanic’s Liens Act;

  • (b) in the Province of Alberta,

    • (i) a claim for wages that may be heard before, or a judgment therefor by, a magistrate under The Masters and Servants Act,

    • (ii) a claim for a lien or a judgment thereon under The Mechanic’s Lien Act or The Mechanics Lien Act, 1960, or

    • (iii) a claim for a lien under The Garagemen’s Lien Act; or

  • (c) in any other province, any debt of a class designated by the regulations to be a class of debts to which this Part does not apply.

Marginal note:Application for consolidation order

• 219 (1) A debtor who resides in a province in respect of which this Part applies may apply to the clerk of the court having jurisdiction where they reside for a consolidation order.

• Marginal note:Affidavit to be filed

  (2) On an application pursuant to subsection (1), the debtor shall file an affidavit setting out the following:

  • (a) the names and addresses of the debtor’s creditors and the amount the debtor owes to each creditor and, if any of them is related to the debtor, the relationship;

  • (b) a statement of the property the debtor owns or in which the debtor has any interest and of the value thereof;

  • (c) the amount of the debtor’s income from all sources, naming them, and, where the debtor is married and cohabiting with the spouse, or is in a common-law partnership, the amount of the income of the debtor’s spouse or common-law partner, as the case may be, from all sources, naming them;

  • (d) the debtor’s business or occupation and, where the debtor is married and cohabiting with the spouse, or is in a common-law partnership, the business or occupation of the debtor’s spouse or common-law partner, as the case may be;

  • (d.1) the name and address of the debtor’s employer and, where the debtor is married and cohabiting with the spouse, or is in a common-law partnership, the name and address of the employer of the debtor’s spouse or common-law partner, as the case may be;

  • (e) the number of persons dependent on the debtor, the name and relationship of each and particulars of the extent to which each is so dependent;

  • (f) the amount payable for board and lodging or for rent or as payment on home property, as the case may be; and

  • (g) whether any of the debtor’s creditors’ claims are secured and, if so, the nature and particulars of the security held by each creditor.

Marginal note:Duties of clerk

• 220 (1) The clerk shall

  • (a) file the affidavit referred to in subsection 219(2), giving it a number, and enter the particulars it contains in a register;

  • (b) on reading the affidavit and hearing the debtor,

    • (i) settle the amounts to be paid by the debtor into court and the times of payment thereof until all of the claims entered in the register are paid in full, and

    • (ii) enter in the register particulars of the amounts and times of payment so settled or, where applicable, enter in the register a statement that the present circumstances of the debtor do not warrant the immediate settling of any of those amounts or times; and

  • (c) fix a date for hearing any objections by creditors.

• Marginal note:Notice to be given

  (2) The clerk shall give notice of an application for a consolidation order to each creditor named in the affidavit filed in connection with the application, setting out in the notice

  • (a) the particulars of all entries made in the register with respect to the application, and

  • (b) the date fixed for hearing objections by the creditors to the application or to any of the entries made in the register in respect thereof,

  and the notice shall contain a statement that the creditor will, prior to the date fixed for hearing objections, be notified of any objections filed with the clerk pursuant to section 221 in connection with the application.

• Marginal note:Idem

  (3) The notice referred to in subsection (2) shall be served in the prescribed manner and the clerk shall enter in the register the date the notice was sent.

• Marginal note:Register

  (4) The register referred to in this section shall be separate from all other books and records kept by the clerk and shall be available to the public for inspection, free of charge, during the hours when the office of the clerk is open to the public.

Marginal note:Objection by creditor

• 221 (1) A creditor may, within a period of thirty days after the date of the sending of the notice of an application for a consolidation order pursuant to section 220, file with the clerk an objection with respect to any of the following matters:

  • (a) the amount entered in the register as the amount owing to him or to any other creditor;

  • (b) the amounts settled by the clerk as the amounts to be paid by the debtor into court, or the fact that no such amounts have been settled; or

  • (c) the times of payment of any such amounts, where applicable.

• Marginal note:Idem

  (2) The clerk shall enter in the register a memorandum of the date of receipt of any objection filed with him.

• Marginal note:Notice of objection

  (3) Where an objection has been filed by a creditor, the clerk shall forthwith, in the prescribed manner, give notice of the objection and of the time and place appointed for the hearing thereof to the debtor and to each creditor named in the affidavit filed in connection with the application specifying, where applicable, the creditor whose claim has been objected to under subsection (1).

Marginal note:Adding additional creditors

222 At the time appointed for the hearing of any objection in connection with a consolidation order, the clerk may add to the register the name of any creditor of the debtor of whom he has notice and who is not disclosed in the affidavit of the debtor.

Marginal note:Hearing of objections

• 223 (1) The clerk shall, at the time appointed for the hearing thereof, consider any objection in connection with a consolidation order that has been filed with him in accordance with this Part, and

  • (a) if the objection is to the claim of a creditor and the parties are brought to agreement or if the creditor’s claim is a judgment of a court and the only objection is to the amount paid thereon, he may dispose of the objection in a summary manner and determine the amount owing to the creditor;

  • (b) if the objection is to the proposed terms or method of payment of the claims by the debtor or that terms of payment are not but should be fixed, he may dispose of the objection in a summary manner and determine, as the circumstances require, the terms and method of payment of the claims, or that no terms be presently fixed; and

  • (c) in any case he may on notice of motion refer any objection to be disposed of by the court or as the court otherwise directs.

• Marginal note:Issue of order

  (2) After the conclusion of the hearing referred to in subsection (1), the clerk shall enter in the register his decision or the decision of the court, as the case may be, and issue a consolidation order.

Marginal note:Issue of consolidation order

224 Where no objection has been received within thirty days after the date of the sending of the notice of an application for a consolidation order pursuant to section 220, the clerk shall

• (a) make an entry in the register to that effect; and

• (b) issue the consolidation order.

Marginal note:Contents of consolidation order

• 225 (1) A consolidation order shall state the following:

  • (a) the name of and the amount owing to each creditor named in the register; and

  • (b) the amounts to be paid into court by the debtor and the times of payment thereof or, where applicable, that the present circumstances of the debtor do not warrant the immediate settling of any such amounts or times.

• Marginal note:Effect of order

  (2) A consolidation order

  • (a) is a judgment of the court in favour of each creditor named in the register for the amount stated therein to be owing to that creditor;

  • (b) is an order of the court for the payment by the debtor of the amounts stated therein and at the stated times; and

  • (c) bears interest at the rate which by law applies to a judgment debt arising from a judgment of the court that granted the order or at such other rate as may be prescribed by regulation.

Marginal note:Consolidation order not to be issued

• 226 (1) A consolidation order that does not provide for the payment in full of all the debts to which it refers within a period of three years shall not be issued unless

  • (a) all registered creditors consent thereto in writing; or

  • (b) the order is approved by the court.

• Marginal note:Deemed consent

  (1.1) Where a registered creditor does not give any response to a request for consent under paragraph (1)(a) within thirty days after receiving such a request, the creditor shall be deemed to have consented to the order.

• Marginal note:Referral to court

  (2) Any consolidation order referred to in subsection (1) shall be referred to the court for approval or otherwise by the clerk on notice of motion to any registered creditor who has not consented thereto in writing.