Winding-up and Restructuring Act

Marginal note:Inquiry into dividends and redemptions of shares

• 102.1 (1) Where a company that is being wound up under this Act has, within twelve months preceding the commencement of the winding-up, paid a dividend in respect of any share of the company, other than a stock dividend, or redeemed or purchased for cancellation any of the shares of the capital stock of the company, the court may, on the application of the liquidator, inquire into whether the dividend was paid or the shares redeemed or purchased for cancellation at a time when the company was insolvent, or whether the payment of the dividend or the redemption or purchase for cancellation of its shares rendered the company insolvent.

• Marginal note:Judgment against directors

  (2) The court may give judgment to the liquidator against the directors of the company, jointly and severally, in the amount of the dividend or redemption or purchase price, with interest thereon, as has not been paid to the company where the court finds that

  • (a) the transaction occurred at a time when the company was insolvent or the transaction rendered the company insolvent; and

  • (b) the directors did not have reasonable grounds to believe that the transaction was occurring at a time when the company was solvent or the transaction would not render the company insolvent.

• Marginal note:Criteria

  (3) In making a determination under paragraph (2)(b), the court shall consider whether the directors acted as prudent and diligent persons would have acted in the same circumstances and whether the directors in good faith relied on

  • (a) financial or other statements of the company represented to them by officers of the company or the auditor of the company, as the case may be, or by written reports of the auditor to fairly reflect the financial condition of the company; or

  • (b) a report relating to the company’s affairs prepared pursuant to a contract with the company by a lawyer, notary, an accountant, engineer or appraiser or other person whose profession gave credibility to the statements made in the report.

• Marginal note:Judgment against shareholders

  (4) Where a transaction referred to in subsection (1) has occurred and the court makes a finding referred to in paragraph (2)(a), the court may give judgment to the liquidator against a shareholder who is related to one or more directors or to the company or who is a director not liable by reason of paragraph (2)(b) or subsection (5), in the amount of the dividend or redemption or purchase price referred to in subsection (1) and the interest thereon, as was received by the shareholder and not repaid to the company.

• Marginal note:Directors exonerated by law

  (5) A judgment pursuant to subsection (2) shall not be entered against or be binding on a director who had, in accordance with any applicable law governing the operation of the company, protested against the payment of the dividend or the redemption or purchase for cancellation of the shares of the capital stock of the company and had thereby exonerated himself or herself under that law from any liability therefor.

• Marginal note:Directors' right to recover

  (6) Nothing in this section shall be construed to affect any right, under any applicable law governing the operation of the company, of the directors to recover from a shareholder the whole or any part of any dividend, or any redemption or purchase price, made or paid to the shareholder when the company was insolvent or that rendered the company insolvent.

• Marginal note:Onus

  (7) For the purposes of an inquiry under this section, the onus of proving

  • (a) that the company was not insolvent lies on the directors and the shareholders of the company; and

  • (b) in the case of the directors, that there were reasonable grounds to believe that the company was not insolvent when a dividend was paid or shares were redeemed or purchased for cancellation or that the payment of a dividend or a redemption of shares did not render the company insolvent lies on the directors.