Port Authorities Management Regulations (SOR/99-101)

59.8 An amalgamation does not constitute a disposition of the property, rights and interests of an amalgamating port authority to the amalgamated port authority.

PART 6Liquidation and Dissolution

Interpretation

60 In this Part, the court having jurisdiction is the court in the place where the port authority has its registered office.

Certificate of Intent

• 61 (1) On the issuance of a certificate of intent to dissolve under subsection 55(1) of the Act and subject to the provisions of the certificate and section 62 of these Regulations, the port authority shall cease to carry on business except the business that is required for an orderly liquidation.

• (2) Subject to section 62, after the issuance of a certificate of intent to dissolve, the port authority shall

  • (a) without delay have notice of the certificate sent to each of its known creditors;

  • (b) without delay take reasonable steps to give notice of the certificate in each province where the port authority was carrying on business at the time the certificate of intent to dissolve was issued;

  • (c) proceed to collect its property, dispose of properties that are not to be distributed in kind, discharge all its obligations and do all the other acts required to liquidate its business; and

  • (d) after complying with paragraphs (a) and (b) and adequately providing for the payment or discharge of all its obligations, remit the proceeds of liquidation to Her Majesty in right of Canada in accordance with subsection 55(1) of the Act.

Cessation of Business and Powers

62 If a liquidator is appointed to carry out a liquidation of the assets of a port authority, the powers of the directors cease and vest in the liquidator, unless the liquidator or a court authorizes otherwise.

Application for Supervision of Liquidation

63 The Minister or any interested person may, at any time during the liquidation of a port authority, apply to a court for an order that the liquidation be continued under the supervision of the court as provided in this Part, and on that application the court may so order and make any further order it thinks fit.

Powers of Court

64 In connection with the dissolution or the liquidation and dissolution of a port authority, subject to the certificate of intent, a court may, if it is satisfied that the port authority is able to pay or adequately provide for the discharge of all its obligations, make any order it thinks fit including, without limiting the generality of the foregoing,

• (a) an order appointing or replacing a liquidator, with or without security, and fixing the remuneration of the liquidator, who, if the court so orders, may be a director or officer of the port authority;

• (b) an order appointing or replacing inspectors or referees, specifying their powers and fixing their remuneration;

• (c) an order determining that notice be given to any interested person or dispensing with giving notice to any person;

• (d) an order determining the validity of any claims made against the port authority;

• (e) an order, at any stage of the proceedings, restraining the directors or officers from

  • (i) exercising any of their powers, or

  • (ii) collecting or receiving any debt or other property of the port authority, or from paying out or transferring any property of the port authority, except as permitted by the court;

• (f) an order determining and enforcing the duty or liability of any present or former director or officer to

  • (i) the port authority, or

  • (ii) third parties, for an obligation of the port authority;

• (g) an order approving the payment, satisfaction or compromise of claims against the port authority and the retention of assets for that purpose, and determining the adequacy of provisions for the payment or discharge of obligations of the port authority, whether the obligations are liquidated, unliquidated, future or contingent;

• (h) an order disposing of or destroying the documents and records of the port authority;

• (i) on the application of a creditor, the inspectors or the liquidator, an order giving directions on any matter arising during the liquidation;

• (j) after notice has been given to all interested persons, an order relieving the liquidator from any omission or default on any terms that the court thinks fit and confirming any act of the liquidator;

• (k) subject to any restriction applicable to the port authority, an order approving any proposed interim or final distribution in money or in property; and

• (l) on the application of a director, an officer, a creditor or the liquidator,

  • (i) an order staying the liquidation on any terms and conditions that the court thinks fit,

  • (ii) an order continuing or discontinuing the liquidation proceedings, or

  • (iii) an order to the liquidator to restore to the port authority all its remaining property.

Duties of Liquidator

65 A liquidator shall

• (a) without delay after being appointed, give notice of the appointment to the Minister and to each claimant and creditor known to the liquidator;

• (b) without delay after being appointed, publish notice in the Canada Gazette and once a week for two consecutive weeks in a newspaper published in the place where the port authority has its registered office and take reasonable steps to give that notice in each province where the port authority carried on business, requiring any person who

  • (i) is indebted to the port authority to render an account and pay to the liquidator any amount owing at the day, time and place specified,

  • (ii) possesses property of the port authority to deliver it to the liquidator at the day, time and place specified, and

  • (iii) has a claim against the port authority, whether liquidated, unliquidated, future or contingent, to present particulars of the claim in writing to the liquidator not later than two months after the date of first publication of the notice;

• (c) without delay after being appointed, take into custody and control the property of the port authority;

• (d) without delay after being appointed, open and maintain a trust account for money received by the liquidator in the course of the liquidation;

• (e) keep accounts of the moneys of the port authority received and paid out in the course of the liquidation;

• (f) maintain separate lists of the creditors and other persons who have claims against the port authority;

• (g) if at any time the liquidator determines that the port authority is unable to pay or adequately provide for the discharge of its obligations, without delay apply to the court for directions;

• (h) deliver to the Minister and the court, if applicable, at least once in every 12-month period after appointment and, in addition, more often as the Minister or the court may require, the information required by section 36 of the Act and sections 34 to 38 of these Regulations; and

• (i) after the final accounts are approved under section 67, without delay remit the proceeds of liquidation to Her Majesty in right of Canada in accordance with subsection 55(1) of the Act.

Powers of Liquidator

• 66 (1) A liquidator may, subject to the certificate of intent,

  • (a) retain lawyers, notaries, accountants, engineers, appraisers and other professional advisers;

  • (b) bring, defend or take part in any civil, criminal or administrative action or proceeding in the name and on behalf of the port authority;

  • (c) carry on the business of the port authority that is required for an orderly liquidation;

  • (d) subject to any restriction applicable to the port authority, sell any property of the port authority by public auction or private sale;

  • (e) do all acts and execute any documents in the name and on behalf of the port authority;

  • (f) subject to any restriction applicable to the port authority, borrow money;

  • (g) settle or compromise any claims by or against the port authority; and

  • (h) do all other things necessary for the liquidation of the port authority and the distribution of its property.

• (2) A liquidator is not liable under these Regulations if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances to prevent a failure to fulfil their duties, including reliance in good faith on financial statements of the port authority, on the reports of experts and on information presented by officers or professionals.

• (3) If a liquidator has reason to believe that a person possesses or controls or has concealed, withheld or misappropriated property of the port authority, the liquidator may apply to a court for an order requiring the person to appear before the court on the day and at the time and place specified in the order and to be examined.

• (4) If the examination discloses that the person has concealed, withheld or misappropriated property of the port authority, the court may order the person to restore it to the liquidator or pay compensation for it.

Costs of Liquidation and Final Accounting

• 67 (1) Subject to any restriction applicable to the port authority, a liquidator shall pay the costs of liquidation out of the property of the port authority and shall pay or make adequate provision for all the claims against the port authority.

• (2) Within one year after being appointed and after paying or making adequate provision for all the claims against the port authority, the liquidator shall apply to the court for

  • (a) an approval of the final accounts of the liquidator and for an order permitting the remittance of the proceeds of liquidation to Her Majesty in right of Canada in accordance with subsection 55(1) of the Act; or

  • (b) an extension of time, setting out the reasons for the extension.

• (3) The liquidator shall give notice of intention to make an application under subsection (2) to the Minister, to any inspector appointed by the court and to any person who provided a security or fidelity bond for the liquidation, and the liquidator shall publish the notice in a major newspaper published in the place where the port authority has its registered office or as otherwise directed by the court.

• (4) If the liquidator fails to make the application, the Minister may apply to the court for an order requiring the liquidator to show cause why a final accounting and distribution should not be made.

• (5) If the court approves the final accounts rendered by the liquidator, the court shall make

  • (a) an order directing the custody or disposal of the documents and records of the port authority; and

  • (b) an order discharging the liquidator that is contingent on the liquidator, forthwith on the issuance of the order, sending a certified copy of it to the Minister.

Continuation of Actions

• 68 (1) Despite the dissolution of a port authority,

  • (a) a civil, criminal, administrative, investigative or other proceeding by or against the port authority before its dissolution may be continued as if the port authority had not been dissolved;

  • (b) a civil, criminal, administrative, investigative or other proceeding may be brought against the port authority within two years after its dissolution as if the port authority had not been dissolved; and

  • (c) any property that would have been available to satisfy a judgment or order if the port authority had not been dissolved remains available for that purpose.

• (2) Service of a document on a port authority after its dissolution may be effected by serving it on the Minister.

• (3) Despite the dissolution of a port authority, a person to whom any of the port authority’s property is distributed is liable to any other person claiming under subsection (1) to the extent of the amount received by that person on the distribution, and an action to enforce that liability may be brought within two years after the date of the dissolution of the port authority.

Unknown Claimants

• 69 (1) On the dissolution of a port authority, the portion of the property distributable to a creditor who cannot be found shall be converted into money and paid to Her Majesty in right of Canada.

• (2) The payment constitutes satisfaction of the debt or claim of the creditor.

• (3) If at any time a person establishes entitlement to any moneys paid to Her Majesty in right of Canada under these Regulations, the Receiver General shall pay an equivalent amount to the person out of the Consolidated Revenue Fund.

PART 7Offences and Penalties

70 A person who knowingly makes or assists in making a financial statement referred to in section 36 of the Act or paragraph 53(3)(a) or 65(h) of these Regulations is guilty of an offence if the financial statement

• (a) contains an untrue statement of a material fact; or

• (b) omits to state a material fact that is required or necessary in order to prevent a statement contained in the financial statement from being misleading in the light of the circumstances in which it was made.

71 A person referred to in section 70 is liable to a fine of not more than $5,000 in the case of an individual, and of not more than $50,000 in the case of a corporation.

Coming into Force

72 These Regulations come into force on March 1, 1999.