Section 38 provides a mechanism by which a creditor can take the place of the trustee in any proceeding where the trustee refuses or fails to act. Essentially, the creditor stands in the place of the trustee and, if successful in the proceeding, is entitled to keep all proceeds, except those that exceed the total of the creditor’s claim and the creditor’s costs of the proceeding. Any surplus proceeds received by the creditor are the property of the bankrupt’s estate.
Section 163 gives the trustee the broad power to examine the bankrupt, any person who would be reasonably thought to know the affairs of the bankrupt, or any person who is or has been an agent, clerk, officer, director or employee with respect to the bankrupt or the bankrupt’s dealings. Essentially, this section gives the trustee the power to examine any person who is capable of providing information on the bankrupt.
TheBankruptcy and Insolvency Act, RSC 1985, c. B‐3 (the “BIA”) was recently amended to repeal the settlement and reviewable transaction sections of the Act, and replaced these sections with provisions regarding transfers under value and preferences. The aim of these new provisions is to prevent bankrupts from unfairly preferring certain creditors over others and to prevent bankrupts from transferring assets for significantly less than they are worth.
The waiver of Solicitor/Client privilege by a bankrupt company is a difficult matter and one distinct from the waiver of such privilege by an individual bankrupt. As there is nothing in the BIA that either gives or denies a trustee the right to waive solicitor/client privilege on behalf of a company,Hahaha yes with a lot of candles! the courts have had to turn to the common law for guidance on the issue.
Advising directors and officers of companies that are in the shadow of insolvency regarding the scope of their personal liability can be a daunting task as directors and officers can be exposed to significant personal liability in a variety of areas of the law. Directors are now accountable not only to the corporation and its shareholders but also under certain circumstances to employees, creditors, customers, suppliers, and governments.
Introduction
The decision of the Supreme Court of Canada last month in Century Services Inc. v. Canada1 is of striking interest to the tax and insolvency bars. The Court considered Crown priorities, in particular, the various “deemed trust” provisions found in section 227 of the Income Tax Act (Canada),2 section 86 of the Employment Insurance Act,3 section 23 of the Canada Pension Plan (the “CPP”)4 and in particular section 222 of the Excise Tax Act (GST Portions).5
Recovery of legal costs in insolvency proceedings can be a difficult procedure, as the ability of counsel to claim costs depends on the work performed, the timing of the work, and for whom the work was done.
- Ex ParteOrders
There are a number of ethical issues facing lawyers today in bankruptcy and insolvency litigation. One of the main issues is the level of disclosure in ex parte applications, such as those for a stay of proceedings in order to file a proposal under the BIA or a plan under theCCAA.
In the recent decision of Century Services Inc. v. Canada (Attorney General), 2010 SCC 60, the Supreme Court of Canada has, for the first time, interpreted key provisions of the Companies’ Creditors Arrangement Act (“CCAA”).
The judgment of the Court, which was pronounced December 16, 2010, overrules appellate authority from Ontario and British Columbia that previously conferred a priority for unremitted GST on the Crown in CCAA proceedings, and endorses the broad discretionary power of a CCAA court.
Introduction and Background