Tag: bankruptcy law

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BANKRUPTCY DISCHARGE ORDER: OBSESSED CREDITOR LOSES APPEAL OF THE DISCHARGE ORDER

bankruptcy dischargeWe hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

If you would prefer to listen to the audio version of this Brandon Blog, please scroll to the very bottom and click play on the podcast.

What does bankruptcy discharge mean in Canada?

A bankruptcy filing is a form of insolvency process under Canadian bankruptcy law available to individuals and businesses. Bankruptcy deals with a person’s or company’s debt load and assets. After performing a detailed initial assessment, the licensed insolvency trustee will be in a position to advise the debtor if they will be better serviced through a restructuring process as an alternative to bankruptcy (consumer proposal or Division I Proposal for individuals, Division I Proposal or Companies’ Creditors Arrangement Act bankruptcy protection for companies) with creditors, or whether the debtor will be better served filing for bankruptcy.

The final piece of any bankruptcy process for an individual is the bankruptcy discharge. Individuals who go bankrupt are entitled to a discharge from bankruptcy. Companies are only entitled to one if every bankruptcy claim filed is paid in full, with interest. Because this never happens, companies do not receive a bankruptcy discharge. It is not impossible, but for this reason, it really does not happen.

If you are thinking about filing an assignment in bankruptcy, then you may be wondering about the bankruptcy discharge process and how it will affect you. Many people think their debts are eliminated at the moment of their bankruptcy filing.

This is incorrect. It is the bankruptcy discharge that will remove all (with certain limited exceptions) of your unsecured debts from your life and will result in letting you move forward with a clean slate. In this Brandon Blog, I discuss the bankruptcy discharge process and a recent decision of the Supreme Court of British Columbia hearing an appeal to the decision of the Master sitting as bankruptcy registrar on a bankrupt’s application for discharge.bankruptcy discharge

Bankruptcy discharge and its consequences for the bankrupt

When you are granted a bankruptcy discharge, this means that those debts caught by your bankruptcy are no longer your responsibility. This means that every action from creditors or the collection agencies they have retained stops trying to collect the debt obligations.

As I previously mentioned, most almost all debts are wiped off your slate when you receive your discharge from bankruptcy. The kinds of debts that remain even after a bankruptcy discharge are:

  • spousal or child support payments;
  • fines or penalties mandated by the court;
  • claims arising from fraud or fraudulent breach of trust;
  • student loan debt if less than 7 years have passed since the bankrupt stopped being a part-time or full-time student.
  • any kind of financial debts that are secured against your assets, such as a home mortgage or automobile financing, are not discharged as a result of your bankruptcy discharge.

These sorts of financial debts endure after bankruptcy as they are not released. The individual will be required to continue paying those financial obligations according to their terms. All various other financial obligations are discharged and do not have to be paid.

What are the types of bankruptcy discharge?

If there is no Trustee opposition or creditor opposition to a bankrupt’s application for discharge, and the bankrupt has fulfilled all of their duties of a bankrupt, in most situations, the licensed insolvency trustee can issue an automatic discharge which provides the bankrupt with an absolute discharge from bankruptcy.

If there is an opposition or the bankrupt meets one of the criteria that does not allow for an automatic discharge (such as the bankruptcy process finding the bankrupt a high income tax debt situation), there must be a discharge hearing in court which is heard by a Master of the court sitting as the registrar in bankruptcy. There are 4 types of bankruptcy discharge and a 5th bankruptcy outcome is also possible. They are:

  1. absolute – an absolute discharge means the bankrupt is entitled to an immediate discharge. This can be given by the licensed insolvency trustee in the bankruptcy estate handling the bankruptcy administration if the bankrupt has fulfilled all of their duties and there is no trustee or creditor opposition;
  2. conditional discharge – can get a discharge after meeting one or more conditions. The most common type of condition of discharge involves paying a sum of money to the licensed insolvency trustee;
  3. suspended – the bankrupt’s discharge will take place at a later date and may very well be combined with either an absolute bankruptcy discharge or conditional bankruptcy discharge;
  4. refused– the court refused to grant a bankruptcy discharge probably because the bankrupt has failed to provide full disclosure or perform other bankruptcy duties; or
  5. “no order”– the Trustee advises the court that regardless of the time period that has passed, the bankrupt has actually not satisfied every one of his or her obligations and the bankrupt has actually failed to reply to the Trustee’s demands for information. In this situation, when the “no order” order is provided, the licensed insolvency trustee is at liberty to seek its discharge. Once the bankrupt person has actually fulfilled the requirements set by the court, the bankrupt can re-apply for a discharge hearing by the court.bankruptcy discharge

For a first-time bankrupt with no surplus income who fulfills of their duties, including attending the 2 mandatory credit counselling sessions, they are entitled to their bankruptcy discharge after a bankruptcy period of 9 months from the date of bankruptcy.

If this is your second bankruptcy a discharge will not be available after 9 months. A 2nd bankruptcy lasts for a minimum of 24 months if you do not have any surplus income payments to make to the Trustee. If you have surplus income, a second-time bankrupt must make those monthly payments for 36 months before they are entitled to a bankruptcy discharge.

For a 3rd or subsequent bankruptcy, the timeline is the same as the 2nd time bankrupt. However, it is much more possible that there will certainly be resistance to the discharge by the Trustee or the creditors. The court can also impose whatever conditions it sees fit.

Creditor objects to the decision of the Master on bankrupt’s application for discharge

On July 9, 2021, the decision in Hanlon (Re), 2021 BCSC 1348 in the Supreme Court of British Columbia was released. This was an appeal from an order by the bankruptcy registrar of the Supreme Court of British Columbia dated April 28, 2021 in Hanlon (Re), 2021 BCSC 800, VA B190492. This is an appeal under s. 192(4) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (BIA), from an order of a master of that Court, sitting as a registrar in bankruptcy, granting the bankrupt, Mr. Hanlon, a bankruptcy discharge that was made conditional on his paying $7,500 to the Trustee.

The appellant, Ms. Johnson, is one of Mr. Hanlon’s creditors. She states that the registrar erred in approving the discharge on those terms. If the appeal is allowed, she looks for an order refusing Mr. Hanlon’s application for a discharge, with leave to apply again in two years, or alternatively, giving a discharge conditional on his paying $50,000. The appeal is opposed by both Mr. Hanlon the bankrupt, and the Trustee. The appeal was heard by Judge Milman, Canada’s bankruptcy legislation, the BIA states that a person dissatisfied with an order or decision of a registrar can appeal that decision to a judge of that court who in that capacity is sitting as a bankruptcy judge.

The alleged errors made by the registrar in the making of the order of conditional discharge

Ms. Johnson argued that the registrar made certain errors in granting the conditional bankruptcy discharge order. Ms. Johnson says that in granting the bankruptcy discharge on those terms, the registrar erred as follows:

  • in concluding that Mr. Hanlon had complied with the injunction resulting from Ms. Johnson’s original successful litigation against Mr. Hanlon when he had not;
  • in falling short to take into account Mr. Hanlon’s refusal to agree with the accuracy of the trial judge; and
  • in failing to consider Mr. Hanlon’s real income earning potential.bankruptcy discharge

The standard of review on such an appeal

There is a standard of review on such an appeal from an order of a bankruptcy discharge hearing. S. 192(1) of the BIA gives the bankruptcy registrar the authority to, amongst other things, grant orders of discharge. S. 192(4) of the BIA allows a party dissatisfied with an order or decision of a
registrar may appeal it to a judge.

In granting an order of discharge in the bankruptcy process, the registrar is exercising judicial discretion. If the registrar has acted reasonably, the judge should not set it aside or ignore it. Further, if an appeal from a bankruptcy discharge order is based on alleged errors in findings of fact, the court will not interfere if there is no overriding error in the findings of fact and there is evidence from which the findings of fact could be made. Discretionary decisions may, naturally, be overturned if the registrar has materially misinterpreted the law or made an error in respect of the facts underlying the use of that discretion.

When a registrar’s decision in a bankruptcy discharge hearing imposes conditions, those conditions must be realistic for the bankrupt to perform in a reasonable period of time. Where the amount ordered was unrealistic and the bankrupt’s discharge is conditional on making additional payments, the appeal court did hold that results in an error of law and the appellate judge can either substitute the conditions or refer the matter back to the registrar for reconsideration.

The judge’s decision on the appeal from the registrar’s bankruptcy discharge order

The judge dismissed the appeal finding there were no overriding errors made by the registrar. With respect to the amount of $7,500 ordered as a condition of discharge from bankruptcy, the judge found as follows:

Ms. Johnson says that the registrar did not consider Mr. Hanlon’s untapped earning capacity and instead concentrated practically completely on her arguments of his potential inheritance. She suggests that Mr. Hanlon could be earning more than he is. In her opinion, he could earn more to enable him to make a settlement of $50,000 rather than the $7,500 that was ordered.

Mr. Hanlon’s real historic earnings offered adequate assistance for the registrar’s verdict that he was incapable of paying any more than the $7,500 that she ordered for him, did not have the financial prospects himself to do so and without getting personal loans from family members to help him with that. That was properly decided by the registrar based on the evidence before her.

The judge found that there is no merit in this or any other of the grounds of appeal. He found no error in the registrar’s decision, and having found the discharge condition that she imposed to have been reasonable in the circumstances, he dismissed the appeal.

Bankruptcy discharge summary

I hope that you found this bankruptcy discharge Brandon Blog interesting and that you now have a good appreciation for the process at the end of the administration for a person who files for bankruptcy and the considerations of the court if someone appeals a bankruptcy discharge order. Problems will arise when you are cash-starved and in debt. There are several insolvency processes available to a person or company with too much debt.

If you are concerned because you or your business are dealing with substantial debt challenges, you need debt help and you assume bankruptcy is your only option, call me.

It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties with debt relief options as alternatives to bankruptcy. We can get you the relief you need and so deserve. Our professional advice will create for you a personalized debt-free plan for you or your company during our no-cost initial consultation.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We understand that people and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do as we know the alternatives to bankruptcy. We help many people and companies stay clear of filing an assignment in bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need to become debt-free, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost bankruptcy consultation.bankruptcy discharge

We hope that you and your family are safe, healthy and secure during this COVID-19 pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

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Brandon Blog Post

BANKRUPTCY FILINGS CANADA: THE SENSELESS TOP 12 MISTAKES TO AVOID WHEN CONSIDERING FILING FOR BANKRUPTCY

We hope that you and your family are safe, healthy and secure during this coronavirus pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

Bankruptcy filings Canada introduction

It’s not easy to admit that you’re in over your head with debt. One way Canadians can fix their debt problems is through bankruptcy filings Canada. Availing yourself of an insolvency process can feel like an enormous weight off your shoulders. Unfortunately, that relief is often short-lived if did one or more of the things you should not do before taking the plunge into the bankruptcy process.

In this Brandon’s Blog, I discuss the common bankruptcy mistakes people make before they seek the advice of a licensed insolvency trustee (formerly called a bankruptcy trustee) (Trustee). Stay away from these common mistakes and you should have a much easier time returning to a solvent and stress-free life.

What should you not do before filing bankruptcy?

If you’re considering filing for bankruptcy, be aware that there are some things you should not do, and others you should do, to protect yourself and your assets. The bankruptcy filings Canada mistakes I am going to explain in this Brandon’s Blog are:

  • Trying to hide assets from your creditors:
    • Transferring assets to a third party (such as a family member or friend).
    • Disposing of assets, for example, by giving them away or selling them for far below their fair market value.
    • Failing to declare all of your assets or all of your liabilities on your sworn Statement of Affairs under penalty of perjury.
  • Staying clear of loading up on credit card debt or other unsecured debts.
  • Paying off family debts a short period of time before declaring bankruptcy.
  • Waiting too long to consult with a Trustee.
  • Taking extra taxes out of your paycheque.
  • Cashing in or making early withdrawals from retirement accounts.
  • Refinancing your mortgage or increasing lines of credit against your real estate to settle unsecured financial obligations.
  • Keeping debt that you cannot afford to.
  • Making the wrong type of filing.

By avoiding the things you should not do, you will be the honest but unfortunate debtor. That is the type of person that the Canadian bankruptcy law is meant to help.

Common mistakes: Trying to hide assets

If you’re thinking about declaring bankruptcy because you’re overwhelmed by your debt, it’s important to know that you cannot hide assets from creditors during the bankruptcy process. There are a number of ways people try to do this.

The most common ones in bankruptcy filings Canada are:

  • Transferring assets to a third party (such as a family member or friend) on the eve of bankruptcy.
  • Disposing of assets, for example, by giving them away or selling them for far below their fair market value.
  • Failing to declare all of your assets or all of your liabilities on your sworn Statement of Affairs.

It’s also important to understand that if you choose to hide assets from the court and your creditors, it’s likely that they’ll find out—and they will not be happy when they do!

Transfers of assets or disposing of them for less than fair value is caught under the category of transfers at undervalue. The Trustee can attack any transfers at undervalue and will be successful in getting a judgement against the party you made the transfer to.

A transfer at undervalue is defined in section 2 of the Bankruptcy and Insolvency Act (Canada) (BIA) as disposing of property or providing services for which either no value is obtained by the debtor/bankrupt or for which the value gotten by the debtor/bankrupt is obviously less than the fair market value of the consideration handed over by the debtor. You certainly won’t be doing your friend or family member any favours by having done this.

Bankruptcy filings Canada: Debtor trying to hide assets usually doesn’t work and could be counterproductive due to exemption categories

Failing to declare assets may or may not work. If you are caught, again, this spells trouble. The Trustee is required to perform an investigation and many times there are tell-tale signs that not all assets have been declared. I have many times found when reviewing a bankrupt’s bank statements, regular automatic withdrawals for life insurance, yet no life insurance policy or CSV in a life insurance policy was declared. The same goes for vehicle insurance premiums.

Contrary to popular belief, many times when a person tries to scam the bankruptcy filings Canada system, it is not a very sophisticated one. In fact, most times they are just plain dumb and the person is exposed.

The irony is that if they listed all of their assets, the ones they tried to hide may very well have fit under one of their bankruptcy exemptions. Perhaps the insurance policy was a term life policy, so it had no CSV. Or, when the policy was first taken out, the person designated a spouse or child as their designated beneficiary.

In that case, the entire CSV or the proceeds from the life insurance policy if the bankrupt died, would be exempt from seizure by the Trustee. The same is true with a vehicle. Perhaps their equity in the vehicle would fit under their bankruptcy exemption; either in its own right or after taking into account any loan secured against the vehicle.

So with the possibility of no loss of the asset due to a bankruptcy exemption, the person has committed a bankruptcy offence. Or, the asset involved in the transfer under value could have been saved in some way if the debtor had only made full disclosure to the Trustee before filing. Many times we can help a person perform a successful restructuring consumer proposal and keep their assets, rather than losing them in bankruptcy. It is possible to avoid bankruptcy and not commit a bankruptcy offence just by being open and honest and getting good advice ahead of time.

bankruptcy filings canada
bankruptcy filings canada

Common mistakes: Do Not Incur Any Additional Debts like maxing out credit cards before filing bankruptcy

You’re probably already knee-deep in debt and have been for quite some time. Maybe you’ve tried to get out from under it by yourself but it just hasn’t worked. It doesn’t mean you’re a bad person, it just means you need a fresh start, and that’s what a Trustee can do for you. If you’re thinking about filing any type of bankruptcy under the BIA, the first thing you need to do is stop incurring new debt.

The last thing you need is more debt and more debt collectors calling you. As well, you may very well be committing a bankruptcy offence, especially if you take on the new debt within 3 months of the date of bankruptcy. You were probably insolvent at that time, and taking on more debt, under those circumstances, is a bankruptcy offence.

What are the ramifications? Your Trustee will have to oppose your discharge and the creditor(s) who realize that their debt was further run up when you knew, or ought to have known, that you were going bankrupt will also oppose.

So especially as a first-time bankrupt, instead of possibly going through the bankruptcy process unscathed and discharged in as early as 9 months, you will be undischarged bankrupt perhaps for years and then face the potential of harsh repayment conditions in order to get a bankruptcy discharge. It really isn’t worth it.

Common Bankruptcy mistakes: Do Not Repay Relatives or Insiders

The BIA is a federal law that governs bankruptcy and insolvency in Canada. This Act is a comprehensive piece of legislation that is meant to protect both creditors and debtors while providing the tools needed for a debtor to start over with a clean slate.

Bankruptcy filings Canada are administered under the Canadian bankruptcy law has rules and regulations regarding how you can file and proceed with a bankruptcy application. One of them is that you are not allowed on the eve of bankruptcy to prefer any of your creditors by repaying some, but not others. No one, and especially, your relatives and insiders, should be repaid right before you are declaring bankruptcy.

The Trustee is required to review your financial history including looking at your bank statements and will no doubt find the preference payments. Making preference payments is a bankruptcy offence and will negatively affect your ability to get a discharge from bankruptcy.

Bankruptcy filings Canada: Waiting too long for consultations with Trustees

The question of whether or not you should file for bankruptcy is a difficult one and should be taken seriously. If you’ve just received a notice of civil action from a creditor, or if you’re worried about your upcoming income tax bill, it is time to speak with an experienced Canadian Trustee to discuss your options.

Before you jump into filing bankruptcy, however, it’s important to take a step back and consider the consequences. It may be that filing for bankruptcy is the wrong move for you. If you meet with a Trustee at the first sign of trouble, rather than waiting until you are up against the time crunch of an impending deadline, the Trustee may be able to recommend other options for you.

One of those options is filing a consumer proposal to successfully perform a government-approved debt settlement plan and avoid bankruptcy. The earlier you consult with a Trustee, the more options and flexibility you have.

bankruptcy filings canada
bankruptcy filings canada

Huge bankruptcy mistake: Taking extra taxes out of your paycheque

When people do bankruptcy filings Canada, they have more financial obligations than your typical income can manage. Among the reductions from your gross pay is the income tax. It’s unpreventable. When you apply for bankruptcy, one of your financial obligations is probably income tax debt owed to Canada Revenue Agency (CRA).

Just how much in added income tax deductions can you stand not to get in your take-home pay when you are currently insolvent? Most likely none. It is more important to have the cash to pay for rent and food.

So should you take extra taxes out of your paycheque before filing bankruptcy? I say no.

A mistake in bankruptcy: Cashing in or making early withdrawals from retirement accounts

The last thing you want to do in advance of bankruptcy is to cash in a retirement account such as your RRSP. In fact, doing so could cost you dearly. Here’s what you need to know. In a word, “no.” That’s the answer to the question of whether debtors should take money out of their retirement account to pay bills. And it’s the best advice for anyone, but particularly for people who are in the throes of bankruptcy filings Canada.

There are three main reasons for this. First, if you have set up your RRSP with your spouse or child as the beneficiary, then in Ontario, your RRSP is exempt from seizure. There is an RRSP issue when it comes to bankruptcy. Any contributions you made within 12 months of filing for bankruptcy must be paid into your bankruptcy estate. You don’t need to withdraw those funds from your RRSP to do so. You just need to make the payments into your bankruptcy estate. The source of those funds do not have to be from the RRSP.

Second, when you cash in all or a portion of your RRSP, income tax must be deducted at source. So you lose a significant amount off the top. What you are left with may not be enough to fully repay all your debts and help you avoid falling back into unmanageable debt in the future.

Third, you probably will never have enough working years left to make enough contributions back into a retirement plan to make up for what you have lost. You will be sacrificing further retirement payment plan payments when you did not need to cash in your plan in the first place.

Fortunately, your retirement funds are generally protected from loss in bankruptcy. So, why ask for this kind of trouble?

Bankruptcy filings Canada: What debts are not wiped out through bankruptcy?

Unsecured debt is a financial term that describes any loan, credit card or other debt that is not secured against collateral. In other words, it is debt that is not backed by an underlying asset that can be seized in the event of a default.

That means that if you don’t repay the debt – or if you decide to use the money for something else – there is no asset for the creditor to come after. Bankruptcy is a remedy available to the debtor to discharge unsecured debt.

A common misconception is that bankruptcy will result in a loss of the home you’ve worked so hard for; this is not necessarily so. The Trustee is entitled to the debtor’s equity in the home. Not the home itself. There is a difference.

It should be noted that the courts do not allow you to intentionally strip yourself of your assets. However, it is possible to strip yourself of these assets by making a bad decision in the midst of your financial crisis. If you refinanced your mortgages or increased lines of credit against your real estate to settle unsecured financial obligations, this is a mistake of bankruptcy.

First, the Trustee and your creditors will want to know what you did with any spare cash that you received coming out of the refinancing. As I described above, trying to hide assets is not a smart strategy.

Second, you have now turned unsecured debt into secured debt. The unsecured debt could have been settled for less than 100 cents on the dollar through a consumer proposal or discharged in bankruptcy. Now it is debt that cannot be compromised; it can only be repaid in full.

Third, what if your income in the future is not enough to make the necessary payments on this secured debt? Now you are at risk of having your home seized, notwithstanding you received your discharge from bankruptcy filings Canada.

Fourth, perhaps the refinancing should have been done in conjunction with advice from the Trustee, so, it could be used in part to fund a consumer proposal. By having done the refinancing and spending the money before filing, you have now lost that opportunity.

So having that secured debt in bankruptcy was not a smart move. It was a big mistake.

bankruptcy filings canada
bankruptcy filings canada

Bankruptcy filings Canada: Not sufficiently exploring self-help options

It’s all too easy to get into debt, but if you catch things early, it’s also easy to get out from under it. All it takes is a realistic plan for paying off your debts, and a commitment to sticking to it. If you can do that, you’ll be surprised how quickly your debt can disappear.

The first step is to figure out what you owe – and to whom. If you owe money to several creditors, you’ll need to prioritize them. The most likely to accept a deal are those that are smaller and charge a reasonable interest rate. You may be surprised at how many deals you can cut.

Speak to your accountant, your lawyer, your financial adviser and even a Trustee. You may find that your situation is not as bad as you thought and through some careful analysis, planning, budgeting and behaviour changes, you can eliminate your debt using a self-help remedy.

There are many unscrupulous debt-settlement or debt-relief companies who try to scare you and then after they do, they make all sorts of great-sounding promises that they will not be able to keep. the reality is that they just want to snag you so you can pay them high fees to do what you can do on your own. Do not fall for their tricks.

If everyone made sure that they fully explored all their self-help options first, many could avoid bankruptcy filings Canada altogether.

Bankruptcy filings Canada: Making the wrong type of filing

If you have reached a point where you feel you can no longer control your finances, one of the first things you should do is consult a Trustee. Making the wrong type of bankruptcy filing is a big mistake and will only make the situation worse, but with the right advice, it is easy to find the right solution.

The most common type of personal insolvency filing is a consumer proposal. A consumer proposal allows you to work out a payment plan with your creditors that you can actually afford. This allows you to eliminate all your debt without filing bankruptcy. In a no-cost initial consultation with a Trustee, you will discuss what is the right type of filing for your situation.

Bankruptcy filings Canada summary

I hope that you found the question posed in this bankruptcy filings Canada Brandon Blog. If you are concerned because you or your business are dealing with substantial debt challenges and you assume bankruptcy is your only option, call me. It is not your fault that you remain in this way. You have actually been only shown the old ways to try to deal with financial issues. These old ways do not work anymore.

The Ira Smith Team utilizes new modern-day ways to get you out of your debt difficulties while avoiding bankruptcy. We can get you the relief you need and so deserve.

The tension put upon you is big. We know your discomfort factors. We will check out your entire situation and design a new approach that is as unique as you and your problems; financial and emotional. We will take the weight off of your shoulders and blow away the dark cloud hanging over you. We will design a debt settlement strategy for you. We know that we can help you now.

We understand that people and businesses facing financial issues need a realistic lifeline. There is no “one solution fits all” method with theIra Smith Team. Not everyone has to file bankruptcy in Canada. The majority of our clients never do. We help many people and companies stay clear of bankruptcy.

That is why we can establish a new restructuring procedure for paying down debt that will be built just for you. It will be as one-of-a-kind as the economic issues and discomfort you are encountering. If any one of these seems familiar to you and you are serious about getting the solution you need, contact the Ira Smith Trustee & Receiver Inc. group today.

Call us now for a no-cost consultation.

We will get you or your business back up driving to healthy and balanced trouble-free operations and get rid of the discomfort factors in your life, Starting Over, Starting Now.

We hope that you and your family are safe, healthy and secure during this coronavirus pandemic.

Ira Smith Trustee & Receiver Inc. is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

bankruptcy filings canada
bankruptcy filings canada
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Brandon Blog Post

FILE BANKRUPTCY IN CANADA ONLINE: OUR COMPLETE GUIDE ON HOW TO FILE BANKRUPTCY ONLINE

We hope that you and your family are safe and healthy.

The Ira Smith Trustee Team is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

File bankruptcy in Canada online introduction

People have been asking us recently, “Can I file bankruptcy in Canada online?”. The most honest answer is yes, just not all alone with your computer and internet connection. Doesn’t sound very definitive, does it? That is because you cannot file bankruptcy yourself.

The only one the federal government authorizes in Canada to do bankruptcy filings is a licensed insolvency trustee (formerly called a bankruptcy trustee or a trustee in bankruptcy) (Trustee). The process itself requires anyone experiencing financial problems either themselves or with their company, needs to meet with a Trustee for an initial consultation.

However, since the onset of the COVID-19 pandemic and the lockdowns that have accompanied it since March 2020, the way a Trustee meets with people considering bankruptcy has changed. It has essentially gone online given the current operating environment. I will explain what I mean and how it might help you with your individual situation.

Can I file bankruptcy in Canada online?

Virtually anything and everything can be done online. The lockdown has increased our use of online purchasing. Whether it is clothes, office supplies, or toilet paper, it can all be ordered online and shipped to our homes. The taxi industry has been under assault for some time now from both Uber and Lyft.

The internet also includes a wealth of knowledge on thousands of different subjects. Financial topics are no exception. I find that anyone contacting me who is struggling with their, or their company’s financial problems, debts and paying their bills, including credit card bills, have already looked online for information and help to try to recover for their financial future.

Although people may not understand everything about insolvency and bankruptcy with all its nuances, which is to be expected, callers are definitely more educated in options for help in dealing with their secured creditors, unsecured creditors and different types of debts – both secured debt and unsecured debt.

So nowadays, everyone expects that you can do everything online, including the ability to file bankruptcy in Canada. This is true for people who think bankruptcy might be a solution for them. They are curious to understand if they can declare bankruptcy online. It is no longer just a bankruptcy in-person system.

file bankruptcy in canada
file bankruptcy in canada

How the coronavirus pandemic pushed bankruptcy online

The bankruptcy law in Canada is a federal statute. So the Canadian government supervises the administration of the insolvency process in Canada through the Office of the Superintendent of Bankruptcy Canada (OSB). On March 13, 2020, as a result of COVID-19, the OSB provided guidance to Trustees about how elements of the process for filing bankruptcy in Canada have changed. The document issued by the OSB is called Temporary Guidance for LITS During the COVID-19 Pandemic.

In that guidance, the OSB pushed the Canadian insolvency system as close to how can you file bankruptcy online. The only thing you still cannot do is file bankruptcy online yourself.

There was great growing concern in Canada about COVID-19. Insolvency practitioners had to take action to reduce in-person meetings. The OSB supported the Trustee community in these initiatives while keeping the stability of Canada’s insolvency system.

The OSB encouraged Trustees to make use of the considerable flexibilities that exist in the OSB’s Directives when determining which measures may be appropriate, in light of the pandemic.

To allow for the necessary social distancing, while still allowing people to file bankruptcy in Canada, the OSB advised the Trustee community:

  • Assessment of a person’s or company’s financial situation – Trustees are allowed to make use of techniques besides in-person meetings. The OSB recognized the COVID-19 pandemic as a remarkable circumstance.
    • Trustees did not need to get separate approval to conduct assessments making use of techniques aside from in-person. Where a video conference is not feasible, evaluations and discussions about a person’s or company’s debt situation may be carried out through a mix of telephone discussion and email.
    • In these assessment meetings, we discuss various debt relief options and alternatives to bankruptcy to avoid bankruptcy. We talk about credit counselling sessions, debt consolidation, debt settlement, various financial management techniques. We even discuss is a debt consolidation loan a realistic prospect?
    • Then we move on to the insolvency remedies of a consumer proposal for financial reorganization and debt settlement, corporate financial reorganization, personal bankruptcy or corporate bankruptcy. Whatever is appropriate. Then we give the person our recommendations and help them pick the best solution for them. The aim is always to avoid bankruptcy, wherever possible.
  • Insolvency financial counselling – Trustees and the accredited credit counsellors in their office are allowed to give financial management counselling via video conferencing. The OSB also allowed for credit counseling over the telephone, when video conferencing is not feasible. That is how I have been doing each credit counselling session and it has been working very well.
  • Meeting of Creditors – The Chair of the meeting is now allowed to hold creditors’ meetings either by video or conference call. The Chair can count on the representations by those in attendance to confirm their identity. It is mainly the unsecured creditors who are interested in the meeting of creditors.
  • Oaths and Signatures: Filing for bankruptcy and the bankruptcy process, involves bankruptcy forms. We are now urged to trade bankruptcy paperwork using e-mail. Trustees also explain to anyone filing bankruptcy, be it personal bankruptcy or corporate bankruptcy, using video conferencing.
  • This also the case for a consumer proposal filing. So even though we are not sitting in the same room as the person, we give the debtor the required support to explain the bankruptcy forms by using Zoom, FaceTime or over the phone.

What I do for taking oaths is that I confirm the person’s name and ask them to hold up their birth certificate or driver’s licence to their webcam or mobile phone. I also watch them sign the official bankruptcy documents. Then, I ask them to scan everything, including the identification they used, email it to me right away and then put the originals in the regular Canada Post mail.

So far, this has worked quite well. It has allowed people to file bankruptcy in Canada even during a pandemic. It has worked so well, we are now helping people and entrepreneurs looking for debt relief options who otherwise could not travel to our office. They would not travel to see us in person because although they are in Ontario, they are not in the Great Toronto Area.

file bankruptcy in canada
file bankruptcy in canada

Trustees already use an online bankruptcy filing system

Once the Trustee receives the documents by email from the person, they then turn to the electronic online bankruptcy filing system. It is called the E filing system. The Trustee can upload certain computer files into the E filing system, to tell the OSB all the information it needs to issue the Certificate of Appointment.

It is the same system across the country, regardless of what province you are in when someone wants to file bankruptcy in Canada. When the OSB issues the Certificate, that is the moment when a person or company officially becomes bankrupt and the Trustee is appointed.

This same E filing system is used also for all filings. Things like a consumer proposal, corporate receivership and corporate restructuring filings are also uploaded through the same online portal.

File bankruptcy in Canada: The rest of the process is the same as before

Once the type of online bankruptcy or consumer proposal filing is made to help you with the debt solutions you need, the rest of the process is the same. How bankruptcies work in Canada from this point on is not really different, other than as stated above, the two mandatory counselling sessions are done by either video or telephone meeting. Also, the effect on someone’s credit report is the same.

To find out the information on how the overall process works when you file bankruptcy in Canada, take a look at my Brandon’s Blog – HOW TO FILE FOR BANKRUPTCY IN CANADA: PERSONAL BANKRUPTCY MODUS OPERANDI. That will give you a very good read on the entire process.

File bankruptcy in Canada online: A word of warning

A word of caution for you. Bear in mind at the beginning I told you that only a Trustee is licensed to do any insolvency filing in Canada. You should understand that to file bankruptcy in Canada or file a consumer proposal online in Canada with someone that is not licensed by the federal government as a Trustee isn’t a choice.

You must be aware of fake organizations, firms, or service providers that attempt to trick people right into believing they can do any kind of insolvency filing for you. This includes anyone wanting to file bankruptcy in Canada.

Sadly, there are many debt consultant bankruptcy scam artists that state that they can help you do a debt settlement for you for a fee. DO NOT think of them under any circumstances. All they do is charge you for the first bankruptcy assessment of a person’s financial situation that a Trustee will do for you at no cost.

Then they try to offer you more items that the state will certainly help improve your credit score. This may also include giving you a high-interest rate loan but holding back all the cash to make the monthly payments out of until gone. Then when they cannot sell you any more products, they walk you down the block to file with a Trustee either to do a consumer proposal or to file bankruptcy in Canada.

Do not fall for these scammers that make it seem like they can file bankruptcy in Canada for you.

File bankruptcy in Canada summary

I hope you have enjoyed this file bankruptcy in Canada Brandon’s Blog. Do you or your company have too much debt? Are you or your company in need of financial restructuring? The financial restructuring process is complex. The Ira Smith Team understands how to do a complex restructuring. However, more importantly, we understand the needs of the entrepreneur or the person who has too much personal debt.

You are worried because you are facing significant financial challenges and you think the only thing you can do is file bankruptcy in Canada. It is not your fault that you are in this situation. You have been only shown the old ways that do not work anymore. The Ira Smith Team uses new modern ways to get you out of your debt troubles while avoiding bankruptcy. We can get you debt relief freedom.

The stress placed upon you is huge. We understand your pain points. We look at your entire situation and devise a strategy that is as unique as you and your problems; financial and emotional. We know that we can help you the way we take the load off of your shoulders and devise a debt settlement plan.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team. Not everyone has to file bankruptcy in Canada. We help many people and companies avoid bankruptcy.

That is why we can develop a restructuring process as unique as the financial problems and pain you are facing. If any of this sounds familiar to you and you are serious about finding a solution, contact the Ira Smith Trustee & Receiver Inc. team today.

Call us now for a free consultation.

We will get you or your company back on the road to healthy stress-free operations and recover from the pain points in your life, Starting Over, Starting Now.

We hope that you and your family are safe and healthy.

The Ira Smith Trustee Team is absolutely operational and Ira, in addition to Brandon Smith, is readily available for a telephone consultation or video meeting.

file bankruptcy in canada
file bankruptcy in canada
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Brandon Blog Post

DIVORCE DEBT: NOT ALL EQUALIZATION ISSUES OR RULES ARE EQUAL IN BANKRUPTCY

divorce debt
divorce debt

If you would prefer to listen to an audio version of this divorce debt Brandon’s Blog, please scroll to the bottom of this page and click on the podcast.

Divorce debt and bankruptcy introduction

The topic of divorce debt and bankruptcy is always a tricky topic. There are 6 indisputable facts when it comes to this topic:

  1. The primary reason for marital failure and also separation is financial issues. Divorce.com
  2. Research shows that one out of every seven people who made an insolvency filing in Canada detailed separation, marital breakdown and/or divorce debt as a contributing variable to their economic troubles.
  3. One-third of all people facing bankruptcy issues are likewise experiencing a family breakdown and divorce.
  4. Bankruptcy won’t end all separation responsibilities. e. g. It does not end spousal support or child support.
  5. Personal bankruptcy of one of the spouses, where certain divorce debts are joint, the bankruptcy, notwithstanding the divorce, will negatively affect the non-bankrupt spouse.

With really only one exception, bankruptcy law in Canada has been purposely designed not to interfere with the administration of provincial family law proceedings.

The only exception to this in Ontario is that an equalization payment is an unsecured divorce debt from one spouse to the other. If the spouse who has to make the equalization payment goes bankrupt during or after the divorce proceedings, then that debt is a debt caught by the bankruptcy. The spouse entitled to receive the equalization payment will have a provable claim in the bankruptcy for at least that amount. This does not apply to support payments.

The purpose of this Brandon’s Blog is to review a recent Ontario court decision released on February 19, 2020, that determines the answer to the question: can a licensed insolvency trustee (formerly called a bankruptcy trustee) (Trustee) begin an equalization claim against the non-bankrupt spouse under the Ontario Family Law Act, R.S.O. 1990, c. F.3 (“FLA”).

Divorce debt: The facts

The facts of the case were not in dispute. They are:

  1. The husband and wife purchased a house in Toronto where they resided.
  2. The matrimonial home was bought solely in the wife’s name.
  3. The spouses separated in February 2015.
  4. He left the marital residence in October 2015 and has never returned.
  5. There is no disagreement that there the issues facing the husband and wife are irreconcilable, that the separation will be permanent and that the parties wish a divorce.
  6. Neither the husband nor the wife had commenced an application for an equalization of the net family property prior to the husband filing an assignment in bankruptcy. It was not a divorce debt claim that he made. The husband remains an undischarged bankrupt. His sworn statement of affairs shows liabilities totalling $282,700.
  7. The wife deposed that she paid the deposit and all other amounts to buy the marital residence. She also stated that in addition, she paid the mortgage, taxes, and all other expenses associated with the home.
  8. The separation and divorce proceedings began due to his gambling addiction and his financial infidelity and other forms of infidelity.
  9. Her affidavit sets out that there was never any intention that the husband would have any interest in the matrimonial house.

If the trustee is successful in asserting an equalization claim then she and her kids aged 12 and 15 would be forced to leave the home as it would have to be put up for sale in order to raise the necessary funds to pay the equalization claim.

divorce debt
divorce debt

Equalization in Ontario, divorce debt and bankruptcy

Trustees have various rights under the Bankruptcy and Insolvency Act (Canada) (BIA). One of those rights is to have the benefit of laws dealing with property in the BIA. There is no dispute that the marital home falls under the definition of property. There is also no dispute that if the husband had begun an equalization claim of divorce debt before his bankruptcy, the Trustee would have the right to continue that claim.

Under the FLA, where spouses are separated without any possibility of reconciliation, the FLA qualifies the partner with the lesser of the spouses’ two net family property to one-half of the difference between them. If the trustee is permitted to make a case for equalization and is successful, then his share of the marital residence assets (based on any applicable reductions or offsets) would be included as an asset in his bankruptcy estate.

There is no disagreement that equalization claim is a divorce debt chose in action that a Trustee inherits upon the bankruptcy of the spouse who started that action. The question is, can a Trustee, standing in the shoes of the bankrupt spouse who has not yet started that action, start it?

There are many cases dealing with valid scenarios in which an equalization claim had already been started. The applicant Trustee’s position is that the Trustee has the capability to begin a claim for equalization of the net family property where neither partner has made such a case. The Trustee is relying on the fact that an equalization claim is a chose in action which the Trustee inherits.

The Judge’s decision

The Judge disagreed with the Trustee’s position. The court held that while the decision to continue with the divorce debt equalization claim made by the spouse can be left to a stranger to the marriage, the decision itself to make the claim cannot. So the Trustee can continue the decision of the spouse to make a formerly begun equalization claim however the choice to make the claim may not be made by anyone other than the spouse. That decision continues to be personal as between the spouses.

The Judge dismissed the Trustee’s motion and ordered the Trustee to pay $20,000 in costs to the wife immediately.

divorce debt
divorce debt

Summary

I am not aware of that question ever having been asked and decided by the Court before. So for now, in Ontario, that is the answer to that kind of divorce debt question. Do you have too much debt because of marital breakdown or for some other reason? Does your company have excessive debt and in need of debt restructuring? Would it not be great if you could do a turn-around?

The Ira Smith team is available to help you at any time. We offer sound advice and a solid plan for Starting Over Starting Now so that you’ll be well on your way to a debt-free life in no time. For more information on a no-cost basis please call us.

The Ira Smith Team understands how to do a debt restructuring. More notably, we comprehend the requirements of the business owner or the person who has too much individual debt. Because you are dealing with these stressful financial issues, you are anxious.

It is not your fault you can’t fix this problem on your own. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team makes use of new contemporary ways to get you out of your debt problems while avoiding bankruptcy. We can get you debt relief now.

We look at your whole circumstance and design a strategy that is as distinct as you are. We take the load off of your shoulders as part of the debt settlement strategy we will draft just for you.

We understand that people facing money problems require a lifeline. That is why we can establish a restructuring procedure for you and end the discomfort you feel.

Call us now for a no-cost consultation. We will get you or your business back on the roadway to healthy and balanced worry-free operations and end the pain points in your life, Starting Over, Starting Now.

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BANKRUPTCY LAW, A SHOE STORE CHAIN AND GOLF: WHAT DO THEY HAVE IN COMMON?

bankruptcy law

If you would prefer to listen to the audio version of this BANKRUPTCY LAW, A SHOE STORE CHAIN AND GOLF: WHAT DO THEY HAVE IN COMMON? Brandon’s Blog, please scroll down to the bottom and click on the podcast.

Introduction

I am writing this Brandon’s Blog more as an interesting story for those that live in the GTA and enjoy golf. Although as you will see, bankruptcy law does play a major role in this tale, it really is a story about what is probably the most famous Canadian golf course.

Bankruptcy and Insolvency Canada

Before getting into the interesting Greater Toronto Area golf course story, by way of background to it, I will first describe the bankruptcy law aspect.

A bankrupt shoe store chain workers lost their jobs when a Receiving Order (as a Bankruptcy Order was then called) was made putting an Ontario shoe store chain, Rizzo & Rizzo Shoes Ltd., into bankruptcy. All salaries, wages, commissions and vacation pay were paid to the date of bankruptcy. The province’s Ministry of Labour audited the company’s payroll books and records.

The Ministry’s audit determined that although the employees were all paid up to date, liability for termination or severance pay was owing to former employees under the Employment Standards Act (ESA). The Ministry delivered a proof of claim to the bankruptcy trustee (now called a Licensed Insolvency Trustee) (Trustee).

The Trustee disallowed the claim under the provisions of the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) (BIA). The Trustee’s disallowance was based on the ground that the bankruptcy of an employer acts to terminate the employment of the workers. This does not constitute termination by an employer. Therefore, no such liability for severance or termination pay exists.

The appeal of the Trustee’s disallowance

The Ministry successfully appealed the Trustee’s disallowance to the Ontario Court (General Division). The Trustee appealed to the Ontario Court of Appeal. The appellate court restored the Trustee’s decision. The Ministry sought leave to appeal to the Supreme Court of Canada but ultimately terminated that application.

After the discontinuance of the appeal, the Trustee paid a dividend to Rizzo’s creditors, therefore leaving much fewer funds in the bankruptcy estate.

After that, five previous staff members of Rizzo applied to set aside the discontinuance, add themselves as applicants to the Supreme Court of Canada leave to appeal. An order was made approving them to continue the appeal.

The Supreme Court of Canada decision

In a 1998 decision, the Supreme Court of Canada ultimately decided that the bankruptcy of an employer does terminate the employment of the workers. However, the Court felt that it was necessary to take a wider view of the ESA. The Court felt that one of the objects of the ESA was to protect the rights of employees when they lost their job. A finding that the severance and termination pay sections of the ESA to not apply in bankruptcy circumstances is incompatible with both the object of the ESA.

The Court went on to find that the legislature does not intend to generate ridiculous results if employees dismissed before the bankruptcy of an employer would generate a completely different result than those employees who lost their job by the bankruptcy of an employer.

Therefore, the Supreme Court of Canada found that employee rights to severance pay or termination pay is a claim provable in bankruptcy even if the dismissal occurred by the bankruptcy of the employer. This claim is an ordinary unsecured claim and does not have any priority.

The broader effect of the Supreme Court of Canada Rizzo & Rizzo decision

The obvious effect of the Rizzo & Rizzo decision is the bankruptcy law decision. However, the decision also stands for the concept that a statue must be looked at in a broader context. The Supreme Court decision in paragraph 21 states that “…statutory interpretation cannot be founded on the wording of the legislation alone”.

It goes on to say that “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”. This codified what can be called a modern approach to the interpretation of legislation.

So what does this have to do with a golf course?

Looking at the title of this Brandon’s Blog, I think I have now covered off the first two parts, namely, bankruptcy law and shoe store. Now for golf! On October 23, 2019, the Court of Appeal for Ontario released its decision in Oakville (Town) v. Clublink Corporation ULC, 2019 ONCA 826.

All golfers in the GTA know that Clublink owns and operates a chain of golf clubs in Ontario and Quebec, as well as Florida. The most famous and iconic golf course in the Clublink family and all of Canada is Glen Abbey in Oakville, ON. Clublink purchased this golf course in 1999.

Glen Abbey was the initial golf course solely created by Jack Nicklaus, one of the greatest professional golfers of all-time. The style of the course shows a specific focus on the viewer experience. Along with this value, the Town of Oakville believes Glen Abbey has substantial historical value. Glen Abbey has held the Canadian Open 30 times – 3 times greater than any other course in Canada. It, therefore, is connected with some of the most memorable events in Canadian golf history.

The 18th hole is significant as a result of its connection to Tiger Woods. In the final round of the 2000 Canadian Open, he hit a six-iron shot 218 yards from a bunker on the right side of the fairway to about 18 feet from the hole. The shot had to fly over a huge pond protecting the green.

On October 22, 2015, Clublink told the Town that they plan to redevelop Glen Abbey into a residential and mixed-use neighbourhood. Clublink proposed to develop 3,000 to 3,200 residences and 140,000 to 170,000 square feet of office and retail space. If Clublink’s plan to build succeeds, the word “four” will no longer be yelled out on the property!

The Court case

In November 2016, Clublink submitted applications to change the Town’s Official Plan and zoning by-laws and looked for authorization of a plan of subdivision, in connection with its redevelopment plan of Glen Abbey. In 2017, the Town recognized Glen Abbey as a considerable cultural heritage property under s. 29 of the Ontario Heritage Act (OHA). This notification stated the property’s cultural heritage value according to the provincial requirements of the OHA.

Clublink did not object to the heritage designation. Rather, they made an application to the Town under section 34 of the OHA to demolish and remove Glen Abbey. The Town alerted Clublink that their s. 34 application was legally beyond the range of a section 34 OHA application but was correctly within the range of s. 33 of the OHA which permits an owner to relate to altering a designated property.

Clublink commenced its very own application in the Superior Court for an affirmation that they could make an application under s. 34 of the OHA “for the demolition and removal of buildings and structures on the lands municipally known as 1313 and 1333 Dorval Drive … including but not limited to the tees, greens, hazards, fairways and cart paths”. Clublink was successful in its application and the Town of Oakville appealed the decision to the Ontario Court of Appeal.

What is the difference?

A study of the OHA is not why I am writing this Brandon’s Blog. The important point to know is that under s. 33 of the OHA, the owner may appeal to the Conservation Review Board. The Conservation Review Board holds a hearing and produces a report, in which it is to recommend whether the application must or ought to not be authorized. The Conservation Review Board’s report is not binding on the metropolitan council.

Unlike s. 33, if the metropolitan council rejects the owner’s application under s. 34, the owner of the property can appeal to the Local Planning Appeal Tribunal (LPAT). The local council is bound by the LPAT decision.

So as you can see, Clublink needs the Court ruling to stand that its s. 34 application is the correct one.

Is a golf course a structure?

In order to be successful, Clublink needs to prove that a golf course is a structure. The application judge found that Glen Abbey is both composed of structures as well as the golf course itself is a structure for the objective of s. 34 of the OHA. Clublink had actually correctly mounted its application under s. 34.

The application judge reached this decision because of the uncontroverted evidence before him was that Glen Abbey was the product of substantial engineering, design and construction. Relying on judicial and also administrative decisions from other contexts, he decided up that a golf course fits within the meaning of a “structure” as being a “thing constructed”.

After a very lengthy analysis, the Ontario Court of Appeal, with one Judge dissenting, confirmed the lower court’s decision.

So what does this have to do with Canadian bankruptcies laws?

The majority decision relied upon the Rizzo & Rizzo case. The Ontario Court of Appeal followed the confirmation in the bankruptcy law case by the Supreme Court of Canada that a strict dictionary or common usage interpretation of the word “structure” was inappropriate. A “…statutory interpretation cannot be founded on the wording of the legislation alone”.

Rather, a wider modern law approach must be used. The “…words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention…”. Therefore, finding that a golf course has detailed engineering, design and construction, it is a structure and Clublink was correct.

This is how bankruptcy law ties into a bankrupt Ontario shoe store chain and a golf course. It took a bit of a journey to piece it all together, but I am so glad that you stuck with me.

Summary

As you can see, not everything necessarily is how it appears at first blush. When I look out onto a golf course, I would never say, “what a marvellous structure”, but it is.

In the same way, financial decisions that we make along the way do not always turn out as we once thought it would be. Sometimes these decisions are forced upon us by life getting in the way, and sometimes they are voluntary. Nevertheless, when financial hardships strike, you need to find a way to solve your financial problems.

Do you have way too much debt? Before you reach the phase where you can’t stay afloat and where financial restructuring is no longer a viable alternative, contact the Ira Smith Team. We know full well the discomfort and tension excessive debt can create. We can help you to eliminate that pain and address your financial issues supplying timely, realistic and easy to implement action steps in finding the optimal strategy created just for you.

Call Ira Smith Trustee & Receiver Inc. today. Make a free appointment to visit with one of the Ira Smith Team for a totally free, no-obligation assessment. You can be on your path to a carefree life Starting Over, Starting Now. Give us a call today so that we can help you return to an anxiety-free and pain-free life, Starting Over, Starting Now.

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BANKRUPTCY AND INSOLVENCY ACT CANADA: BANKRUPTCY LAW FAQ

Introduction

I am often asked general questions about the Bankruptcy and Insolvency Act Canada. Sometimes it is about the application of a certain section or topic. Other times, it is a simple question such as where can I find a copy that I can look at?

The purpose of this Brandon’s Blog is to list the most often asked questions. Not all of them may be of interest to you. However, for those that have questions about the Bankruptcy and Insolvency Act, hopefully at least one of these questions (and the answer) will be of interest to you.

So here we go.

Is there a book that explains the various topics and sections of the Act?

Yes, there is. The book is an annotated version of the statute. It has the complete Act and its rules and regulations. In addition, the annotations provide explanations on the application of each section as well as a listing of decided cases to support the explanations.

Can I look up the Act and decided cases somewhere online for free?

Yes. The Canadian Legal Information Institute (CanLII) operates a website. It has the legislation online calling it the Bankruptcy and Insolvency Act Canada CanLII. CanLII can also be used to search bankruptcy legal decisions in both English and French.

Where can I find a listing of the many forms that a licensed insolvency trustee uses?

The best place to find all the mandated forms is on the website operated by the Government of Canada, Office of the Superintendent of Bankruptcy. It lists all the forms. They are also downloadable as pdf forms.

People ask me if they can perform a Bankruptcy and Insolvency Act Canada search. What they really mean is can they perform a search to find out if a specific person or company did a personal or corporate filing under the Canadian bankruptcy system. The answer to this question is yes.

The Office of the Superintendent of Bankruptcy operates a database for people to search the bankruptcy and insolvency records in Canada. The database can be accessed for free by a licensed insolvency trustee. Any member of the public can do the same search for the cost of $8 per search. Eventually, the Government of Canada is going to move to a free system, but it is not in place yet.

What are the Bankruptcy and Insolvency Act Canada regulations?

The Bankruptcy and Insolvency Act Canada regulations, otherwise known as the bankruptcy rules, form part of the Act itself. The pure legislation contained in the various sections of the Act is just that; the legislation. However, there are practical considerations which also need clarification. Such clarification is found in the Rules contained in the Bankruptcy and Insolvency Act (Canada). For example, the rules describe steps to abide by a specific section of the Act, or who is responsible for establishing Court fees.

Is their equal treatment for all unsecured creditors?

This is always an interesting question. The answer is also confusing to many lay people. The answer is both no and yes. I will explain. There are two types of unsecured creditors; preferred unsecured and ordinary unsecured. Many people forget this.

All ordinary unsecured creditors ARE treated equally. Their claims rank equally. The licensed insolvency trustee (formerly called bankruptcy trustee) paying a dividend to the ordinary unsecured creditors, they will all receive theirs in proportion share. The calculation is based on their respective ordinary unsecured claims.

The preferred unsecured creditors ARE NOT treated equally. The Bankruptcy and Insolvency Act Canada section 136 sets out the scheme of distribution for the rank of the claims. Payment to preferred creditors ALWAYS happens BEFORE payment to ORDINARY creditors.

The preferred creditors

However, preferred unsecured creditors are not equal. The Act states that there is a ranking of claims within the preferred group. The list and order of priority of the major types of preferred creditors are as follows:

  • for a deceased bankrupt, the reasonable funeral and testamentary expenses incurred;
  • the costs of the bankruptcy administration:
  • the levy payable by the licensed insolvency trustee under section 147 of the Act;
  • any wages, salaries, commissions, compensation or disbursements owing to employees for the six month period prior to the bankruptcy;
  • municipal taxes assessed or levied against the bankrupt, within the two years before the bankruptcy, that is not secured against the real property;
  • the commercial landlord for arrears of rent for three months immediately before the bankruptcy and accelerated rent for not more than three months following the bankruptcy (if entitled to accelerated rent under the lease);
  • one bill of costs of a lawyer for the creditor who first attached by way of garnishment or filed with the Sheriff an attachment, execution or another process against the property of the bankrupt;
  • indebtedness of the bankrupt under any Act about workers’ compensation, unemployment insurance or under any provision of the Income Tax Act creating an obligation to pay to Her Majesty amounts that have been deducted or withheld;
  • claims resulting from injuries to employees of the bankrupt for which there will be a receipt of money from persons guaranteeing the bankrupt against damages resulting from those injuries; and
  • any other claims of the Crown

The Trustee must pay the claims of the preferred creditors in full, less the statutory levy mentioned above. If there are insufficient funds to pay some or all the preferred creditors, then their claims become ordinary unsecured claims.

In personal bankruptcy, are there any claims not discharged upon the person receiving their absolute discharge from bankruptcy?

Yes. The Bankruptcy and Insolvency Act Canada section 178 lists the claims not discharged in a person’s bankruptcy. Such debts are:

  • a fine, penalty, restitution order or other order similar in nature imposed by a court in respect of an offence, or any debt arising out of a recognizance or bail;
  • any award of damages by a court in civil proceedings in respect of bodily harm intentionally inflicted, sexual assault, or wrongful death as a result of such an act;
  • a debt or liability for alimony or support under a court order or valid written agreement;
  • the debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity;
  • debts or liabilities resulting from obtaining property or services by false pretenses or fraudulent misrepresentation;
  • the entitlement to a dividend a creditor would have received on any provable claim not disclosed to the trustee unless the creditor had notice or knowledge of the bankruptcy and failed to take reasonable action to prove a claim;
  • any debt or obligation of a loan made under the Canada Student Loans Act, the Canada Student Financial Assistance Act or any enactment of a province that provides for loans or guarantees of loans to students where the date the person ceased being a full or part-time student was within seven years before the date of bankruptcy;

All claims against a bankrupt person are discharged when the person obtains their absolute bankruptcy discharge except those indicated above.

Student loans

There is an additional provision in the Bankruptcy and Insolvency Act Canada student loans section. It states that any time after 5 years after the bankrupt person has ceased to be a full or part-time student, they can apply to the Court for relief. The Court can cut the student loan debt if proved that the bankrupt person:

  • has acted in good faith in trying to repay the student loan debt, and
  • the bankrupt person has and will continue to experience financial difficulty and will be unable to pay the debt

What is the history of the Bankruptcy and Insolvency Act in Canada?

The Bankruptcy and Insolvency Act in Canada has a very interesting history. The Bankruptcy and Insolvency Act of Canada has its origins in the Bankruptcy Act of 1919. The Act changed in 1949. In terms of the history of our country, this means the Act is a relatively young piece of legislation. The reason for the enactment is that every modern society has to realize that some of its citizens and businesses will run into financial trouble. A modern and efficient economy has to have the means to help those people and businesses out of their trouble. Everyone deserves a fresh start. To redeploy a company’s assets there must be a formal system to allow this to happen.

The Act changed again in 1992, 1997 as well as 2008-2009. The 1992 reforms concentrated on maximizing value for creditors with reorganization and rehabilitation, boosting the fair distribution to employees and providers of goods and services to the bankrupt company.

The 1997 reforms urged consumer debtor responsibility and boosted the reorganization stipulations as well as the administration of the Act. It introduced new sections dealing with the insolvency of securities firms and dealing with global insolvencies.

The 2009 reforms, had 4 primary aims:

  • to urge the restructuring of viable, but financially hampered companies;
  • to better secure workers’ insurance claims for wages and holiday pay;
  • making the bankruptcy system fairer and lower abuse; and
  • to improve the administration of the Canadian bankruptcy system.

Is the Act federal or provincial legislation?

Federal legislation. The name of the Act gives the answer. Its name is the Bankruptcy and Insolvency Act Canada. Although there are laws in each Province that will come into play during the administration of a bankruptcy or reorganization, the Act is Federal.

Summary

So I hope you have a better understanding of the most asked questions about the Government of Canada Bankruptcy and Insolvency Act. The Act deals with bankruptcy insolvency issues for both bankruptcy law personal and corporate.

If you have any questions about how the Canadian bankruptcy system works or feel that someone you know could benefit from a free first consultation with a professional licensed insolvency trustee, feel free to contact me.

The Ira Smith Team have decades of experience in both personal and corporate insolvency matters. We can handle complex corporate and other business financial restructurings as well as personal financial problems. In both corporate and personal insolvency matters, we first look at how we can reorganize and restructure the person or business to do a rescue.

bankruptcy and insolvency act canada

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407 ETR FAIRNESS-ONTARIO COURT OF APPEAL ENSURES 407 ETR FRESH START

consumer proposal bankruptcy alternatives trustee bankruptcy and insolvency act vaughan trustee 407 407ETR bankruptcy ontario Ira Smith trustee Receiver Inc1
consumer proposal bankruptcy alternatives trustee bankruptcy and insolvency act vaughan trustee 407 407ETR bankruptcy ontario Ira Smith trustee Receiver Inc1

 

407 ETR407 ETR found out that bankruptcy law is complicated. It not only deals with the facts, but with the spirit of the law. Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company Limited, 2013 ONCA 769 (Bankruptcy and Insolvency Act CanLII) is a very interesting case.

It involves Matthew David Moore, a truck driver who owned two vehicles and was a frequent user of this toll highway. Mr. Moore owed the money for usage of the toll Highway which he failed to pay. In March 2005 and December 2006, 407ETR sent notices of his non-payment relating to two separate vehicles to the Registrar of Motor Vehicles for the Province of Ontario (the “Registrar”). As a result, when the vehicle permit for one of the vehicles expired in August 2005, it could not be renewed. However, Mr. Moore continued to use Highway 407 for another 18 months and as of October 2007, he owed $34,977.06.

In November 2007 Mr. Moore made an assignment into bankruptcy. The 407ETR was listed as a creditor but it did not file a proof of claim which would have enabled the 407ETR to make submissions at any hearing into Moore’s discharge from bankruptcy and to share rateably with Moore’s other unsecured creditors in the bankruptcy. After declaring bankruptcy Mr. Moore had an accident and retrained to become a car salesman, which is what he now does for a living. He gave evidence that he needs a vehicle permit in order to do his job and earn a living. In February 2011 Mr. Moore obtained a conditional discharge from bankruptcy. He requested an Ontario Ministry of Transportation (“MTO”) vehicle permit but the MTO refused his request due to his outstanding indebtedness to this Highway concession company. On June 21, 2011, Mr. Moore obtained an absolute discharge from bankruptcy. Even though he was discharged from bankruptcy, the MTO refused to issue Mr. Moore a vehicle permit. The alleged conflict, in this case, is between s. 178(2) of the BIA, which releases the discharged bankrupt from most claims, and s. 22(4) of the 407 Act, which permits 407ETR to initiate a process by which the debtor will be denied a vehicle permit until he or she discharges the debt to 407ETR. A lot of legal wrangling ensued and eventually, this matter went to appeal. The issues on appeal were:

(i) Does s. 22(4) of the 407 Act conflict with the operation of s. 178 (2) of the BIA?

(ii) Does s. 22(4) of the 407 Act conflict with the purpose of the bankruptcy and insolvency system because it (a) thwarts the objective of providing the bankrupt with a fresh start or (b) creates a new class of debt that survives bankruptcy and frustrates Parliament’s intention to treat all unsecured creditors equally?

What was the 407 etr ruling?

“For these reasons, I would allow the appeal and, as requested by the appellant, set aside the order of the motions judge. In its place, I would substitute an order that:

(1) the discharge of Moore dated June 21, 2011, released him from all claims provable in bankruptcy, including the toll highway debt as at November 10, 2007, and

(2) the Ministry of Transportation is hereby directed to issue license plates to Moore upon payment of the usual licensing fees.

Further, I would declare that s. 22(4) of the 407 Act is inoperative to the extent that it thwarts the purpose of providing a discharged bankrupt with a fresh start.”

This decision ensured that bankruptcy did provide Mr. Moore with a fresh start. If you are experiencing serious financial problems and are looking for a fresh start, contact Ira Smith Trustee & Receiver Inc. today. You can even do some self-study with our bankruptcy faqs. Upon review of your situation, we will provide you with a solid plan for moving forward. Starting Over, Starting Now you can get your life back on track and live a happy and productive life.

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