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INSOLVENCY ADVISORY SERVICES: STANDOUT HELP DOES NOT NEED HORRIFYING HIGH COSTS

This is our last blog post for 2024. We will be back with more in January. Happy Holidays and a Happy and Healthy New Year to all of our readers.

Insolvency Advisory Services: Introduction

Insolvency is a complex financial situation with significant legal and practical implications. This Brandon’s Blog post explores the key aspects of insolvency law in Canada, drawing on authoritative sources to provide a clear and informative overview.

As the pandemic-induced economic rollercoaster continues, I recently read an article in The Globe & Mail Report on Business about the world of insolvency advisory services. On the one hand, professionals like me help to fix corporate car crashes during crises, seemingly thriving off others’ misfortunes. On the other hand, our services can lead struggling businesses to a new beginning, saving jobs and families. Not just the workers or the owners, but all the businesses that rely upon that one business. Let’s dive into this fascinating landscape where financial insolvency wizardry collides with corporate despair.

What is Insolvency?

Insolvency refers to a situation in which an individual or a company is unable to fulfill their financial obligations as they become due. In Canada, the legal framework offers several mechanisms to manage insolvency, with the goal of balancing the interests of both debtors and creditors.the purpose of the image is to show a business person who company has entered insolvency in need of financial restructuring

Key Legislation in Canadian Insolvency Law

The Bankruptcy and Insolvency Act (BIA) serves as the fundamental legislation governing insolvency in Canada. This federal law establishes the protocols for addressing bankruptcies and proposals, ensuring a fair and systematic approach for all parties involved.

In conjunction with the BIA, the Companies’ Creditors Arrangement Act (CCAA) offers a framework specifically designed for the restructuring of insolvent corporations, particularly those with debts exceeding $5 million. Both the BIA and CCAA are administered by the Office of the Superintendent of Bankruptcy (OSB), which operates under the Department of Innovation, Science and Economic Development Canada. The OSB is essential in overseeing the insolvency process, licensing insolvency professionals, and maintaining public records related to insolvency matters.

Provincial Laws and Their Impact on Insolvency

Federal legislation primarily regulates the fundamental aspects of insolvency in Canada; however, provincial laws significantly influence this area, particularly concerning property and civil rights. Specific issues addressed by provincial legislation include:

The establishment of security interests The handling of absconding debtors Regulations surrounding bulk sales Provisions related to fraudulent conveyances

This interaction between federal and provincial laws results in a comprehensive legal framework for managing insolvency in Canada.

Roles and Responsibilities

Licensed Insolvency Trustees are licensed professionals authorized by the OSB to administer bankruptcies, handle proposals, and act as monitors or receivers. Insolvency Trustees play a pivotal role in guiding debtors and creditors through the insolvency process, ensuring compliance with legal requirements.

Access to Insolvency Information

The OSB provides a searchable database of bankruptcy and insolvency records that is available to the public for a fee. This database includes detailed information on various insolvency proceedings, such as bankruptcies, proposals, receiverships, and proceedings under the CCAA. Furthermore, the publication “Insolvency Insider Canada” offers current news and legal updates on trends related to insolvency in Canada.

Insolvency Advisory Services: The Profit Motive

Have you ever thought about how much insolvency advisers bill out per hour? The article stated that downtown Bay Street bankruptcy legal counsel and licensed insolvency trustees charge up to $1,300 per hour for their services. Are these fees justified? Or are they merely a symptom of a broken system?

Understanding Senior Claims

In insolvency cases, fees charged by advisers are classified as senior claims. This means they get paid before other creditors. When a company admits insolvency and makes a filing under either the BIA or the CCAA, these advisers work hard to navigate the complex legal landscape.

But who benefits the most? According to The Globe & Mail article:

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Adviser fees have been climbing steadily over the years. While companies going through insolvency struggle with debt, they may very well be paying unnecessarily high fees.

The Financial Implications

What does this mean for businesses? When firms find themselves in the dire straits of insolvency, they owe a mountain of money. The debt piles up, and the cost of hiring pricey advisers only adds to their woes. In many cases, legal and financial advisers are feasting on the carcass of struggling companies.

The Cold Reality

This narrative reveals the harsh truth: while companies drown in debt, they may very well be paying too much for their advisers. Insolvency advisers are essential for navigating bankruptcies and restructurings, but many companies may be paying too much for the help they need. No doubt there are certain regulated industries or overly complex businesses that need the minds and skills of the downtown Bay Street advisers. But that is not the majority of Canadian businesses.the purpose of the image is to show a business person who company has entered insolvency in need of financial restructuring

Insolvency Case Study: Do Our Fees Hold Up In Court?

We are involved in the liquidation case of two companies. Certain stakeholders, including the Estate Trustees of the Estate of a deceased shareholder, disagreed with the fees we and our legal counsel charged. A court hearing concerning our fees as a court-appointed liquidator and those of our legal counsel was held in the winding-up case.

As liquidator we sought approval for substantial fees which were challenged by the respondents, shareholders of the companies, as disproportionate to the assets involved. The judge considered various factors including the complexity of the case, the time spent, and the results achieved, ultimately approving the fees, citing prior court approvals of the liquidator’s actions and rejecting the respondents’ arguments as a collateral attack. The decision highlights the principles of fairness and reasonableness in determining court officer fees.

What factors influenced the assessment of the fairness of our liquidation fees?

The court evaluated several factors to assess the fairness of the liquidation fees charged by the Liquidator and their counsel. Ultimately, the judge ruled in our favour based on the following considerations:

  • Nature, Extent, and Value of Assets: The Liquidator was responsible for liquidating two companies that presented moderately complex tax and accounting challenges.
  • Complications and Challenges Encountered: The Liquidator faced numerous obstacles, including concurrent family and estate proceedings, conflicts between the Estate Trustees and another shareholder, and multiple adjournments. Additionally, delays in court proceedings instigated by the Estate Trustees contributed to increased costs.

These delays included:

  1. The conversion of the liquidation proceedings from voluntary to court-supervised, happened almost a year after the liquidation proceedings began.
  2. The proposed sale of was delayed because the Estate Trustees continued accepting new orders despite the initial agreement to not accept new orders during the voluntary liquidation. They requested time to procure an offer to sell the company.
  3. Further delays were caused when the Estate Trustees proposed to remove one of the companies from the liquidation but failed to do so. The Liquidator was then required to notify customers that business operations would cease once current orders were completed.
  4. The Estate Trustees switched counsel, which caused adjournments and increased time spent on the case.
  • The degree of assistance provided by the company. The Estate Trustees were confrontational and slow to provide information, which made the Liquidator’s job more difficult.
  • The time spent. The liquidation proceedings were protracted due to issues between the stakeholders.
  • The Liquidator’s knowledge, experience, and skill. Both the Liquidator and its counsel were found to have significant knowledge and experience in corporate and insolvency matters.
  • Diligence and thoroughness. The Liquidator produced three comprehensive reports and affidavits for the motion. Their invoices provided a clear understanding of the thoroughness of their work.
  • The responsibilities assumed. The Liquidator was responsible for extensive activities, which were outlined in its reports and approved by the court. These activities included monitoring business operations, selling one of the companies’ primary assets, engaging various professionals, establishing and monitoring a claims process, and taking steps to wind down an active business.
  • The results of the efforts. The Liquidator successfully converted the voluntary liquidation into a court-supervised process. They managed the companies’ finances, initiated a claims process, and made interim distributions.
  • The cost of comparable services when performed prudently and economically. The rates charged by the Liquidator and its counsel were comparable to those charged by other providers in the Toronto market. Although the respondents argued that the fees were disproportionate to the value of the businesses, the court ultimately ruled that the fees were fair and reasonable given the factors outlined above.

The Mechanics of Corporate Insolvency

Understanding corporate insolvency and bankruptcy law can feel like navigating a maze. Why is there a need for specialized expertise in this field? Let’s dive into this complex world.

1. The Ins and Outs of Bankruptcy Law

Bankruptcy law is not just a set of rules; it’s a detailed framework designed to address financial distress. At the core is the legal process that aims to protect debtors while ensuring creditors get as much back as possible. This is where specialized knowledge comes in. It is critical to understand the nuances, strategies and strategizing, litigation processes, and the potential financial ramifications of each decision.

Think about it: would you trust someone who has only dabbled in the subject to handle a significant financial crisis? I wouldn’t. Expertise in this area enhances efficiency. A knowledgeable insolvency adviser can streamline the process and avoid costly missteps.

Also, this specialized knowledge often leads to reduced competition. But there are alternatives; there are experienced insolvency professionals who operate in lower-cost boutique firms like mine. Their offices may not be as fancy as the Bay Street crowd, but, what do you want to pay for. Their knowledge and expertise or their office furnishings and high rent?

2. A Day in the Life of a Licensed Insolvency Trustee Adviser

What does a licensed insolvency trustee adviser actually do day-to-day? Most of our time on corporate restructuring files involves analyzing company financials and negotiating with creditors. Navigating through heaps of paperwork is part of the gig, too. Advisors must also attend court hearings and meetings with various stakeholders, always looking to find the best possible outcome.

Typical Tasks Include:

  • Drafting essential documents and filings.
  • Conducting asset evaluations.
  • Coordinating with legal teams and financial analysts.

On any given day, a licensed insolvency trustee adviser may switch gears between solving legal puzzles and crunching numbers. It’s a mixture of law, finance, and a bit of psychology when negotiating to save distressed businesses.

3. Key Players in Corporate Insolvency

Corporate insolvency involves several key roles, each contributing to the process in distinct ways:

  • Legal Counsel: Legal professionals represent the interests of their clients and assist in navigating the complex legal landscape associated with insolvency proceedings. Court-
  • Court-Appointed Receivers/Insolvency Trustees: These individuals are tasked with managing the assets of the company during the insolvency process, ensuring proper handling and distribution according to legal guidelines.
  • Monitors: Monitors oversee the restructuring process to prevent the company from entering receivership or bankruptcy. They ensure that the company adheres to all legal requirements throughout the process.

Each of these roles is essential in facilitating a fair and orderly insolvency process. Together, they work towards achieving the best possible financial recovery while upholding the integrity of the legal framework.

4. Why Experience Really Matters

Experience can make or break an insolvency case. A seasoned insolvency professional will have seen various crises unfold, equipping them with the knowledge of what strategies work. They can anticipate challenges and react swiftly to changes in circumstances.

Also noteworthy is that judges usually have a high regard for seasoned practitioners. The more experienced the insolvency adviser, the more likely they will get favourable outcomes – and that’s crucial. After all, when dealing with millions on the line, would you want a novice watching your back?

Ultimately, the world of corporate insolvency is a ripe field for those with the right set of skills and experience. But remember, it’s about guiding businesses through some of the most turbulent waters they face.the purpose of the image is to show a business person who company has entered insolvency in need of financial restructuring

The Ripple Effect of Rising Insolvency Advisories

In today’s economic climate, the rise in insolvency advisory fees is an issue that’s hard to ignore. It touches everyone – from entreprenurial businesses trying to stay afloat to investors scratching their heads over diminished returns.

Entrepreneurial Businesses and Higher Fees

As advisory fees rise, entrepreneurs are generally shut out of being able to restructure. That is one of the reasons why Ira Smith Trustee & Receiver Inc. was established. We offer the highest quality of service that rivals any Bay Street licensed insolvency trustee firm. However, due to our unique boutique formula, our hourly rates are slightly less than half of those charged by downtown Toronto Bay Street insolvency professionals.

We know that many entrepreneurs find themselves squeezed by Bay Street hourly rates, unable to afford the very advice meant to save their companies. That is why we can earn a fair return for our services in running our insolvency advisory business, without killing off the company we are trying to save because of higher fees. Downtown firms don’t think we can, but with the combined experience of Ira and Brandon Smith totalling over 60 years, we know how to and have done complex corporate restructuring. We are also one of those experienced seasoned firms that judges recognize as such. Our clients also give us 5-star reviews!

The Role of Insolvency Advisers

Despite the high costs, insolvency advisers play a crucial role in reviving struggling companies. When firms like Groupe Dynamite sought protection during tough times, savvy advisers helped them navigate those murky waters. Their expertise can mean the difference between a successful turnaround and a grim closure.

Lending and Creditworthiness

But there’s a catch. Rising advisory fees may also undermine a company’s creditworthiness. Imagine a lender reviewing a firm burdened by steep fees. They might hesitate, fearing that funds directed to advisers are funds that won’t go toward debt repayment. Essentially, high fees could close the door on future lending.

Myths Surrounding Formal Insolvency Proceedings

It is essential to clarify some misconceptions regarding the beneficiaries of formal insolvency proceedings. A common belief is that companies undergoing restructuring are guaranteed to be saved; however, this is not always the reality. Once advisers get to work, there are situations where we realize that most of the company isn’t salvageable. This emphasizes the importance of critically assessing the situation as quickly as possible so that unnecessary steps are not taken using up scarce resources.

In certain cases, such as that of Groupe Dynamite case, advisers have successfully revitalized struggling brands. Conversely, there are situations where advisers do earn fees from a business that ultimately cannot be sustained. Therefore, an effective insolvency assessment must identify these challenges from the outset in every case. It is crucial to ensure that a successful restructuring does not come at the expense of overwhelming financial burdens.

A candid and transparent dialogue between the insolvency advisor and company management is necessary before initiating any restructuring efforts. This collaboration is vital for determining the viability of the company and the best course of action moving forward.

The Ethical Dilemma In Insolvency Advisory

Navigating the complexities of insolvency involves not only strategic calculations but also significant ethical considerations. A critical question arises: at what point does one profit from another’s misfortune? The high fees charged by downtown Toronto Bay Street insolvency advisers, which can exceed $1,300 per hour, certainly prompts the question. This raises an important discussion about whether these professionals are genuinely aiding in recovery or merely capitalizing on the difficulties faced by their clients.

Insolvency advisory fees are typically structured to be front-loaded, meaning that the initial phases of an insolvency case require significantly more effort from advisers. This is necessary as they work to thoroughly understand the various issues at hand. Consequently, the execution of the devised strategy tends to be less intensive than its formulation.

This structure can exacerbate the financial strain on already struggling businesses, leading to concerns about the fairness of such practices. Therefore, transparency regarding fees is not merely a preferable quality but an essential component of ethical practice in insolvency advisory. Business owners deserve clarity to make informed decisions during challenging times.

Finding Balance

Achieving a balance between risk and reward is essential for long-term success in business. While it can be tempting to chase higher gains, it’s important to carefully consider the potential consequences. Understanding the balance between your business’s viability and the associated advisory fees is key to making informed decisions.

As we navigate the challenges ahead, let’s stay vigilant and compassionate, ensuring we take care of our businesses and those who support us in maintaining them.

I encourage you to take a moment to reflect on these points and prepare not just for success, but for stability in the ever-changing marketplace. Together, we can build a resilient foundation for the future.

Insolvency in Canada: FAQs

1. What is insolvency and how does it impact businesses in Canada?

Insolvency happens when an individual or a company is unable to fulfill their financial obligations when they are due. This situation can have important legal and practical implications, and it is guided by a detailed set of federal and provincial laws in Canada. For businesses facing insolvency, there are several potential outcomes, such as increasing debt, legal actions from creditors, and the possibility of closure. However, it’s important to remember that there are options available to help navigate this challenging situation, and seeking advice from financial professionals can be a valuable step forward.

2. What key legislation governs insolvency in Canada?

The BIA serves as the primary federal legislation governing bankruptcies and proposals in Canada. It establishes a structured process to protect the interests of all parties involved in insolvency proceedings. In contrast, the CCAA is specifically designed for the restructuring of insolvent corporations, with debts that exceed $5 million. Additionally, provincial laws contribute to the framework surrounding bankruptcy, particularly in matters related to property rights and fraudulent conveyances.

3. What role do Licensed Insolvency Trustees play in insolvency proceedings?

Licensed Insolvency Trustees are professionals authorized by the OSB to oversee bankruptcy proceedings, manage proposals, and act as receivers or monitors. Their responsibilities include offering guidance to both debtors and creditors throughout the legal processes, ensuring compliance with applicable regulations, and working to balance the interests of all parties involved.

4. Why are insolvency advisory fees considered a concern, especially for entrepreneurial smaller businesses?

Insolvency advisory services, though crucial in navigating complex legal and financial landscapes, often come with high hourly rates. This can be a significant burden for struggling businesses, particularly smaller enterprises, as these fees are prioritized as senior claims, meaning they are paid before other creditors. Some argue that these fees add to the financial strain and may not always guarantee a successful recovery.

5. What are some alternatives to high-priced Bay Street insolvency firms?

While large Bay Street firms dominate the insolvency landscape, boutique firms like ours offer comparable expertise and experience at lower hourly rates. Smaller Firms like ours prioritize practical solutions and cost-effectiveness, all delivered with a large dose of empathy. This makes us a viable alternative for businesses seeking quality advice without exorbitant fees.

6. How can businesses prepare for potential insolvency and mitigate risks?

Organizations can effectively mitigate the risks associated with insolvency by prioritizing strong financial management practices. This entails diligent monitoring of cash flow, diversifying revenue sources, maintaining adequate reserves, and establishing a contingency plan to address potential financial challenges. Timely identification of warning signs, along with seeking guidance from qualified professionals, can greatly enhance the likelihood of recovery.

7. What ethical considerations arise in the field of insolvency advisory services?

The power dynamics and the potential for substantial fees in insolvency advisory raise significant ethical considerations regarding the profit derived from a company’s financial difficulties. It is crucial to ensure transparency in fee structures and demonstrate a sincere commitment to prioritizing the client’s best interests over the pursuit of maximum profit. Such practices are essential for upholding ethical standards within the industry.

Insolvency Conclusion: Navigating the Stormy Waters Ahead

As I reflect on the unpredictability of the business world, it strikes me how everything can change in an instant. What appears stable today can be rocky tomorrow. We’ve seen thriving companies face insolvency as consumer habits shift overnight. There are many such examples. They soared high, only to crash due to rising interest rates impacting consumer spending. It’s a stark reminder that no one is immune to the tides of economic downturn.

For business owners, the key is preparation. Have you considered what your plans are if faced with potential insolvency? It’s essential to develop mitigation strategies. Keeping an eye on cash flow, diversifying income streams, and maintaining a strong financial buffer can save a business from downfall. By creating a robust financial foundation, we can cushion ourselves against unforeseen storms.

I hope you enjoyed this insolvency 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 someone with too much personal debt.

You are worried because you are facing significant financial challenges. 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 the bankruptcy process. We can get you debt relief freedom using processes that are a bankruptcy alternative.

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. The way we take the load off of your shoulders and devise a plan, we know that we can help you.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.

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.

The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.the purpose of the image is to show a business person who company has entered insolvency in need of financial restructuring

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CORPORATE INSOLVENCY DEMYSTIFIED: THE BEST ESSENTIAL PROCEDURES YOU NEED TO KNOW

Importance of Understanding the Essence of Corporate Insolvency

For the directors and management of a company, corporate insolvency feels like stepping into an intricate maze without a map. As a business owner, navigating financial challenges is far from simple, especially when insolvency starts looming. So, what does corporate insolvency truly mean, and why is it pivotal for us as entrepreneurs to grasp its nuances?

That is the topic of this Brandon’s Blog post. I will break down the crucial steps in corporate insolvency proceedings. We’ll cover everything from spotting early warning signs of an insolvent company like cash flow issues and creditor pressure to navigating formal procedures including appointing a licensed insolvency trustee and making corporate insolvency procedures filings such as formal business restructurings or business bankruptcies.

Definition of Corporate Insolvency and Its Significance

Put simply, corporate insolvency emerges when a business can’t settle its debts as they come due or, notably when the amount of its liabilities surpasses the value of its assets. Think of it as reaching a point where your business’s financial juggernaut feels like it’s sliding down a slippery slope.

The weight of insolvency is staggering. Not only can it culminate in bankruptcy, but it can also lead to severe asset depletion and tarnish the company’s reputation. This situation isn’t just a statistic; it resonates with me as I have witnessed many falter under financial and emotional pressure. Entrepreneurs put their heart, soul, and resources into a venture, only to watch it crumble due to mounting financial strain.

corporate insolvency
corporate insolvency

The Implications For Entrepreneurs of Ignoring Corporate Insolvency

Many entrepreneurs can fall prey to the urge to ignore the warning signs. This decision, however, can be catastrophic. Ignoring insolvency can trap businesses in a cycle of debt that feels impossible to escape. Statistics reveal that a staggering 51% of small companies encounter financial distress at some point. This is not just a number; it’s a real-life scenario for many.

“Recognizing insolvency early can be the difference between recovery and closure.”

The consequences go beyond just finances. Picture this: you wake up every day feeling the pressure of creditors, accompanying feelings of stress and fear gripping you tightly. It clouds your judgment, making it difficult to devise a recovery plan. From my observations, it can transform a once-passionate entrepreneur into someone worn and defeated. The psychological impact is immense.

The Psychological Impact of Corporate Insolvency On Entrepreneurs

Entrepreneurs carry the weight of not just their financial obligations but also the hopes and dreams of their employees and communities. To think of potential closure or bankruptcy can feel like a dark cloud looming perpetually over one’s head. Many entrepreneurs, when faced with severe financial challenges, have shared feelings of confusion and despair.

Interestingly, challenges with cash flow emerge as a substantial reason behind many insolvencies, accounting for 82% of failures. I’ve come across several horror stories where businesses, with promising futures, succumbed to the pressure of mismanaged cash flow, all while their owners felt helpless.

Leading Common Danger Signs of Corporate Insolvency

There are many common danger signals of corporate insolvency. The leading ones can be described as:

  • Cash Flow Problems: If your business is struggling to meet its financial obligations, it could be a hallmark sign of insolvency.
  • Creditor Pressure: The moment creditors start taking legal action, alarm bells should ring; it’s a clear indication that your business is in trouble.
  • Declining Performance: A consistent drop in sales and market share can pave the way for financial struggles.
  • Debt as a Killer: When a business has gathered a considerable amount of debt that it cannot pay off, it can discover it is challenging to fulfill its economic obligations, which is the leading cause of bankruptcy.
  • Declining Sales and Market Share: a decrease in sales can act as a substantial indicator, shedding light on the multifaceted challenges a corporation grapples with.
  • Impact of Competition: Are more dominant industry players taking over a larger share of the target market causing a sales decline? The value of the enterprise and its ability to survive must be looked at in comparison to existing competition.
  • A problem in Securing Financing: When a company is unable to secure funding, it can be a concerning indication of economic distress. Lenders might consider the company as not creditworthy, implying they do not believe in its capability to pay off borrowed funds.
  • Workforce Downsizing and Layoffs: When a corporation finds itself ensnared in economic turmoil, it frequently turns to measures aimed at trimming expenses to reinvigorate its financial solvency. This may entail the reduction of personnel.

When I navigated through some of these struggles with entrepreneurs, I often saw how they failed to recognize these indicators until it was too late. In this intricate dance of financial management, awareness can serve as a life raft.

corporate insolvency
corporate insolvency

Corporate Insolvency: The Importance of Regular Financial Reviews

One critical practice that I have learned that entrepreneurs need to prioritize is conducting regular financial reviews. The significance of this cannot be overstated. By scheduling monthly or quarterly check-ins on financial performance, business owners can easily detect irregularities that may signal deeper issues. These reviews ensure that they are not just looking at the surface but diving into the underlying numbers. Analyzing cash flow statements and profit margins helps to understand the business’s pulse.

Moreover, regular reviews provide an opportunity to gather insights on when to cut costs or invest more strategically. In my journey, I’ve found that proactive measures are far more effective than reactive ones. Seeking the advice of financial professionals can also prove beneficial. Engaging with a licensed insolvency trustee or financial advisor can shine a light on areas needing attention and development.

“Timely intervention can save your business from collapsing.”

Reflecting on the insights and advice I have provided to entrepreneurs has further cemented their understanding of why preventive measures are paramount. It’s about more than numbers; it’s about safeguarding the futures of their employees and their families.

Being proactive is critical. Spotting the warning signs early can make all the difference. Whether you face cash flow problems, creditor pressures, or a decline in sales, it’s vital to take actionable steps without delay. Incorporating regular financial reviews into your routine is not just advisable; it’s essential for the long-term viability of your enterprise.

Ignoring these early warning signs can lead to a cascade of financial distress that might have been preventable. Knowledge is power, and armed with the right information, we can steer our businesses safely through turbulent waters.

Taking Initial Steps in Corporate Insolvency

Faced with financial challenges, taking immediate action is crucial – this is where we can regain some measure of control. From my experience, the initial steps can be lifesaving. Here’s what I always recommend:

  1. Recognize financial distress and seek professional advice: It’s essential to consult with a licensed insolvency practitioner or financial advisor to assess your situation. Seeking help early can prevent a further spiral downward.
  2. Identify signs of financial trouble and get expert support: It’s important to reach out to a qualified financial advisor or insolvency expert to evaluate your circumstances. Addressing the issue sooner rather than later can help you avoid worsening your situation.
  3. Perform a Detailed Financial Review: Carefully examine your company’s financial records and current liabilities. Think of this as a triage process; by pinpointing the most pressing issues, you can create a clear and effective recovery strategy.

As I’ve witnessed firsthand, the retainer of an insolvency professional provides a knowledgeable guide in unchartered territory. Our expertise can streamline the process, making sure you’re not navigating blindly.

corporate insolvency
corporate insolvency

Corporate Insolvency: A Glimpse into Formal Insolvency Proceedings

Should insolvency become unavoidable and informal processes are not good enough, formal insolvency proceedings may need to be kicked in. It’s an unsettling process, yet understanding it can alleviate some fears:

  • Filing for an Insolvency Process: Your licensed insolvency practitioner will make the necessary filing that the company agrees to, be it a restructuring plan, bankruptcy protection or a liquidation bankruptcy filing, with the Office of the Superintendent of Bankruptcy and/or the Court, outlining all the reasons behind the insolvency and the suggested course of action.
  • Moratorium Period: The Bankruptcy and Insolvency Act (Canada) and the Court grants this stay period during which creditors can’t pursue legal action – whether it has been started yet or not, which is a much-needed breather!
  • Formation of a Creditors’ Committee: The insolvency professional will facilitate communication with creditors, establishing a committee to oversee proceedings. For smaller companies restructuring or liquidating under the Bankruptcy and Insolvency Act, Inspectors can be appointed to oversee the insolvency administration. In a restructuring, the Inspectors can be made up of representatives of both secured creditors and unsecured creditors. In bankruptcy, they are only made up of representatives of unsecured creditors.

These procedures may feel intimidating, yet having a capable team can illuminate the path ahead. It becomes less of a solo journey and more of a united front battling a common challenge.

Corporate Insolvency: Understanding Key Stakeholders and Their Roles

Moreover, it’s essential to recognize the various stakeholders involved in insolvency proceedings. Understanding their roles can help demystify the process:

  • Company Directors: They hold a fiduciary duty to act in the best interests of both our company and creditors. It’s a heavy responsibility on company directors, but one that can’t be overlooked. Company directors also have personal liability for certain corporate debt such as unremitted source deductions, unremitted HST and unpaid salary, wages and vacation pay.
  • Creditors: The rights of creditors must be respected, and they play a major role in the decisions we make during insolvency proceedings. Ultimately, it is the outcome for creditors that is the measure of whether a restructuring plan, being the alternative to bankruptcy, will be successful or not.
  • Employees: A workforce is often directly affected, facing potential layoffs or terminations, adding a layer of emotional strain to an already stressful situation.
  • Shareholders: As the value of shares can plummet, communicating transparently with shareholders is essential to mitigate backlash.

As business owners, entrepreneurs have to navigate these intricate relationships, often balancing reputations, responsibilities, and the welfare of everyone involved.

The landscape of insolvency is governed by various pieces of insolvency legislation and other laws and regulations. Understanding them is crucial to making informed decisions:

  • Bankruptcy and Insolvency Act: This is a federal statute that details the official processes for managing insolvency, addressing both the financial troubles of businesses and individuals alike.
  • Companies’ Creditors Arrangement Act: This pertains to the restructuring alternatives available to large corporations encountering insolvency, specifically targeting entities with debts of $5 million or more.
  • Provincial and Territorial Laws: Don’t forget to keep an eye on regional regulations that may impact your situation.

Ignorance of these regulations can complicate matters further, leaving entrepreneurs vulnerable. Hence, diligent research and professional financial advice from a licensed insolvency trustee are vital!

Learning and Recovery from Corporate Insolvency

In the end, while experiencing the fallout of insolvency is distressing, it can also be a valuable learning opportunity. Trust me; I’ve taken away lessons from my encounters:

  • Improve Financial Management: Recognizing business financial vulnerabilities can lead us to instill better practices that prevent another fallout.
  • Strategies for Prevention: Developing proactive strategies around cash flow and debt circumvents future crises.
  • Recovery Opportunities: Embracing restructuring can pave the way for rejuvenation – a new beginning.

Understanding the essence of corporate insolvency empowers us, as business owners, rather than leaving us in a quagmire of despair. The strength lies in recognizing potential pitfalls and arming ourselves with knowledge and professional support!

corporate insolvency
corporate insolvency

Taking Action: Your Steps to Recovery From Corporate Insolvency

Winding the roads of entrepreneurship, the terrain gets a bit rocky. Financial distress can feel like a fog that envelops your vision, obscuring the path ahead. But I’ve learned that the moment we recognize the signs of corporate insolvency, immediate action becomes not just a choice, but a necessity. Here are some key aspects that are important to know.

Immediate Actions to Consider

When you first face financial difficulties, taking a moment to pause and assess the situation is crucial. Early warnings might manifest as cash flow problems, where the trickle of income no longer meets the outflow of expenses. Entrepreneurs feel that ominous pressure; it is as if the claims of creditors are a weight pressing down harder. It’s vital to recognize these signs early. If cash flow issues persist, I’d highly recommend consulting a licensed insolvency trustee. This can shed light on your options, offering a clearer view of the landscape.

“The earlier you act, the more options you have to remedy the situation.”

This rings true to me, particularly in my own experiences. Consultation can open doors to opportunities entrepreneurs didn’t know existed. It’s like having a map when you’re lost; it gives you direction. But what else can one do during these trying times? Conducting a thorough financial assessment of your company’s situation is essential. Dive deep into your financial statements, review your cash flow, and outline your debt obligations. This exercise can be eye-opening. I remember analyzing my finances and discovering small leaks – expenses that could be trimmed, and operational costs that could be re-evaluated. Making these assessments can help clarify the path forward.

Seeking Professional Help

In my journey, I’ve come to see professional advice not as a sign of defeat but as a strategic move. A licensed insolvency trustee can be a guiding light, navigating you through the murky waters of corporate insolvency. They provide a fresh perspective and a wealth of experience that can be incredibly beneficial. Think of them as a co-pilot during a storm. Their role involves assessing your business’s financial health and exploring restructuring options with you and providing specific financial advice tailored to your company’s unique situation. With my help as a licensed insolvency trustee, I have helped many companies to restructure their debts, avoid corporate failure and end up flourishing afterward.

Restructuring Options and Their Benefits

As I reflect on the various restructuring options available, one or more of them can be very beneficial. Options like debt consolidation, refinancing, or even asset sales can breathe new life into a struggling venture. I recall a company that opted for a debt restructuring strategy. Post-recovery, they reported a staggering 20% increase in sales! I couldn’t help but marvel at how transformative the right options could be. This solidifies the fact that businesses seeking advice early can improve their survival rates by up to 30%!

When contemplating restructuring, it’s important to weigh the pros and cons of each option. Every choice carries potential outcomes. Debt consolidation may simplify payments, while asset sales could provide immediate liquidity. What I learned was that the potential risks can lead to greater rewards when approached strategically. It’s all about creating a sustainable path forward rather than just reacting to immediate pressures.

Corporate Insolvency Conclusion: Your Journey Ahead

Recognizing financial distress is an unsettling experience. But as I’ve walked through this landscape, I’ve learned that taking action can yield fruitful paths toward recovery. Seeking professional help and evaluating corporate insolvency options is essential because there may very well be a rescue procedure I can take to prevent sinking deeper into distress.

In essence, the journey through insolvency doesn’t have to end in closure. It’s an opportunity for recovery and growth. If you’re facing similar challenges, remember that you are not alone, and by taking proactive steps, you can steer your business toward a brighter future.

I hope you enjoyed this corporate insolvency Brandon’s Blog. Do you or your company have too much debt? Are you or your company in need of financial restructuring due to distressed real estate or other reasons? 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 someone with too much personal debt.

You are worried because you are facing significant financial challenges. 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. The way we take the load off of your shoulders and devise a plan, we know that we can help you.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.

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.

The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.

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THE BANK RUPTCY RECOVERY PLAN: A COMPREHENSIVE ROADMAP TO FINANCIAL STABILITY

Bank ruptcy: Introduction

I know it looks weird, but I have noticed through our software that people wanting to find out more about the Canadian bankruptcy process are searching for the two-syllable phrase “bank ruptcy“. I started to investigate this phenomenon. It turns out that individuals may often search for the term “bankruptcy” by entering “bank ruptcy” due to a phenomenon known as “typo-based search behaviour.” This behaviour occurs when users inadvertently type a word incorrectly while still approaching the correct spelling closely enough that their search engine or browser can suggest the accurate term.

In this instance, individuals may intend to find information about “bankruptcy” but mistakenly type “bank ruptcy.” The search engine or browser, recognizing the intent, may then offer “bankruptcy” as a suggested correction, which users can select to access the desired information.

Moreover, some users may be utilizing mobile devices or keyboards with non-standard layouts, which can contribute to typographical errors or misspellings. In such instances, search engines or browsers often retain the capability to discern the user’s intent behind the query and provide relevant search results.

It is also important to acknowledge that search engines, such as Google, are designed to improve user experience by interpreting and correcting common typing errors, thereby facilitating more effective information retrieval without necessarily teaching the person the correct spelling.

Bank ruptcy: What is Bankruptcy and Where Did the Word Originate?

The term “bankruptcy” has its origins in ancient civilizations, notably in Greece and Rome, where debtors had avenues for seeking relief from their creditors through various forms of debt forgiveness or restructuring. However, the modern legal framework and procedures associated with bankruptcy are a more recent development, emerging in Europe during the 16th century.

The word bank ruptcy is likely derived from the Italian two-word phrase “banca rupta,” which translates to “broken bench” or “broken table.” In this context, “banca” refers to a “bench” or “table,” while “rupta” means “broken.” This term was historically employed in medieval Italy to describe a merchant or trader who was unable to meet their financial obligations. Business was conducted at the benches or tables of the various merchants. Consequently, their “bench” or “table,” representing their business, was broken and rendered inoperative if they ran out of money.

In the 14th century, the Old French term “banqueroute” evolved from the phrase “banquer ost,” which followed the Italian meaning and further contributed to the development of the modern word and concept of bankruptcy as we understand it today.

The term evolved to include the concept of a legal process by which a person or business could be declared insolvent and their assets liquidated to pay off creditors. Being insolvent is the financial condition that can lead to the legal bankruptcy process to allow the honest but unfortunate debtor to have financial recovery.

bank ruptcy canada
bank ruptcy

Bank ruptcy: Are you ready to take control of your financial life and gain peace of mind?

Are you facing overwhelming debt and experiencing persistent financial stress and uncertainty? Do you aspire to liberate yourself from the burdens of debt and emerge more resilient and financially savvy? If so, you are not alone.

Millions of individuals worldwide are navigating similar challenges, and it is common to feel isolated in your struggle with debt issues. However, there is a solution. By identifying the underlying causes of debt and formulating a tailored recovery plan, you can take significant steps toward financial stability.

If you are prepared to regain control of your finances, overcome debt, and lay the groundwork for a more secure future, you have come to the right place. Let us embark on this journey to financial freedom from debt together.

Bank ruptcy: Reasons for Filing for Bankruptcy

Common financial difficulties

Consumers

Many Canadians who are considering a consumer proposal or personal bank ruptcy filing face similar financial challenges, including:

  1. High-interest debt.
  2. Job loss or reduced income.
  3. Unexpected expenses.
  4. Divorce or separation.
  5. High credit card debt.
  6. Student loan debt.
  7. Mortgage debt.
  8. Tax debt.
  9. Overextension of credit.
  10. Lack of budgeting and financial planning.
  11. Financial stress and anxiety.

It’s essential for individuals experiencing financial difficulties to seek professional help, such as credit counselling or speaking to a licensed insolvency trustee (formerly called a bankruptcy trustee), to address their debt and develop a plan for financial recovery.

Businesses

Common financial difficulties Canadian businesses who need to file either a financial restructuring proposal or bank ruptcy often exhibit common danger signals such as:

  1. Cash flow problems.
  2. High debt levels.
  3. Declining sales or revenue.
  4. Increased competition.
  5. Regulatory changes.
  6. Supply chain disruptions.
  7. Economic downturns.
  8. Over-expansion.
  9. Poor financial planning.
  10. High operating costs.
  11. Lack of diversification.
  12. Insufficient working capital.
  13. Seasonal fluctuations.
  14. Lack of access to capital.
  15. Poor management decisions.
  16. Industry-specific challenges.
  17. Cybersecurity breaches.
  18. Environmental liabilities.
  19. Lack of succession planning.

If a business faces financial struggles, it’s important to, it’s important to consult a licensed insolvency trustee. They can advise on turnaround strategies and help create a recovery plan to tackle these challenges effectively.

Impact of debt on individuals and businesses

Debt can significantly influence both individuals and businesses in various ways. For individuals, the burden of overwhelming debts may result in considerable financial stress, which can manifest as anxiety and, in severe cases, depression. When debt becomes unmanageable, it can hinder one’s ability to meet daily expenses, potentially leading to missed monthly payments, impaired credit scores, and a pervasive sense of despair.

Additionally, consumer debts can restrict an individual’s financial flexibility, making it challenging to make substantial purchases, assume new financial responsibilities, or pursue long-term financial aspirations. Moreover, the strain of financial difficulties can impact personal relationships, as stress related to finances often leads to conflicts and tension among family and friends.

Similarly, for businesses, the implications of debt issues can be equally challenging. Elevated outstanding debt levels can create cash flow issues, complicating a company’s ability to fulfill its financial commitments, including employee salaries, supplier payments, and tax obligations.

Furthermore, substantial debt can curtail a business’s capacity to invest in new opportunities, foster innovation, or expand operations, ultimately hindering growth and sustainability. Understanding debt’s effects is crucial for individuals and businesses to navigate financial challenges effectively and maintain long-term stability.

Bank ruptcy: The Bankruptcy Process in Canada

Obtaining a Free Debt Assessment

If you’re having difficulty keeping up with your debt payments and feeling stressed about your financial situation, you might want to seek help from a licensed insolvency trustee. These professionals are qualified to guide you through the often complicated process of managing debt. One of the key services they provide is a free debt assessment.

This assessment involves a thorough look at your finances, including your income, expenses, assets, and debts. The trustee will work with you to pinpoint the main issues contributing to your debt and help create a personalized plan to get you back on your feet.

The best part is that a free debt assessment from a licensed insolvency trustee is completely free, with no obligation to proceed with any debt relief options. This means that you can get a clear understanding of your financial situation and explore your options without incurring any costs or risks.

During the assessment, the trustee will also be able to advise you on the best course of action to take, whether that’s a debt consolidation loan, a debt management plan, or even bank ruptcy. By taking advantage of a free debt assessment from a licensed insolvency trustee, you can gain the clarity and confidence you need to take control of your finances and start building a brighter financial future.

Necessary Forms to Declare Bankruptcy

The bankruptcy procedure in Canada is a complex and intimidating process, but it’s essential to understand the necessary forms and procedures to navigate it successfully. In Canada, the necessary bankruptcy paperwork is to declare bank ruptcy is prepared by a licensed insolvency trustee, who will guide you through the process and ensure that all required documents are completed accurately and on time.

More than that, the insolvency trustee must be able to explain your options to you and help you feel comfortable that the option you choose, is the best one for your circumstances. The information that the insolvency trustee uses to prepare the forms comes from the initial intake form the licensed trustee provides to you. From that form, the Trustee can then prepare the required documents.

The main documents required to file either a consumer proposal or for bank ruptcy are:

  1. Either the consumer proposal or the assignment in bankruptcy.
  2. The statement of affairs outlines the assets and liabilities of the debtor and includes other important information for both unsecured creditors and the Office of the Superintendent of Bankruptcy Canada to consider.
  3. The debtor’s statement of monthly income and expenses.
  4. The notice to the debtor outlining their responsibilities in the insolvency process chosen, be it a consumer proposal or bankruptcy.

Your licensed insolvency trustee will provide you with these forms and guide you through the process of completing them accurately and submitting them to the Office of the Superintendent of Bankruptcy Canada. By completing these forms and following the necessary procedures, you can ensure that your bankruptcy is processed efficiently and effectively and that you can start rebuilding your financial future.

Role of Licensed Insolvency Trustees

Licensed Insolvency Trustees are essential participants in the Canadian debt relief landscape. These professionals possess specialized expertise in the field of insolvency, and their work is regulated by the Canadian government, which oversees the entire insolvency process and bankruptcy laws in the country. As the only individuals authorized by the federal government, insolvency trustees play a critical role in assisting both individuals and businesses as they navigate the often complex procedures associated with debt relief, including bankruptcy, consumer proposals, and financial restructuring.

Insolvency trustees serve as neutral third parties, allowing them to offer objective advice and support to those experiencing financial challenges. They collaborate closely with creditors to negotiate settlements and develop payment plans, and they can facilitate debt restructuring efforts that lead to a more sustainable financial future.

Engaging the services of a licensed insolvency trustee can provide individuals and businesses with valuable reassurance, as they can trust in the expertise and guidance of these qualified professionals during their journey toward financial recovery.

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bank ruptcy

Advantages of Filing for Bank ruptcy in Canada

Filing for a consumer proposal, corporate restructuring or bank ruptcy for individuals or corporate bankruptcy in Canada can provide several advantages, including:

  1. Debt Relief: It provides a fresh start by discharging most of your debts, allowing you to start over financially.
  2. Protection from Creditors: An insolvency process provides automatic protection from creditors, which means they cannot pursue you for payment or take legal action against you.
  3. Stop Wage Garnishments: A consumer proposal or bankruptcy can stop wage garnishments, which is a legal process when judgment creditors take a portion of your paycheque to pay off debts.
  4. Stop Collection Calls and legal proceedings: Upon filing, you can stop collection calls and letters from creditors by referring them to your insolvency trustee. This gives you peace of mind and reduces stress.
  5. Impact on Credit Score: It is true that an insolvency process initially worsens a person’s credit score. However, it allows you to use certain techniques that we teach you to rebuild credit and over time improve your credit rating.
  6. Protection of Assets: A consumer proposal can protect all of your assets. Bankruptcy protects your exempt property. In many cases, it stops your home or car from being seized by creditors.
  7. Simplified Financial Life: The insolvency process simplifies your financial life by eliminating debt and providing a clear plan for moving forward.
  8. Professional Guidance: Insolvency trustees provide guidance and support throughout the process.
  9. Discharge of Debts: Over time, the insolvency process allows you to discharge most debts, including credit card debt, loans, and other unsecured debts.
  10. Fresh Start Perspective: Bankruptcy, a consumer proposal and financial restructuring all provide a fresh start, allowing you to start over and make a new beginning.
  11. Reduced Stress: A successful insolvency process reduces stress and anxiety caused by debt, allowing you to focus on rebuilding your life.
  12. Protection from Tax Debt: It protects you from tax debt which can be a significant burden for many individuals.

It’s important to note that bankruptcy is a serious legal process and should only be considered as a last resort. There are various debt relief options as alternatives to bankruptcy for you to consider before resorting to bankruptcy. It’s essential to consult with a Licensed Insolvency Trustee to determine which of the many options is best for your specific situation.

Bank ruptcy: Resources for Bank ruptcy Information

There are several resources available for bankruptcy information in Canada, including:

  1. Office of the Superintendent of Bankruptcy Canada: The Office of the Superintendent of Bankruptcy Canada is the federal agency responsible for overseeing the bankruptcy and insolvency system in Canada. Their website provides information on bankruptcy, consumer proposals, and other debt-relief options.
  2. Licensed insolvency trustees: They and their websites can They and their websites can provide guidance and advice on bankruptcy and other debt-relief options.
  3. Credit Counselling Services: Legitimate non-profit c services, such as the Credit Counselling Society, provide free or low-cost advice and guidance on managing debt and avoiding bankruptcy. Financial institutions: Many banks and credit unions provide resources and information about bankruptcy and debt relief options.
  4. Government Websites: The Government of Canada’s website provides information on bankruptcy, including a guide to bankruptcy and a list of licensed insolvency trustees.

    bank ruptcy canada
    bank ruptcy

Bank ruptcy Conclusion: Moving Forward After Bank ruptcy

Here is what I tell everyone about moving forward after bank ruptcy to have a successful and stress-free life:

  1. Take responsibility: Acknowledge that you made mistakes and take responsibility for your financial decisions. This will help you to learn from your mistakes and positively move forward.
  2. Continue budgeting: Part of the personal insolvency process involves financial counselling and proper budgeting. A budget shows you what you earn each month and therefore how much you have, after tax, to spend. Allocating your earnings over your essential needs first and sticking to that plan will keep you out of debt trouble in the future.
  3. Establish an emergency fund: It is important to try to save part of your monthly income to create an emergency fund that can pay for unforeseen expenses. This will help you reduce the need for debt when unexpected financial demands arise.
  4. Focus on rebuilding credit: Rebuilding credit takes time, but it’s essential to start building a positive credit history. Make on-time payments, keep credit utilization low, and monitor your credit report regularly.
  5. Support: Finally, It’s important to reach out for support from friends, family, or even a financial advisor. Having a solid support system can keep you motivated and focused on your goals.

I hope you enjoyed this bank ruptcy 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 someone with too much personal debt.

You are worried because you are facing significant financial challenges. 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 bank ruptcy. 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. The way we take the load off of your shoulders and devise a plan, we know that we can help you.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team.

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.

The information provided in this Brandon’s Blog is intended for educational purposes only. It is not intended to constitute legal, financial, or professional advice. Readers are encouraged to seek professional advice regarding their specific situations. The content of this Brandon’s Blog should not be relied upon as a substitute for professional guidance or consultation. The author, Ira Smith Trustee & Receiver Inc. as well as any contributors to this Brandon’s Blog, do not assume any liability for any loss or damage resulting from reliance on the information provided herein.

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NAVIGATING BUSINESS INSOLVENCY IN CANADA: A LAWYER AND ACCOUNTANT’S COMPREHENSIVE GUIDE TO MASTERING INSOLVENCY LAW

Introduction to Business Insolvency

Welcome to our Brandon’s Blog where we will explore the intricate world of insolvency and its profound impact on businesses in Canada from my perspective as a professional in the field. In this exploration of business insolvency, we will uncover the implications that insolvency brings for creditors, shareholders, their lawyers and accountants, and employees alike.

Understanding the complexities of financial distress is crucial for businesses to navigate through turbulent times successfully. Join me as we discuss effective strategies and best practices to mitigate the challenges of insolvency, ensuring a smoother transition toward financial stability.

Definition of Business Insolvency

Business insolvency in the Canadian context refers to the financial state of a business where it is unable to pay its debts as they become due. It is a financial condition, not a legal one. Do not confuse the business or company with the financial condition of being an insolvent person with the legal condition of being involved in bankruptcy proceedings. Corporate insolvency is not corporate bankruptcy.

Corporate insolvency results in the business being unable to pay its debts when due which may make it impossible for the business to continue its operations. Insolvent companies may very well end up in the legal state of bankruptcy or as an alternative to bankruptcy, in insolvency restructuring proceedings.

Business insolvency can force the business to choose one of the insolvency options for businesses, including bankruptcy filings or proposals for restructuring and repayment plans under the Bankruptcy and Insolvency Act (Canada) (BIA).

In Canada, the number of business insolvencies has been on the decline for many years, but the impact of the COVID-19 pandemic has seen a reversal of this trend. Business insolvency filings are on the rise again. However, there are many small businesses where a business bankruptcy process does not make any sense as there are either no or few assets to offset the large company debts. We get calls daily from entrepreneurs of such companies where we tell them it is in their best interests to merely close the business doors rather than spend money to put their company into bankruptcy.a picture of an overwhelmed man to represent the owner of an insolvent company turning into a picture of a calm and happy business owner representing a solvent and profitable company with people walking up a staircase representing company profitability and growth

Causes and Warning Signs of Business Insolvency

Economic Downturn and Market Volatility

One of the primary contributors to business insolvency in Canada is the unpredictable nature of economic fluctuations and market volatility. As businesses strive to adapt to shifting market trends and consumer demands, they are often met with unforeseen challenges that can strain financial resources. Economic downturns, changes in consumer behaviour, and global market dynamics all play a pivotal role in determining the financial health of businesses across various sectors.

Cash Flow Problems: Overleveraging and Excessive Debt Burden

Another significant factor that can precipitate business insolvency is overleveraging and an excessive debt burden. While leveraging can be a strategic tool for growth and expansion, it becomes problematic when businesses accumulate debt beyond their capacity to repay. High levels of debt, coupled with declining revenues or profitability, can create a precarious financial situation, ultimately leading to insolvency if left unaddressed.

Poor Financial Planning and Management

Effective financial management and planning are essential components of sustainable business operations. However, inadequate financial oversight and poor planning can leave businesses vulnerable to insolvency. From misaligned budgeting strategies to ineffective cash flow management, deficiencies in financial management practices can exacerbate existing challenges and hasten the onset of insolvency.

Navigating the complex regulatory landscape in Canada can pose significant challenges for businesses, especially concerning compliance and legal matters. Failure to adhere to regulatory requirements, such as tax obligations or industry-specific regulations, can result in legal disputes, penalties, and fines, placing additional strain on financial resources. Moreover, litigation and legal challenges can further impede business operations and contribute to business insolvency.

Technological Disruption and Industry Shifts

The rapid pace of technological innovation and industry shifts can disrupt traditional business models and market dynamics, presenting both opportunities and challenges for businesses in Canada. Failure to embrace technological advancements or adapt to changing industry trends can render businesses obsolete or inefficient, leading to a decline in competitiveness and financial viability. As such, businesses must remain agile and proactive in leveraging technology to stay ahead of the curve and mitigate the risk of insolvency.

External Shocks and Unforeseen Events

External shocks and unforeseen events, such as natural disasters, geopolitical instability, or pandemics, can have profound implications for business continuity and financial stability. The unprecedented disruptions caused by such events can severely impact supply chains, disrupt operations, and erode consumer confidence, thereby jeopardizing the financial health of businesses. While certain external shocks may be beyond the control of businesses, proactive risk management and contingency planning are essential to mitigate their adverse effects.

Remember, proactive planning, decisive action, and collaboration with knowledgeable professionals are the cornerstones of navigating business insolvency effectively.

Business Insolvency: Overview of Insolvency Law in Canada

In Canada, insolvency law plays a vital role in guiding businesses through financially distressed situations. As a professional knowledgeable in this field, I will delve into the types of insolvency proceedings and the key legislation and regulations that govern insolvency processes.

  • Types of Insolvency Proceedings: In Canada, businesses can navigate various types of insolvency proceedings:
    • bankruptcy;
    • proposal;
    • corporate restructuring;
    • receivership.

Bankruptcy involves the liquidation of assets to repay creditors, while a proposal allows for negotiating repayment plans to avoid bankruptcy. For larger corporations, corporate restructuring under different legislation than a proposal (discussed next) is available. Finally, when a secured creditor enforces its security to liquidate the business assets, that is receivership.

Understanding the nuances between these proceedings is essential for businesses facing financial challenges. All of these proceedings are described in detail in my previous blogs in the Lawyer and Accountant Series over the last few weeks.

  • Key Legislation and Regulations: The BIA applies to all business bankruptcy, proposal and receivership proceedings in Canada. The Companies’ Creditors Arrangement Act (CCAA) applies to corporations that owe more than $5 million to creditors who wish to avail themselves of Canadian bankruptcy protection to restructure their operations and finances.

These are the pivotal legislation for an insolvent person, be they a consumer, individual, proprietorship, partnership or corporation. They govern personal insolvency and business insolvency in Canada. The BIA will govern any personal bankruptcy or corporate bankruptcy.

Understanding these aspects of insolvency law is imperative for businesses as they navigate through financial difficulties. By recognizing the procedures and regulations outlined in the key legislation, businesses can protect their interests and work towards a successful resolution of insolvency issues.

As we continue to unravel the intricate landscape of insolvency law in Canada, I will now explore the specific roles of lawyers and accountants in business insolvency, shedding light on their invaluable contributions to navigating insolvency proceedings effectively.a picture of an overwhelmed man to represent the owner of an insolvent company turning into a picture of a calm and happy business owner representing a solvent and profitable company with people walking up a staircase representing company profitability and growth

Role of a Lawyer in Business Insolvency

Lawyers play a critical role in guiding businesses through the challenging landscape of insolvency. There are many complexities and responsibilities involved in representing clients during financial distress. Let’s explore the legal responsibilities and duties, as well as effective strategies for representing clients in insolvency proceedings.

A lawyer’s primary responsibility is to ensure that their clients navigate the legal proceedings smoothly, legally and ethically. Upholding the highest standards of professionalism and compliance with relevant laws is paramount in protecting the interests of all involved parties. From providing sound legal advice to negotiating on behalf of clients, every action must align with the legal framework outlined in insolvency law.

In insolvency proceedings, it’s essential to draft and review legal documents meticulously, such as restructuring plans and agreements, to safeguard the rights of creditors, shareholders, and employees. Transparency and adherence to the law are non-negotiable aspects that guide a lawyer’s responsibilities in representing clients effectively.

Strategies for Representing Clients

When representing clients in business insolvency cases, adopting a strategic approach is key to achieving successful outcomes. Clear communication with clients to understand their objectives and concerns forms the foundation of developing a tailored strategy. By conducting in-depth research, analyzing financial documents, and collaborating with other professionals like accountants and insolvency practitioners, lawyers can offer comprehensive legal services.

Each client’s situation is unique, requiring a personalized strategy that addresses their specific needs and goals. Through a combination of legal expertise, practical considerations, and proactive communication, lawyers strive to navigate the complexities of insolvency proceedings effectively. By working collaboratively with clients and other professionals, especially the insolvency professionals, they can secure the best possible resolutions for their clients’ insolvency challenges.

Role of an Accountant in Business Insolvency

Accountants also play a critical role in the realm of business insolvency. The CPA understands the importance of financial analysis and compliance with accounting standards in navigating through the complexities of insolvency. Let’s explore how accountants play a pivotal role in helping businesses facing financial distress.

Financial Analysis and Reporting

Financial analysis and reporting are fundamental aspects of dealing with business insolvency. The accountant’s role involves carefully assessing the financial health of a company experiencing insolvency issues. By analyzing crucial financial statements, cash flow projections, and other relevant data, CPAs can provide insights that help the business understand its current financial situation.

Through their expertise in financial analysis, CPAs identify key areas of concern and create accurate reports that are essential for stakeholders, including creditors, shareholders, and employees, to make informed decisions. Effective financial analysis enables businesses to develop strategies for managing financial distress, paving the way for a smoother resolution of insolvency issues.

Compliance with Accounting Standards

Compliance with accounting standards is a cornerstone for businesses navigating insolvency in Canada. The CPA will ensure that the financial statements are prepared in adherence to the relevant accounting principles and regulations. This commitment to compliance promotes transparency and upholds the integrity of financial reporting.

By maintaining strict compliance with accounting standards, businesses demonstrate their dedication to ethical practices and financial accuracy. This, in turn, fosters trust among creditors, shareholders, and other stakeholders during times of financial distress. Upholding accounting standards is crucial for businesses to mitigate legal and financial risks, emphasizing the need for meticulous attention to regulatory requirements.

CPAs recognize the significance of financial analysis and compliance with accounting standards in guiding businesses through the insolvency process. By providing invaluable financial expertise ensuring adherence to regulatory guidelines, and working with other professionals, especially the insolvency professionals, the external CPA supports businesses in making well-informed decisions and navigating the complexities of business insolvency successfully.

This is how both non-insolvency lawyers and accountants can still play a meaningful role in business insolvency, especially in a business restructuring process. A successful outcome of the business restructuring is the best way for the existing lawyer and accountant to maintain both the client but also a close meaningful business relationship for the long term.a picture of an overwhelmed man to represent the owner of an insolvent company turning into a picture of a calm and happy business owner representing a solvent and profitable company with people walking up a staircase representing company profitability and growth

Impact of Business Insolvency

Job Losses and Unemployment

The impact of Canadian business insolvency on job losses and unemployment can be significant. When a business becomes insolvent, it may be forced to lay off employees or shut down entirely, leading to job losses. This can result in a higher unemployment rate as workers find themselves without a job and struggle to secure new employment.

The COVID-19 pandemic has exacerbated these challenges, with many entrepreneurial businesses in Canada continuing to face financial difficulties and the continued risk of closure. Such businesses are still struggling to return to normal revenues, carry unpaid debt taken on during the pandemic, and face rising costs and a shortage of labour.

Targeted measures and support for small businesses are crucial to prevent closures and job losses. By assisting, such as financial aid, access to resources, and support for restructuring, the impact of business insolvency on job losses and unemployment can be mitigated. Additionally, policies like the recent amendments to prioritize creditor claims related to defined-benefit pension plans can help protect employees’ financial security in the event of insolvency.

Effects on Suppliers and Creditors

The effects of Canadian business insolvency on suppliers and creditors can be significant. When a business becomes insolvent, suppliers may face challenges in receiving payment for goods or services provided to the business. This can result in financial difficulties for the suppliers themselves, especially if they rely heavily on the insolvent business as a major customer.

Creditors, including financial institutions and other lenders, may also experience losses when a business files for bankruptcy or proposes a restructuring plan. In most cases, creditors will not receive the full amount owed to them, or they may have to wait a significant amount of time to receive any repayment.

Overall, Canadian business insolvency can have a ripple effect on suppliers and creditors, leading to financial challenges and losses for those involved in the business’s operations. Suppliers and creditors need to assess their credit risks before extending credit and take appropriate measures to protect their interests in the event of a business insolvency.

Potential Closure or Sale of the Business

In Canadian business insolvency, the potential closure or sale of the business can have significant implications for the business owner, employees, creditors, and the economy as a whole. If an entrepreneurial business is unable to meet its financial obligations and is forced to close its doors, it can result in job losses, financial losses for creditors, and a decrease in economic activity in the local community.

For the business owner, the closure or sale of the business can mean the end of their entrepreneurial venture, financial loss, and potential personal liability for both Director liabilities as well as any corporate debt personally guaranteed by the entrepreneur. Such liabilities can have a significant impact on their financial well-being and prospects.

For employees, the closure of a business can result in job loss, uncertainty, and financial hardship. They may struggle to find new employment, especially if the closure is due to broader economic challenges in the industry or region.

For creditors, the closure of a business can mean they probably will not recover the full amount owed to them. They may have to write off the debt as a loss, which can impact their financial stability and ability to extend credit to other businesses.

In terms of the economy, the closure or sale of a business can contribute to a decrease in economic activity, reduced consumer confidence, and a negative impact on the overall business environment. It can also lead to a loss of tax revenue for the government, further impacting public services and infrastructure.

Overall, the potential closure or sale of a business in a Canadian business insolvency is a complex and challenging situation that requires careful consideration of the implications for all stakeholders involved. It underscores the importance of effective financial management, planning, and risk mitigation strategies for entrepreneurial businesses to avoid insolvency and closure in the first place.

Reputation Damage

Reputation damage arising from a Canadian business insolvency can have long-lasting effects on a company. When a business becomes insolvent, it is unable to fulfill its financial obligations, leading to creditors and suppliers losing trust in the company. This can result in difficulty in securing credit, partnerships, and contracts in the future.

Moreover, news of a business insolvency can spread quickly, damaging the company’s reputation among customers and stakeholders. Customers may lose faith in the company’s ability to deliver products or services, leading to a loss of business and revenue. Employees may also become concerned about job security and employee wages. Morale suffers and the most qualified employees can find new jobs quickly. All of this leads to morale suffering which makes the business insolvency closer to a self-fulfilling prophecy.

Reputation damage from a business insolvency can be difficult to overcome. Rebuilding trust with creditors, suppliers, customers, and employees may take time and effort. Companies trying to implement a restructuring insolvency plan need to implement strong communication strategies to address concerns and demonstrate a commitment to financial stability and responsibility.

Overall, reputation damage arising from Canadian business insolvency can have significant consequences for a company’s long-term success and viability. Businesses need to address insolvency issues promptly and transparently to mitigate potential reputational harm.

Initiating the Insolvency Process

In Canada, the process of initiating insolvency proceedings is a critical step for businesses facing financial distress. There are two kinds of processes; 1. voluntary and 2. involuntary.

The voluntary process normally begins with the insolvent business formally declaring insolvency by filing for bankruptcy protection under either the BIA or CCAA to begin the restructuring process. Alternatively, the insolvent business can file corporate bankruptcy if liquidation is the only answer for a business that is no longer viable.

The involuntary process would normally begin with either a secured creditor privately appointing or making an application to the Court for the appointment of a receiver. Alternatively, one or more unsecured creditors owed in total at least $1,000 can launch a Bankruptcy Application against the insolvent company.

Seeking professional guidance from experts like insolvency lawyers and licensed insolvency trustees is essential to navigate this complex process effectively. Businesses can begin addressing their financial challenges by initiating insolvency proceedings and working toward a resolution.

Managing Stakeholder Relationships

Managing stakeholder relationships is paramount during times of business insolvency in Canada. Creditors, shareholders, and employees all have vested interests in the outcome of insolvency proceedings. Effective communication and transparency are essential to build trust and mitigate potential conflicts. By keeping stakeholders informed, addressing their concerns, and involving them in decision-making processes, businesses can navigate insolvency proceedings with clarity and confidence.

Business insolvency is a complex issue that requires careful navigation. By understanding the implications for all stakeholders and seeking professional advice, businesses can better prepare for financial challenges.a picture of an overwhelmed man to represent the owner of an insolvent company turning into a picture of a calm and happy business owner representing a solvent and profitable company with people walking up a staircase representing company profitability and growth

There are two main avenues for addressing legal issues within insolvency cases: 1. Negotiation and Mediation Techniques, as well as 2. Litigation and Court Proceedings. I will now delve into the strategies and approaches essential for navigating through challenging financial times successfully.

Negotiation and Mediation Techniques

When faced with legal issues within insolvency cases, negotiation and mediation techniques can be powerful tools for finding amicable solutions. Insolvency trustees find that engaging in constructive dialogue with stakeholders can often lead to mutually beneficial outcomes. By exploring innovative and collaborative approaches, businesses can avoid unnecessary conflicts and costly legal battles.

  1. Effective negotiation involves understanding the concerns and needs of all parties involved.
  2. Mediation offers a platform for open communication, ensuring that diverse perspectives are heard and respected.
  3. Skilled mediators facilitate the process, guiding toward agreements that protect the interests of creditors, shareholders, and employees.

By adopting a strategic and empathetic approach to negotiation and mediation, businesses can navigate the complexities of insolvency issues with resilience and integrity. The ability to find common ground and explore creative solutions is essential in any business restructuring.

Litigation and Court Proceedings

While negotiation and mediation are preferred methods for resolving legal issues within the insolvency case, there are instances where litigation and court proceedings become inevitable. This is more so within a liquidating bankruptcy proceedings rather than in a business reorganization. Licensed insolvency trustees understand the importance of legal recourse in protecting the rights and interests of all stakeholders involved.

  1. Litigation provides a formal platform for resolving disputes and making legally binding decisions.
  2. Court proceedings ensure that insolvency matters are adjudicated fairly and by the law.
  3. Legal experts specializing in insolvency law offer invaluable guidance throughout the litigation process.

By preparing meticulously and engaging competent legal representation, businesses can navigate the complexities of court proceedings with confidence. While litigation may signify a more adversarial approach, it can also lead to definitive resolutions that provide clarity and direction in times of financial turmoil.

4 Common Business Insolvency FAQs

  1. What is the difference between company insolvency and personal bankruptcy?

Company insolvency refers to a company that is unable to pay its bills and debts owed, while personal bankruptcy is a legal process for individuals who cannot pay their bills to eliminate debt.

  1. When should a company consider filing for bankruptcy?

A company should consider filing for bankruptcy or bankruptcy protection to restructure when they are facing overwhelming financial difficulties, such as a loss of income, high levels of debt, inadequate cash flow, and reliance on personal credit to meet obligations. This only makes sense if action is taken relatively early in the insolvency when there are still assets that can be used in perhaps a different corporate form to continue to run the viable part of the insolvent business.

  1. How much debt does a business need to owe to file for bankruptcy in Canada?

In Canada, an insolvent person or insolvent business needs to owe $1,000 or more to unsecured creditors to be eligible to file for bankruptcy.

  1. Can sole proprietorships and partnerships file for business bankruptcy?

Yes, sole proprietorships and partnerships can file for business bankruptcy, and they would need to work with a Licensed Insolvency Trustee to do so. In these forms of business, it is the sole proprietor or partners who would be filing bankruptcy. As this would be a consumer insolvency, the bankruptcy rules dealing with the insolvency of individuals would guide this kind of bankruptcy process.

Business Insolvency Conclusion

Navigating business insolvency in Canada is a multifaceted challenge that requires careful consideration and strategic planning. As a licensed insolvency trustee, I have explored the intricacies of insolvency law and its impact on businesses, creditors, shareholders, and employees. Understanding the complexities of insolvency is pivotal for businesses to weather financial storms successfully for a brighter financial future.

The role of corporate lawyers and accountants in helping to guide businesses through insolvency proceedings is an important one. By recognizing the significance of legal responsibilities, financial analysis, and compliance with accounting standards, businesses, with the help of a Licensed Insolvency Trustee and insolvency legal counsel can tackle insolvency issues with confidence and resilience.

I hope you enjoyed this business insolvency Brandon’s Blog. Individuals and business owners must take proactive measures to address financial difficulties, consumer debt and company debt and promptly seek assistance when necessary. It is crucial to recognize that financial stress is a prevalent concern and seeking help is a demonstration of fortitude, rather than vulnerability. Should you encounter challenges in managing your finances and find yourself burdened by stress, do not delay in pursuing aid.

Revenue and cash flow shortages are critical issues facing people, entrepreneurs and their companies and businesses with debt problems that are in financial distress. Are you now worried about just how you or your business are going to survive? Are you worried about what your fiduciary obligations are and not sure if the decisions you are about to make are the correct ones to avoid personal liability? Those concerns and more associated with your company debt are obviously on your mind.

The Ira Smith Team understands these overwhelming debt financial health concerns. More significantly, we know the requirements of the business owner or the individual who has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious. It is not your fault you can’t fix this problem on your own and it does not mean that you are a bad person. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore.

The Ira Smith Team uses innovative and cutting-edge methodologies, to adeptly navigate you through the intricacies of your financial challenges ensuring a resolution to your debt-related predicaments without resorting to the rigours of the bankruptcy process. We can get you debt relief now! We have helped many entrepreneurs and their insolvent companies who thought that consulting with a Trustee and receiver meant their company would go bankrupt.

On the contrary. We helped turn their companies around through financial restructuring. 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.

The Ira Smith Trustee & Receiver Inc. team understands 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 listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your life, to begin your debt-free life, Starting Over, Starting Now.a picture of an overwhelmed man to represent the owner of an insolvent company turning into a picture of a calm and happy business owner representing a solvent and profitable company with people walking up a staircase representing company profitability and growth

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CANADIAN INSOLVENCY CASES: DECODING THE DETAILED TAXATION PROCESS FOR SUCCESSFUL COURT OFFICER FEES APPROVAL

Canadian insolvency: Introduction

As Canadian insolvency laws progress, so do the regulations surrounding the taxation of court officer fees. These fees often make up a considerable proportion of the expenses incurred during insolvency proceedings. It is absolutely essential for insolvency practitioners, legal professionals, and other parties involved in such cases to comprehend the critical factors that affect the taxation of court officer fees.

Knowing the taxation procedure for court officer fees in Canadian insolvency cases that are supervised by the court is significant for various reasons. The following points highlight some of the crucial aspects to consider:

  1. Promoting Transparency and Accountability: The taxation procedure guarantees transparency and accountability in the assessment of court officer fees. It encompasses an autonomous evaluation of the charges imposed by court-appointed officials, such as trustees, receivers, monitors, or liquidators. By comprehending this procedure, interested parties can ascertain that the fees are reasonable and justified.
  2. Safeguarding Stakeholder Interests: Insolvency proceedings encompass multiple stakeholders, including lenders, borrowers, and stockholders. The taxation process aids in safeguarding their interests by scrutinizing the fees imposed by court officers. It ensures that the charges align with the services rendered and prevents exorbitant or unwarranted levies.
  3. Fostering Confidence in the System: By establishing a robust taxation process, the court-supervised insolvency system in Canadian proceedings instills confidence among stakeholders. They can place their trust in the fact that the fees imposed by court officers undergo independent scrutiny and are not arbitrary. This bolsters the overall credibility and integrity of the Canadian insolvency process.
  4. Alleviating Financial Burdens: Insolvency proceedings can present financial hardships for both debtors and creditors alike. Familiarizing oneself with the taxation process enables stakeholders to identify any potential excessive fees and seek recourse if necessary. This helps mitigate additional financial burdens on parties already grappling with financial difficulties.
  5. Facilitating Efficient Resolution: The taxation of costs process fosters efficiency in resolving disputes pertaining to court officer fees. In the event of a disagreement over the charges imposed, a taxation hearing is conducted to settle the dispute. By grasping the intricacies of the process, stakeholders can navigate it adeptly, leading to a prompt resolution and averting unnecessary delays.

To provide a comprehensive overview, it is of utmost importance to grasp the intricacies of the taxation procedure pertaining to the fees charged by court officers in Canadian insolvency proceedings under court supervision. Such understanding not only ensures transparency but also safeguards stakeholder interests, fosters confidence in the system, mitigates financial burdens, and facilitates the efficient resolution of disputes related to fees.

In this Brandon’s Blog, I delve into the multifaceted aspects that shape the taxation of costs. Through this exploration, my aim is to offer valuable insights that will assist you in navigating this intricate domain. Come join us as we embark on an exploration of the nuanced intricacies of Canadian insolvency law and the myriad factors influencing the taxation of court officer fees.

Understanding The Role of Court Officers in Canadian Insolvency Cases

Definition and Role of Court Officers

Within the framework of a Canadian insolvency proceeding supervised by the court, a crucial role is fulfilled by the Licensed Insolvency Trustee (LIT). Acting as a court-designated official, the LIT plays an integral part in facilitating the management of the case and ensuring a fair and efficient process.

Endowed with accreditation from the Office of the Superintendent of Bankruptcy (OSB), LITs as insolvency professionals are highly skilled experts possessing extensive expertise and experience in the realm of bankruptcy and insolvency. They act as unbiased and autonomous professionals, tasked with overseeing the insolvency proceedings in compliance with legal norms and regulations.

As a court-appointed officer, the LIT’s responsibilities are multifaceted and encompass a wide array of duties. These may encompass:

  • When confronted with the financial circumstances of a debtor, it becomes imperative to adopt a comprehensive methodology. Licensed Insolvency Trustees (LITs) excel at appraising the debtor’s assets and ascertaining the optimal strategy for disbursing them among creditors. Through meticulous evaluation of the debtor’s fiscal position, LITs can contribute to guaranteeing a just and impartial allocation of assets to all relevant parties. With their proficiencies in debt and asset administration, LITs serve as invaluable for individuals confronted with financial problems.
  • Facilitating meetings of creditors: LITs organize and conduct meetings where creditors can voice their concerns, vote on important matters, and provide their consent or objections regarding the insolvency process.
  • Developing a proposal or managing bankruptcy proceedings: Depending on the type of insolvency proceeding (such as a consumer proposal or bankruptcy), LITs may assist debtors in developing a proposal to settle their debts or administer the bankruptcy process if the proposal is not viable.
  • Investigating the affairs of the debtor: LITs have the authority to investigate the debtor’s financial affairs, including examining their records, transactions, and conduct, to identify any fraudulent activities or preferences that may impact the distribution of assets.

The above is the case regardless of whether it is a personal insolvency administration or a corporate insolvency one.

canadian insolvency
canadian insolvency

Types of Court Officers in Canadian insolvency cases

In the course of Canadian insolvency proceedings, the court possesses the authority to carry out diverse designations involving a LIT to supervise and manage the operation. These designations hinge upon the nature of the insolvency instance and the particular circumstances. Here, I present the normal kinds of designations that a court could enact:

Bankruptcy Trustee

In scenarios of personal or corporate bankruptcy, the LIT acting as the trustee of the bankrupt estate is automatically an officer of the court. The trustee assumes the responsibility of administering the bankruptcy, handling the assets, and disbursing the proceeds to creditors in accordance with the Bankruptcy and Insolvency Act (Canada) (BIA).

Interim Receiver

In certain Canadian insolvency cases, the court may opt to appoint an interim receiver under the BIA, who will serve as a temporary custodian. The primary goal of an interim receiver is to safeguard and preserve the debtor’s assets during the insolvency process.

They are authorized to take control of the debtor’s property and make necessary arrangements to ensure its proper management and security. Typically, an interim receiver is appointed when:

  1. there is a risk of asset dissipation before the court hears an Application for Bankruptcy Order; or
  2. when the debtor intends to sell some or all of its operating assets during a Division I Proposal administration and requires court approval for the sale, with the LIT who is acting as Proposal Trustee also assisting in the sale.

Proposal Trustee

In cases where an insolvent debtor files a consumer proposal or a corporate proposal under the BIA, the LIT acting as the proposal trustee of the insolvent debtor is automatically an officer of the court. The proposal trustee is accountable for evaluating the proposal, conducting meetings with creditors, supervising the restructuring process and the implementation of the approved proposal and making the necessary distribution to the unsecured creditors.

Monitor

In larger corporate insolvencies under the Companies’ Creditors Arrangement Act (CCAA), the court designates a LIT to act as a monitor. The monitor acts as an independent third party and oversees the affairs of the debtor, ensures adherence to the CCAA procedure, and reports to the court and creditors. The monitor also oversees the restructuring process and the implementation of the restructuring plan.

Receiver

In the course of a Canadian insolvency proceeding, a receiver appointed by the court assumes control and oversees the management of a debtor’s assets. The receiver’s principal purpose revolves around the preservation of creditors’ interests and the facilitation of an organized administration process.

The appointment through a court-ordered receivership commonly occurs in situations where the debtor has defaulted and has no capacity to fulfill its financial obligations or when the need arises to safeguard and conserve the value of the debtor’s assets.

The receiver possesses extensive authority granted by the court to competently execute their responsibilities. These authorities encompass aspects such as assuming possession and control of the debtor’s assets, managing and liquidating assets, collecting outstanding debts, investigating the debtor’s financial matters, and disbursing proceeds to creditors in alignment with the court’s directives.

Liquidator

The court can appoint a liquidator in the case where the debtor company is solvent but the business is no longer viable. The company, with the assistance of the LIT who is the court-appointed liquidator, can collect on and sell its assets and there will be sufficient funds to pay off all the creditors and have money left over to distribute to the shareholders.

What do all of these court officers have in common?

All of the above various court officer appointments have one thing in common. To ensure an impartial and equitable process, the LIT appointed as the court officer assumes the role of an autonomous entity separate from the debtor and the creditors. They remain accountable to the court and bear a fiduciary duty toward the stakeholders involved.

The appointment of a court officer aims to facilitate the systematic resolution of the Canadian insolvency case (or in the case of a liquidation, the liquidation administration) while safeguarding the interests of the stakeholders involved, by entrusting the responsibilities to the LIT acting as an independent party possessing the requisite expertise in asset management and the resolution of financial disagreements and predicaments.

The appointments will differ depending on the specific circumstances of each case. The court possesses the discretion to enact appropriate designations with relevant powers granted to the LIT as the court officer to ensure the efficient administration and safeguarding of the rights of the debtor and creditors.

canadian insolvency
canadian insolvency

Understanding court officer fees in Canadian insolvency cases

In the realm of Canadian insolvency procedures, the proficiency of court-appointed officers is paramount and unswerving, as they assume a pivotal and irreplaceable function in the management and safeguarding of assets to benefit creditors. LITs bear the weighty responsibility of overseeing the course of insolvency proceedings, ensuring an impartial allocation of assets, and facilitating intricate financial resolutions.

As a testament to their outstanding contributions, court-designated officers are rightfully entitled to specific remunerations, acknowledging their unwavering commitment and specialized expertise. This section of the article aims to embark upon a comprehensive exploration of the diverse fee structures associated with court-appointed officers within the Canadian insolvency administration framework.

Initial retainer fee

Prior to their appointment and as a condition of consenting to act, court-appointed officers may necessitate an initial retainer fee. This fee acts as an upfront payment for their services and covers the preliminary expenses associated with commencing the insolvency administration process. The determination of the retainer fee typically hinges on the intricacy of the case and the complexity of the estate. The retainer amount is credited against the total fees earned as approved by the court.

Fee for administrative purposes

The administration fee constitutes an additional classification of court officer fees. Its objective is to cover the continuous administrative expenses accrued during the process of insolvency administration. This is the professional fee of the court officer, calculated by the hours worked by each level of staff of the court officer, at their standard hourly rates. This is the most common type of court officer fee.

Asset Realization or performance-based fee

It is possible in unique situations where the sale of assets will be very complex, the court officer earns an asset realization fee. It is earned only if the LIT is successful in disposing of the assets belonging to the insolvent estate or obtains a value above some pre-determined threshold amount. The court officer’s hard work in assessing, marketing, and selling assets is crucial to ensuring that creditors receive the best possible returns. Generally, the asset realization fee is calculated as a percentage of the total value of the realized assets or as a percentage of the revenue generated above the pre-determined threshold from the sale of assets.

Disbursements

In addition to the aforementioned fees, court-appointed officers are entitled to charge for their reasonable disbursements incurred during the course of their duties. Disbursements may encompass expenses relating to travel, professional services, legal fees incurred by the court officer, court filings, third-party valuations or appraisals, and other essential costs directly associated with the administration of the insolvency proceedings. The court officer is obligated to maintain meticulous records and furnish comprehensive accounts of the disbursements (and fees) for scrutiny and approval.

Significance of the checks and balances in the court taxation process for court officer fees

In all of the above cases, it is crucial to underscore those court-appointed officer fees and disbursements are subject to judicial oversight and scrutiny to ascertain their reasonableness and justifiability in light of the services rendered. The court possesses the authority to review and endorse these fees, factoring in elements such as the complexity of the case, the qualifications of the court officer, the scope of work performed, and the benefits conferred upon the stakeholders involved.

Court-appointed officers engaged in Canadian insolvency administrations are entitled to a potentially diverse array of fees, commensurate with their indispensable role in the management and preservation of assets. These fees encompass the initial retainer fee, administration fee, asset realization fee, performance-based fee, and reasonable disbursements. By duly compensating court-appointed officers for their unrivalled expertise and unwavering commitment, the insolvency administration process can proceed seamlessly, instilling confidence among creditors regarding the equitable and effective management of the insolvent estate.

canadian insolvency
canadian insolvency

Taxation process for court officer fees

The intricate procedure of taxing court officer charges in Canadian insolvency cases is a multifaceted framework that is influenced by numerous pivotal elements. Grasping these elements is of utmost importance for court officers and stakeholders alike, as it directly affects the amount of remuneration received by court officers for their labour and what is accessible to be allocated to the creditors in the priority of their ranking.

By conducting comprehensive evaluations of numerous Canadian insolvency cases, the court has established a series of benchmarks for the taxing process in scrutinizing and endorsing the fee and disbursements of a court officer. The taxing process is impelled by a variety of distinctive elements that necessitate meticulous attention to detail.

In essence, by acquiring a lucid comprehension of the taxing process and its implications, court officers can ensure that they obtain equitable compensation for their labour, while concurrently providing clients with a valuable service. Here are the elements that a court scrutinizes when determining the appropriateness of the fee and disbursements levied by its court officer.

Canadian insolvency cases: What are the factors that the court considers in the taxation of costs process for court officer fees

Preparation and submission of taxation of costs materials

The court officer’s application for the approval of its fee and disbursements is like any other court application. There needs to be the proper legal documents and evidence. The evidence is normally the court officer’s report to the court accompanied by invoices and detailed time dockets, sufficient to show what steps were taken in the administration for the specific date range, by who and at what professional hourly rate. This would be the case not only for the court officer but also for legal counsel providing legal services to the court officer.

This evidence would be accompanied by a sworn affidavit from an official from the court officer’s firm and the legal firm providing legal advice to the court officer, attesting to the accuracy of the time kept and that the hourly rates charged were the standard hourly rates. This would be for the administrative fee described above. If the court officer or its legal counsel feels they are entitled to any other type of fee, that evidence would also have to be put forward. An example would be a signed and accepted engagement letter between the court officer and the applicant in the original litigation that resulted in the appointment of the court officer.

The remaining procedures and documents are the ones that the lawyer acting on behalf of and providing legal advice to the court officer normally does such as obtaining a court date and preparing the notice of motion, factum and draft order, filing it with the court, effecting service on all interested parties and providing proof of service.

canadian insolvency
canadian insolvency

The Ontario court pays close attention to and follows several significant legal cases regarding the taxation of court officer fees when assessing the amounts in issue. These cases are:

Bank of Nova Scotia v. Diemer, 2014 ONSC 365 at paragraph 3, citing Re Bakemates International Inc., [2002] O.J. NO. 3659 (Ont. C.A.) – These cases establishes the essential principle that court officers must provide evidence to support the fairness and reasonableness of their requested compensation when seeking approval from the court. The court acknowledges its power to modify the fees and charges imposed by court officers, ensuring a just outcome is achieved.

Re Nortel Networks Corporation et al, 2017 ONSC 673 at paragraph 15, quoting Bank of Nova Scotia v. Diemer, 2014 ONSC 365 at para. 19, aff’d 2014 ONCA 851 – The court is not obligated to scrutinize the intricate details of dockets, hours, explanations, or disbursements. Instead, it has the authority to take into account all pertinent factors and make a more comprehensive assessment when awarding costs or fees. The Court of Appeal has emphasized that the primary focus should be on the achieved results, rather than the amount of time expended in achieving them.

Jethwani v. Damji, 2017 ONSC 3524 at paragraph 49 quoting HSBC Bank Canada v. Mahvash Lechcier-Kimel, 2014 ONSC 1690; aff’d 2014 ONCA 721.- In the context of a court-supervised Canadian insolvency case, if the actions of the court officer are considered imprudent and/or unreasonable, the fees and disbursements for the amounts in issue resulting from such conduct may be deemed unfair and unreasonable. This means that the court officer may not be entitled to receive full compensation for their services if their actions during the administration are deemed inappropriate or unreasonable.

Analyzing the prudence and reasonableness of the court officer’s conduct entails subjective interpretation, usually falling within the purview of the supervising court in Canadian insolvency proceedings. The court will consider an array of factors, including the accomplishments of the court officer, the encountered challenges, and the alignment of actions with the court’s directives and the best interests of all parties involved.

Should the court determine that the court officer’s actions were imprudent or unreasonable, they possess the authority to make appropriate adjustments to the fees and expenses. This adjustment is rooted in the notion that compensation ought to correspond to the level of performance and reasonableness demonstrated throughout the entire Canadian insolvency case.

What will the court specifically consider during the taxation process?

Based on the above cases, the Canadian courts will consider a non-exhaustive list of factors in determining whether a Court officer’s fees are fair and reasonable, including the:

  • nature, extent and value of the assets handled;
  • complications and difficulties encountered;
  • degree of assistance provided by the company, its officers or employees;
  • time spent;
  • court officer’s knowledge, experience and skill;
  • diligence and thoroughness displayed;
  • responsibilities assumed;
  • results of the court officer’s efforts; and
  • cost of comparable services and service providers in the jurisdiction when performed in a prudent and economical manner.

    canadian insolvency
    canadian insolvency

Canadian insolvency court officer best practices: Enhancing performance and safeguarding interests

In my view, court officers should adopt a set of best practices that can greatly contribute to their effectiveness. These practices should include the implementation of a signed engagement letter in Canadian insolvency court proceedings.

The Importance of a signed engagement letter

The signed engagement letter holds immense significance as it meticulously outlines the extent, nature, and expenses associated with the tasks to be undertaken by a court officer in Canadian insolvency court proceedings. By formalizing the agreement between the court officer and the Applicant, this document sets clear expectations and offers a wide array of benefits to both parties involved.

1. Ensuring clarity and defining the scope of work

With a signed engagement letter, the responsibilities and duties of the court officer become unambiguously clear. It provides a precise delineation of the work’s scope, encompassing specific tasks, deadlines, and deliverables. Such lucidity fosters a mutual understanding between the court officer and the Applicant, effectively minimizing potential misunderstandings or future disputes.

The possession of a signed engagement letter serves as concrete legal protection for both the court officer and the Applicant. It acts as tangible evidence of the agreed-upon terms, substantially reducing the likelihood of contractual conflicts. In instances of disagreements or misunderstandings, this engagement letter stands as a binding agreement, effectively safeguarding the interests of both parties.

3. Transparent cost structure

The engagement letter offers a transparent overview of the expenses associated with the court officer’s services. It explicitly outlines the fee structure, payment terms, and any additional costs that may arise throughout the court proceedings. This transparency enables the Applicant to aptly plan their budget, effectively averting any unforeseen financial surprises.

4. Aligning expectations

By explicitly defining the nature of the work to be performed, an engagement letter ensures a shared understanding between the court officer and the Applicant. It empowers the Applicant to comprehend the services they will receive and the level of assistance they can expect from the court officer. Simultaneously, it grants the court officer the opportunity to clarify their role and set realistic expectations for the Applicant, thus fostering a productive and harmonious working relationship.

5. Professionalism and credibility enhancement

When a court officer provides a signed engagement letter, it showcases their professionalism and credibility. This letter is proof that the officer is dedicated to upholding ethical standards and providing high-quality services. It also reassures the client that they are working with a skilled and responsible court officer. Overall, a signed engagement letter is a crucial element that enhances the court officer’s reputation and builds trust with their clients.

6. Documentation for effective record-keeping

The engagement letter assumes a pivotal role as an indispensable document for meticulous record-keeping purposes. It ensures that all pertinent details regarding the court officer’s engagement and the scope of work are meticulously documented in writing. This comprehensive documentation becomes invaluable when the need for future clarifications or reviews of the work arises.

In summary, incorporating a signed engagement letter into court proceedings is an indispensable best practice for court officers. It fosters clarity, safeguards legal interests, establishes transparent cost structures, aligns expectations, enhances professionalism and credibility, and facilitates effective record-keeping. By adhering to these practices, court officers can significantly enhance their performance and effectively safeguard the interests of all parties involved.

Advantages of meticulous record-keeping for fee statements in court-supervised Canadian insolvency proceedings

Within court-supervised Canadian insolvency proceedings, the court officer assumes a pivotal role in managing the intricate financial aspects of the process. The presence of comprehensive and precise documentation of fee statements yields substantial advantages for both the court officer and the stakeholders involved. Let’s delve into these benefits in greater depth:

1. Transparency and accountability

Thoroughly documented fee statements establish transparency and accountability concerning the financial transactions carried out by a court officer. They empower stakeholders to obtain a lucid comprehension of the imposed fees and the corresponding services rendered. By upholding meticulous records, the court officer can manifest their unwavering dedication to impartiality and ethical conduct, fostering trust among the stakeholders.

2. Justification of fees

Court officers are entitled to receive fair compensation for the provision of their services. By diligently documenting fee statements, court officers can substantiate the fees they levy. These records delineate the precise tasks undertaken, the invested time, and the intricacy of the involved work. Such comprehensive details enable stakeholders to grasp the value that the court officer brings forth and diminish the likelihood of fee-related disputes.

By ensuring the scrupulous documentation of fee statements, court officers can mitigate the risk of legal issues and the need for additional legal services stemming from erroneous or incomplete records. Given the exacting financial reporting requirements within court-supervised Canadian insolvency proceedings, precise and comprehensive fee statements contribute to adherence to regulatory standards, thereby minimizing the potential for legal entanglements.

4. Augmented stakeholder confidence

Stakeholders, encompassing creditors, the debtor being the insolvent company, and the court itself, repose profound trust in court officers’ ability to navigate the intricacies of insolvency proceedings. Meticulously documented fee statements act as tangible evidence of the court officer’s professionalism and dependability. This documentation instills stakeholders with the assurance that the court officer conducts their duties transparently and diligently, cultivating confidence in the overall process.

5. Efficient resolution of disputes

In situations where fee disputes or disagreements arise, the presence of thorough documentation becomes invaluable. Detailed records provide a foundation for resolving conflicts through negotiation or formal channels. They serve to facilitate discussions, clarify any misinterpretations, and reach mutually agreeable solutions. This expedites the resolution of disputes and upholds positive relationships between the court officer and stakeholders.

6. Adherence to reporting requirements

Court-supervised Canadian insolvency proceedings necessitate compliance with various reporting obligations, including financial disclosures. Meticulous documentation of fee statements ensures adherence to these reporting requirements. Accurate and well-documented fee statements streamline the preparation of essential reports, facilitate the maintenance of audit trails, and fulfill regulatory obligations. This enables court officers to fulfill their responsibilities effectively and ensures the smooth progression of proceedings.

7. Cultivation of professional reputation

Maintaining meticulous documentation of fee statements contributes to the cultivation of a court officer’s professional reputation. Accurate and organized records serve as a testament to the court officer’s unwavering commitment to professionalism and attention to detail. This meticulousness resonates positively within the legal and insolvency communities, potentially opening doors to future opportunities and referrals.

canadian insolvency
canadian insolvency

Advantages of timely and effective communication for court officers and stakeholders

Timely and effective communication plays a vital role in the court officers’ quest to maintain transparency and foster positive relationships with stakeholders. By giving due importance to clear and consistent communication concerning their actions, activities, and fees charged, court officers bring forth numerous benefits for themselves and the stakeholders involved. Let’s delve into these advantages in detail:

1. Improved comprehension and trust

Timely and effective communication empower court officers to articulate their actions and activities in a manner that stakeholders can readily grasp. By providing regular updates and reports, court officers ensure that stakeholders possess a comprehensive understanding of the progress and status of the proceedings. This level of transparency nurtures trust and instills confidence in the court officers’ capabilities, thereby fostering a productive and harmonious working relationship.

2. Heightened collaboration and cooperation

Maintaining open channels of communication enable court officers and stakeholders to exchange relevant information and actively engage in the proceedings. Effective communication facilitates seamless collaboration, leading to improved decision-making and problem-solving. This collaborative approach streamlines the legal process and paves the way for a more efficient resolution.

3. Timely resolution of issues

Timely communication empowers stakeholders to promptly address any concerns or issues that may arise. By promptly sharing information and seeking feedback, court officers can identify and resolve potential challenges or conflicts in a timely manner. This proactive approach minimizes disruptions, reduces delays, and ensures that the proceedings stay on track.

4. Transparent cost structure and budget management

Effective communication regarding fees charged equip stakeholders with a clear understanding of the costs involved in the legal process. Court officers can provide detailed explanations of the fees charged, including any additional expenses. This transparency empowers stakeholders to effectively manage their budgets, enabling them to anticipate and plan for the financial aspects of the proceedings.

5. Mitigation of misunderstandings and disputes

Clear and timely communication acts as a safeguard against misunderstandings and potential disputes. By providing comprehensive explanations of their actions and activities, court officers can address any questions or concerns that stakeholders may have. This proactive approach reduces the likelihood of conflicts and ensures a smoother legal process.

6. Stakeholder satisfaction and retention

When court officers prioritize effective communication, stakeholders feel valued and actively involved in the proceedings. Regular updates, timely responses, and clear explanations contribute to stakeholder satisfaction. Satisfied stakeholders are more likely to continue working with the court officers in the future and may even provide valuable referrals, thus enhancing the court officers’ reputation and expanding their professional network.

Timely and effective communication ensures that court officers adhere to legal and ethical standards. By providing regular updates and accurate information, court officers demonstrate their commitment to transparency and accountability. This adherence to standards upholds the integrity of the legal process and instills confidence among stakeholders.

Canadian insolvency: Conclusion

I hope you enjoyed this Canadian insolvency Brandon’s Blog on the issue of the taxation of a court officer’s fee and disbursements. Managing your personal or business financial affairs in today’s ever-challenging and changing business landscape is no small feat, but with the right plan in place, it’s possible to stay or get back on track.

Revenue and cash flow shortages are critical issues facing people, entrepreneurs and their companies and businesses that are in financial distress. Are you now worried about just how you or your business are going to survive? Are you worried about what your fiduciary obligations are and not sure if the decisions you are about to make are the correct ones to avoid personal liability? Those concerns are obviously on your mind.

The Ira Smith Team understands these concerns. More significantly, we know the requirements of the business owner or the individual that has way too much financial debt. You are trying to manage these difficult financial problems and you are understandably anxious.

It is not your fault you can’t fix this problem on your own. The pandemic has thrown everyone a curveball. We have not been trained to deal with this. You have only been taught the old ways. The old ways do not work anymore. The Ira Smith Team uses innovative and cutting-edge methodologies, to adeptly navigate you through the intricacies of your financial challenges, ensuring a resolution to your debt-related predicaments without resorting to the rigours of the bankruptcy process. We can get you debt relief now!

We have helped many entrepreneurs and their insolvent companies who thought that consulting with a Trustee and receiver meant their company would go bankrupt. On the contrary. We helped turn their companies around through financial restructuring.

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.

The Ira Smith Trustee & Receiver Inc. team understands 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 listen to the unique issues facing you and provide you with practical and actionable ideas you can implement right away to end the pain points in your life, Starting Over, Starting Now.

canadian insolvency
canadian insolvency
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Brandon Blog Post

LICENSED INSOLVENCY TRUSTEE FEES: WHAT UNDENIABLE EVIDENCE IS NEEDED FOR COURT APPROVAL OF INSOLVENCY TRUSTEE FEES?

Licensed insolvency trustee fees: How is a licensed insolvency trustee paid?

Are your debts or your company’s debts and financial situation causing you so much stress that you are considering speaking to a licensed insolvency trustee (formerly called a bankruptcy trustee or trustees in bankruptcy), but you are worried about the licensed insolvency trustee fees? Are you concerned about the professional fees to be paid because you think that businesses with debt problems already cannot afford to hire professionals? Your concerns are valid and relevant but you should not let that stop you from your initial inquiry. An insolvency trustee will always provide you with a no-cost initial consultation, discuss realistic options and explain the cost of each option to you.

Licensed insolvency trustee fees are set by bankruptcy laws and rules contained in the Bankruptcy and Insolvency Act (Canada) (BIA). They are reviewed by the Office of the Superintendent of Bankruptcy and must be approved by the bankruptcy court. Fees are either drawn from the funds accumulated in the insolvency file from the sale of assets in the receivership or bankruptcy administration or the monthly payment funding of the restructuring proposal. If there are insufficient assets in the insolvency file, then the insolvency trustee gets its fee from a third-party retainer.

In this Brandon’s Blog, I describe how licensed insolvency trustee fees are calculated. Then, I review a recent Ontario court decision to show what kind of evidence the Trustee needs to provide the court in order for its fees to be approved.

Licensed insolvency trustee fees: Disbursements included in a streamlined personal insolvency process

Licensed insolvency trustees offer a range of services for both individuals and businesses. For individuals, there are two streamlined insolvency processes:

  • summary administration personal bankruptcy; and
  • consumer proposals.

    licensed insolvency trustee fees
    licensed insolvency trustee fees

Licensed insolvency trustee fees in a summary administration personal bankruptcy

The summary administration personal bankruptcy process applies when the assets of the bankrupt person to be sold are expected to sell for $15,000 or less. Licensed insolvency trustee fees for a summary administration personal bankruptcy are set by a formula called a tariff.

In a summary administration bankruptcy, the fees that insolvency trustees are entitled to are calculated as follows:

  • 100 percent on the first $975 or less of receipts;
  • 35 percent on the portion of the receipts exceeding $975 but not exceeding $2,000;
  • 50% of receipts exceeding $2,000;
  • for counselling fees of $75 per session, totalling $150; and
  • an allowance for administrative disbursements of $100.

The reason the formula refers to receipts (of cash) rather than net proceeds from asset sales is that, in any personal bankruptcy, there are two types of cash receipts: 1. from the sale of assets; and 2. surplus income payments made by the bankrupt person, if any.

Licensed insolvency trustee fees: How much will it cost me to file a consumer proposal?

The calculation of the amount you need to offer your creditors in your consumer proposal has no relation to what the licensed insolvency trustee fees will be. Licensed insolvency trustee fees for a licensed trustee acting as the Administrator in the consumer proposal process is also governed by a tariff. It is calculated as follows:

  • $750 on the filing of the proposal with the official receiver;
  • $750 on the approval or deemed approval by the court;
  • 20% of moneys distributed payable on distribution; and
  • counselling fee of $75 for each counselling session for a total of $150.

In a consumer proposal, administrative disbursements are paid out of the above fee calculation.

In both summary administrations and consumer proposals where the licensed insolvency trustee fees are only the tariff, there is no need for court approval.

licensed insolvency trustee fees
licensed insolvency trustee fees

What factors influence licensed insolvency trustee fees in other administrations?

There are no streamlined provisions for any corporate insolvency administration. In addition to administering summary administration bankruptcies and consumer proposals, licensed insolvency trustees also can provide the following services:

  • business review of a company to identify its solvency and future prospects so that financial advice can be given
  • ordinary administration personal bankruptcy
  • commercial bankruptcy
  • personal Division I restructuring proposal to creditors (for consumers who cannot qualify for a consumer proposal)
  • corporate Division I restructuring proposal
  • private corporate receivership
  • court-appointed corporate receivership
  • winding-up corporate liquidation, either voluntary or court-supervised
  • corporate restructuring under the Companies’ Creditors Arrangement Act

In all of the above government-regulated insolvency proceedings/insolvency procedures, there are only two factors that influence the licensed insolvency trustee fees. They are:

  1. Hours spent by the level of staff working.
  2. The professional hourly rate of the staff.

Licensed insolvency trustee fees: How does an insolvency practitioner receive compensation?

In all of the non-streamlined insolvency processes, I just described, how the licensed trustee gets the fees it is charging requires approval. In private appointments, the licensed trustee needs the approval of the client. In a court appointment or administration for bankruptcy services or any other mandate under the BIA, the licensed trustee needs court approval.

What evidence do licensed insolvency trustees need to provide to prove the time that was spent doing the work? The documentation expected of a licensed trustee is the same that is expected from an insolvency lawyer or any other kind of lawyer. What is expected are detailed time dockets, so that everyone can see who spent what time, on what day on what activity.

But what if proper dockets are not kept? Well, that is exactly what the court case I want to describe to you is all about.

licensed insolvency trustee fees
licensed insolvency trustee fees

Licensed insolvency trustee fees: How do practitioners of insolvency get compensated – it takes a Final Statement of Receipts and Disbursements

I am writing this Brandon’s Blog to be informative, not to embarrass anyone. So I will not be providing the case reference of the case I am now going to describe. This is actually the second such case in Ontario that I am aware of in the last 12 months.

The case deals with a bankruptcy trustee who submitted its final statement of receipts and disbursements (SRD) to the court for approval. Contained in this final statement is amongst other things, the line item for the fee and disbursements the Trustee is seeking court approval for. The court expects to see a sworn affidavit from someone on the insolvency trustee’s staff who has knowledge of the time spent and the fee charged outlining what was done and why it was necessary. The court also expects to see detailed time dockets.

In this case, and the very similar one that came before it, the insolvency trustee’s material did not include detailed time dockets. Both Trustees applied for taxation of their SRD in an individual debtor’s Division I Proposal. In both cases, the Office of the Superintendent of Bankruptcy issued clean letters of comment. The primary issue raised on this taxation is whether the insolvency trustee’s fees are to be approved. In the ordinary course, the debtor and the creditors have not been given notice of the taxation but it would appear that there is unlikely to be any objection.

The taxation raises the question of how the Trustee is supposed to establish its entitlement to fees when there is no time dockets kept or otherwise available to support the trustee’s claim. In this case (and the one before it), the Trustee is relying solely on the terms of the proposal. The proposal contains the methodology for calculating the fees to be taken by the Trustee in administering the proposal. The Trustee is relying on the fact that a Proposal is a contract between the debtor and its creditors, the court has already approved the Proposal and the Proposal includes the Trustee’s remuneration.

Licensed insolvency trustee fees: Bankruptcy trustees – why not keep accurate time records?

The Trustee requested fees (plus HST) based on the formula set out in the debtor’s proposal. While the Trustee provided an affidavit in support of its taxation, the Trustee did not provide any evidence of actual time spent at each staff level. The taxation came before the Associate Justice on September 1, 2021. She adjourned the taxation and requested time dockets.

The Trustee filed a report in response to the September 1, 2021 endorsement and request for time dockets, supporting the taxation and approval of the fees claimed, but no time dockets were included. In its report, the Trustee noted that it did not keep formal, detailed time records, as the terms of the Trustee’s fees and expenses are set forth in the Proposal as a “fixed fee” formula. This fee formula was accepted by creditors and approved by the Court. Therefore, the Trustee is relying upon that in not keeping time dockets.

The Trustee advised that its rationale for the development of a fixed fee formula to be charged by the Trustee, and for its decision to eliminate time docketing in such Division I proposals containing a formula for fixing a fee, were as follows:

  1. The fixed fee formula was designed by the Trustee to provide more certainty about the costs of administration for the Division I proposal. This formula also takes into account contingencies such as the time needed to negotiate the terms of the proposal and to verify the debtor’s financial information.
  2. The fixed fee formula was designed to make billing and accounting more efficient by eliminating the need to track chargeable time.
  3. The fixed fee formula was based on the consumer proposal tariff, to a certain extent.
  4. The fixed fee formula’s structure helped the Trustee keep initial costs low, so creditors could start getting dividends from the debtor’s monthly payments sooner.
  5. The fixed fee formula was designed to minimize unexpected increases in costs of administration and a resulting decrease in dividends.
  6. Not once has a creditor balked at the Trustee’s fixed fee.
  7. The court approved the proposal with the fixed fee formula, so the Trustee did not keep time dockets.
  8. There are many proposals whose administration is underway or completed that the Trustee has relied upon the fixed fee formula, and therefore has not maintained time dockets.
  9. The trustee’s fees, as claimed under the fixed fee formula, have not been objected to by the Office of the Superintendent of Bankruptcy Canada.

    licensed insolvency trustee fees
    licensed insolvency trustee fees

Licensed insolvency trustee fees: The court’s analysis and decision

The BIA provides for the determination of a Trustee’s remuneration in section 39. The Associate Justice said that s. 39(5) of the BIA provides the jurisdiction to increase or reduce the remuneration claimed by a Trustee. Further, the court was not a “rubber stamp” obliged to approve the fees claimed by the Trustee merely because they were in the Proposal. The court noted that it is common for Trustees to request remuneration based on the time spent and hourly rates charged. The burden is on the Trustee to convince the court that the amount claimed for remuneration is warranted.

The Associate Justice listed the following principles that must be considered when it comes to taxation:

  • Trustees should be given proper compensation for their services.
  • Prevent unjustifiable payments for Trustee fees that harm the insolvent estate and its unsecured creditors.
  • The efficient and conscientious administration of an estate for the benefit of creditors and, to the extent that the public is concerned, in the interests of the proper carrying-out of the objectives of the BIA, should be encouraged.

This Associate Justice also dealt with the previous case I mentioned above, which involved the taxation of a statement of receipts and disbursements in a Division I proposal where no time dockets were kept. In that case, she held that the lack of time dockets was not fatal to the approval of fees. She said the court is in a difficult position when there is no corroborative evidence as to the time and effort spent in the administration of the proposal.

So due to the lack of evidence justifying the time spent by the various staff members of the Trustee firm at their normal hourly rates, the Associate Justice was forced to look at the entirety of the Trustee’s administration. She found issues with it and therefore concluded that the Trustee was not entitled to the full fee being requested, based on the formula contained in the Division I Proposal. The Associate Justice determined, with the benefit of hindsight as to how the Division I Proposal turned out, that the debtor could have filed a consumer proposal and the creditors would have then been better off with a higher dividend distribution.

The Associate Justice ruled that, in this case, fees and disbursements will be set on a consumer proposal tariff basis. The proposal fund totalled $31,500. Using the formula for a consumer proposal, the Trustee was therefore entitled to fee and disbursements of $7,620 (plus HST) and not the $9,973.46 fee and $14,252.01 of disbursements (plus HST) formula amount.

The Associate Justice was also very critical of the Trustee’s administration and she had strong words overall for Trustees coming to court without proper evidence of the time spent when requesting approval for fees and disbursements at taxation. Her warning was that she did not accept the Trustee’s submissions that:

  • The court’s jurisdiction over approving the SRD and the fees to be claimed by the Trustee is replaced by the approval of the creditors and the OSB. Creditor and OSB approval are not determinative when it comes to taxation, but their approval is still relevant.
  • The appropriateness of the Trustee’s fees is not considered in an application for court approval of a Division I proposal. The court is not prevented from taxing the Trustee’s fee and disbursements upon the taxation of the SRD.
  • Any benefits to having a set fee remove the court’s jurisdiction to approve the Trustee’s fees. If the Trustee decides to save time by not documenting their hours worked, they do so at their own risk. The responsibility is always on the Trustee to justify their fees.
  • Creditors who want to know how much the Trustee’s fee will be cannot override the Trustee’s responsibility to explain to the court why the fee is fair and reasonable.

The court directed the Trustee to redo its SRD on the basis decided by the court, resubmit it to the Office of the Superintendent of Bankruptcy for its comment letter and then resubmit the entire package to the court for the taxation order.

A tough day in court to be sure.

Licensed insolvency trustee fees: Call us for debt-free solutions

I hope you found this licensed insolvency trustee fees Brandon’s Blog interesting. Among the many problems that can arise from having too much debt, you may also find yourself in a situation where bankruptcy seems like a realistic option.

If you or your business are dealing with substantial debt challenges and are concerned that bankruptcy may be your only option, call me. I can provide you with debt relief advice in setting up one of various possible debt management plans using debt relief options for you or your company.

You are not to blame for your current situation. You have only been taught the old ways of dealing with financial issues, which are no longer effective. We are debt professionals who know how to use the new innovative tools to solving debt problems while avoiding a bankruptcy filing.

We’re passionate about permanently solving your financial problems with you and getting you or your company out of debt. We offer innovative services and alternatives, and we’ll work with you to develop a personalized preparation for becoming debt-free which does not include bankruptcy. We are committed to helping everyone obtain the relief they need and are worthy of.

You are under a lot of pressure. We understand how uncomfortable you are. We will assess your entire situation and develop a new, custom approach that is tailored to you and your specific financial and emotional problems. We will take the burden off of your shoulders and clear 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 realize that people and businesses in financial difficulty need a workable solution. The Ira Smith Team knows that not everyone has to file for bankruptcy in Canada. Most of our clients never do, as we are familiar with alternatives to bankruptcy. We assist many people in finding the relief they need.

Call or email us. We can tailor a new debt restructuring procedure specifically for you, based on your unique economic situation and needs. If any of this sounds familiar to you and you’re serious about finding a solution and improving your financial future, let us know. Starting Over, Starting Now.

Call us now for a no-cost consultation to find out what your debt relief options are.

licensed insolvency trustee fees
licensed insolvency trustee fees
Categories
Brandon Blog Post

WHAT DOES A LICENSED INSOLVENCY TRUSTEE DO TO HELP IN YOUR MANAGING DEBT FOR A PROFOUND QUALITY OF LIFE?

what does a licensed insolvency trustee do

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

What does a licensed insolvency trustee do?: What is a licensed insolvency trustee?

Frequently I am asked what does a licensed insolvency trustee do? How is it different from a bankruptcy trustee? The answer is it isn’t different. The term bankruptcy trustee is dated.

The new title is Licensed Insolvency Trustee. The Office of the Superintendent of Bankruptcy (OSB) changed it in 2015. Among the reasons for the name change were the submissions made by the Canadian Association of Insolvency and Restructuring Professionals. As the name suggests, a licensed insolvency trustee can offer a wider array of financial solutions.

This Brandon’s Blog is intended to describe what does a licensed insolvency trustee do and to provide useful information for you to help you better understand the debt relief advice that a Trustee provides to people, entrepreneurs, and their companies experiencing financial trouble.

What does a licensed insolvency trustee do?: Licensed insolvency trustees are professionals who are federally regulated

There are many terms in the insolvency field that the average person isn’t familiar with, which is why it’s important to understand what the licensed insolvency trustee does. Trustees are licensed and supervised by the federal government through the OSB to act as personal and corporate insolvency administrators. This means they act to protect the interests of all involved parties while assisting debtors, acting as a debt counselor, a restructuring advisor, and if required, overseeing the bankruptcy process.

Licensed insolvency trustees are professionals with a background in finance, law, accounting, and insolvency. They assist businesses and individuals who are struggling financially. Typically, licensed insolvency trustees meet with clients to discuss their financial situation and offer advice and recommendations to help get the client out of a financial bind.

what does a licensed insolvency trustee do
what does a licensed insolvency trustee do

What does a licensed insolvency trustee do?: The credit counselor or a debt management program as an alternative

Financial guidance is offered by licensed insolvency trustees, credit counselors, and debt management programs. These services differ greatly from each other.

A licensed insolvency trustee can simply offer you financial advice and help you plan on how to repay your debts if that is all you need. A trustee is also the only person who can file a bankruptcy or consumer proposal for you. A Trustee will provide you with an initial no-cost confidential consultation to see if there are alternatives to bankruptcy for you. Credit counselors, credit counselling companies, and debt management businesses can give you financial advice and information. They can help you make a budget and make plans to repay your debt.

What does a licensed insolvency trustee do when you have debt but do not need to resort to one of the insolvency processes? During the free initial consultation, if a consumer proposal or bankruptcy is not right for you, the Trustee will refer you to see a community organization-based credit counselor who will be able to help you and also will not charge you a fee.

What does a licensed insolvency trustee do?: The Consumer Proposal Process

Consumer proposals to creditors are made by debtors and are legally binding agreements. You group all your debts into a consumer proposal to creditors. This is a debt solution to avoid bankruptcy. Your creditors agree to accept a reduced amount as full payment. The consumer proposal is a legal alternative to bankruptcy. Only a licensed insolvency trustee can administer it.

The only consumer insolvency restructuring proceeding regulated by the Canadian government is referred to as a consumer proposal (which is the only one of the consumer insolvency government-regulated insolvency proceedings that allow debt consolidation, debt settlement, or debt adjustment). In the end, your creditors write off the remainder of your debt, and you are released from those legal obligations.

If you owe $250,000 or less (not including any personal mortgages) and are insolvent, then you can qualify for a consumer proposal. Month-to-month payments over no more than 60 months need to be made to the Trustee. You pay just a part (generally 25%) of your total financial obligations gradually to the Trustee and when ended up, the rest of the balance owing to your unsecured creditors is written off.

what does a licensed insolvency trustee do
what does a licensed insolvency trustee do

What does a licensed insolvency trustee do?: The bankruptcy process

Canadian bankruptcy is a process whereby a person or company can declare itself bankrupt. The bankruptcy process starts in the provincial or territorial office of the OSB where the debtor is located.

In Canada, personal bankruptcy entails a number of stages. The debtor must be insolvent, meaning that they cannot repay their debts with the assets that they own or the income they earn. With the help of the Trustee, they must file statements of affairs and a statement of current income and expenses. There are other obligations on an undischarged bankrupt but that is not the purpose of this blog.

Upon receiving their discharge from bankruptcy, that is the moment that the debtor’s debts are forgiven or discharged.

What does a licensed insolvency trustee do?: The assignment of assets

When people file assignments in bankruptcy, what does a licensed insolvency trustee do with the assets? Any assets not charged by a secured creditor are available for the Trustee to take possession of. Those assets are usually things like real estate, cash, and vehicles. When assets are seized in bankruptcy the proceedings usually lead to them being sold and the proceeds are shared with creditors.

This is the main difference between a consumer proposal and bankruptcy. In a consumer proposal, there is no assignment of assets to the Trustee like in a bankruptcy. The debtor in a consumer proposal keeps their assets and makes monthly payments. It is the total of the monthly payments that the Trustee distributes to the creditors in a consumer proposal. In a bankruptcy, it is the proceeds of the asset sales.

what does a licensed insolvency trustee do
what does a licensed insolvency trustee do

What does a licensed insolvency trustee do?: Opting for a consumer proposal

Many people I deal with have significant debt problems. However, a consumer proposal may not be the best option for everyone. Opting for a consumer proposal means not only do you qualify under Canadian insolvency legislation to use one. It also means that it is a better alternative for you than personal bankruptcy. It means that you are able to restructure and not need bankruptcy services from a licensed insolvency trustee.

A consumer proposal is a way to get out of debt without declaring bankruptcy. If you are having trouble paying back credit card bills, medical bills, rent payments, and you don’t want to declare bankruptcy, a consumer proposal might be right for you.

Before opting for a consumer proposal, you must meet the following requirements:

  1. Total liabilities of $250,000 or less.
  2. Monthly payments can be made to your creditors, but not 100% of the total amount due.
  3. You cannot repay all of your debts with the money you have.
  4. If you work and are able to budget, you can pay your budgeted monthly expenses and have money left over for regular monthly payments to the Trustee. Under a debt management plan, your creditors will agree to write off a portion of your debt if you pay a fraction of what you owe.
  5. You may also be lucky enough to have a relative willing to put up a lump sum of money that represents a fraction of what you owe so that your unsecured creditors will accept it instead of all that you owe. This means that you can be in and out of your consumer proposal fairly quickly if you are in this fortunate position.

To summarize, consumer proposals are best suited to people with a sufficient disposable income. Consumer proposals offer the best way of restructuring, eliminating your unsecured debts, and avoiding bankruptcy.

There are restructuring provisions in the Bankruptcy and Insolvency Act (Canada) for people who owe more than they can discharge in a consumer proposal or in business insolvency. Despite some differences in the rules, the overall theme of restructuring remains the same.

What does a licensed insolvency trustee do?: Going the bankruptcy route

Given the above, what can a person do to eliminate their unsecured debt if they cannot qualify for filing a consumer proposal as an alternative to bankruptcy? Going the bankruptcy route will probably make the most sense.

Bankruptcy is when a person cannot pay their bills. They file Canadian personal bankruptcy to get a fresh start. Filing a consumer bankruptcy must be your last resort after exhausting all other options to avoid bankruptcy. Bankruptcy means debts are written off when the person receives their absolute discharge from bankruptcy. The bankruptcy law in Canada protects people from dishonest, unfair, or abusive practices by creditors.

However, in return for getting the relief of eliminating debts through bankruptcy, an undischarged bankrupt also has certain responsibilities.

These include:

  1. Making full disclosure to the Trustee.
  2. With the assistance of the Trustee, preparing the sworn Statement of Affairs and Statement of Income and Expenses.
  3. Delivering all assets and properties to the Trustee to be sold (other than for certain provincial exemptions).
  4. Attending the First Meeting of Creditors if one needs to be held.
  5. Attending two financial counselling sessions with the Trustee or a member of the Trustee’s staff. Attendance at credit counseling sessions is also the case in a consumer proposal.
  6. Providing monthly statements of income and expenses while an undischarged bankrupt.
  7. Generally providing any assistance requested by the Trustee.

In providing debt-relief options, the Canadian bankruptcy system is designed to provide fairness to both debtors and creditors while allowing the person to financially rehabilitate themselves.

what does a licensed insolvency trustee do
what does a licensed insolvency trustee do

What does a licensed insolvency trustee do?: Final thoughts

What does a licensed insolvency trustee do? Licensed insolvency trustees are insolvency practitioners. They are debt professionals who deal with and provide services to individuals and businesses with debt problems that are experiencing financial issues that can only be resolved through an insolvency process. Licensed insolvency trustees are professionals, offering affordable solutions to financial struggles.

I hope you found this what does a licensed insolvency trustee do Brandon’s Blog about helpful. Sometimes things are too far gone and more drastic and immediate triage action is required.

Do you have too much debt? Are you 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.

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. The way we take the load off of your shoulders and devise a debt settlement plan, we know that we can help you.

We know that people facing financial problems need a realistic lifeline. There is no “one solution fits all” approach with the Ira Smith Team. 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 in 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.

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

what does a licensed insolvency trustee do
what does a licensed insolvency trustee do
Categories
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TRUSTEE IN BANKRUPTCY ONTARIO: THE BEST MODERN RULES FOR GETTING PAID

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.

Trustee in bankruptcy Ontario introduction

One of two reasons led you to this page:

  1. you regularly read my Brandon Blog; or
  2. you typed in a search term something like “bankruptcy trustee Ontario“, “licensed insolvency trustee Ontario“, “insolvency trustee Ontario,” “trustee in bankruptcy Ontario” or a variation of these terms.

The bankruptcy process is one of several insolvency options available to the honest but unfortunate debtor in Canada to try to get back to financial stability.

Trustee compensation is charged in one of two distinct ways. It depends on the type of insolvency proceeding, as I will explain below. Trustees are sometimes only permitted to charge a relatively fixed fee, known as a “tariff”. Trustees cannot charge time-based fees in such cases.

On other occasions, the Trustee will charge the individual levels of staff by the hour. To charge time-based remuneration, the remuneration must be approved by the court. This is called taxation. All of this is governed by the Bankruptcy and Insolvency Act (Canada) (BIA), which is a federal government statute.

I discuss an unreported case from Ontario in this Brandon Blog, which was the topic of a webinar I attended this week. The first thing I will do is lay the groundwork, followed by a story of how a trustee in bankruptcy Ontario did not get the entire fee being requested upon the taxation of its accounts.

Trustee in bankruptcy Ontario: What is a Licensed Insolvency Trustee?

Individuals and businesses with debt problems can seek advice and services from licensed insolvency trustees, a federally regulated profession. It used to be called a trustee in bankruptcy Ontario to refer to an insolvency trustee licensed in Ontario.

What can a trustee in bankruptcy Ontario do for you? Depending on your needs, he or she can provide you with an array of options including alternatives to bankruptcy. Government-regulated insolvency proceedings are the only Canadian government-approved way through which you can be discharged of your debts.

You can trust that, when you hire a trustee in bankruptcy Ontario, you’re dealing with someone who has demonstrated that they possess the knowledge, experience, and skills that are required to be licensed by the Office of the Superintendent of Bankruptcy (OSB).

The insolvency system in Canada is regulated by the federal government. The OSB oversees an insolvency trustee and mandates that they adhere to federal standards of practice such as the Code of Ethics for Trustees. If you are unable to resolve a problem with a trustee in bankruptcy Ontario, you can file a complaint with the OSB. All complaints are reviewed and assessed.

trustee in bankruptcy ontario
trustee in bankruptcy ontario

Trustee in bankruptcy Ontario and the OSB: Who can act as trustee in bankruptcy Canada?

According to Canada’s Bankruptcy and Insolvency Act (BIA), the OSB oversees the administration of bankruptcy and receivership proceedings. It also has some responsibilities regarding the restructuring of large companies covered by the Companies’ Creditors Arrangement Act (CCAA).

Under each of these Canadian statutes, a person, business, or company experiencing financial difficulties may be discharged from most of their debts. Insolvency cases must be administered by a licensed insolvency trustee. On the OSB’s website, you can find contact information for all of Canada’s licensed insolvency trustees.

What does a trustee in bankruptcy Ontario cost?

Depending on the services they provide, the cost of an insolvency trustee in Ontario varies. Providing a no-cost initial consultation is standard practice for professional trustee firms. In this confidential consultation, our team collects information about your assets, liabilities, income, and expenses to gain a thorough understanding of your situation.

Then, we explain what debt relief options you or your business could benefit from, including any insolvency process. We will then explain our recommendations and provide you with a cost estimate. Insolvency costs depend on the type of insolvency proceeding. You will see why shortly.

trustee in bankruptcy ontario
trustee in bankruptcy ontario

Personal bankruptcy – summary administration

Summary administrations are consumer bankruptcy proceedings in which the realizable value of non-exempt assets (the value of non-exempt assets) after the claims of secured creditors are deducted does not exceed $15,000. For summary administrations, the professional Trustee cannot charge for their time spent. They are compensated according to a tariff. The tariff for summary administrations is:

  • 100% of cash receipts up to $975;
  • the portion exceeding $975 but not exceeding $2,000 is taxed at 35%;
  • above $2,000, 50%;
  • each of the two mandatory counselling session’s tariff fee;
  • court fees;
  • an administrative and overhead fee of $100; and
  • HST/GST.

Personal and corporate bankruptcy – ordinary administration

Personal bankruptcy is classified as an ordinary administration if the net recovery after the claims of secured creditors will be more than $15,000. Corporate bankruptcy is always an ordinary administration. Corporate bankruptcy does not currently have a streamlined version as does personal bankruptcy.

An ordinary administration bankruptcy allows the Trustee to charge by time spent, subject to approval by the Inspectors of the bankruptcy estate (if any), the OSB and taxation by the court.

Consumer proposal

As regular readers of my Brandon Blog know, a consumer proposal process is the only federal government-approved debt settlement program in Canada and is always administered by a trustee in bankruptcy Ontario or elsewhere in Canada. It is also the only consumer insolvency choice in Ontario other than for a summary administration bankruptcy. A consumer proposal is available to any individual who has $250,000 or less in debt, not including any debt registered against their home. A consumer proposal is a way of eliminating debts while avoiding bankruptcy.

A professional Trustee, acting as the Administrator in a consumer proposal, cannot charge for time spent on consumer proposals. Compensation is based on a tariff. A consumer proposal tariff is as follows:

  • $750 upon filing the consumer proposal with the OSB;
  • when the consumer proposal is approved or deemed approved, another $750;
  • 20% of the money distributed to creditors, when it is distributed:
  • the fee for each of the two mandatory credit counselling sessions;
  • court costs; and
  • HST/GST

Division I Proposal

A consumer proposal streamlines the process. Individuals with too much debt to qualify for a consumer proposal may submit a Division I proposal. Under the BIA, every corporate restructuring plan must be a Division I proposal.

Under a Division I Proposal, the Trustee can charge by the amount of time spent, subject to approval by the Inspectors (if any are allowed for and appointed), the OSB, and taxation by the court.

Receivership – private or court-appointed

Receivership is a remedy for secured creditors legal process. A trustee in bankruptcy Ontario and elsewhere in Canada can charge for time spent in a receivership. In a private appointment, there is no taxation. The secured creditor who appointed the receiver must approve the fee.

In a court-appointed receivership, there is taxation by the court. The stakeholders can approve or oppose the Receiver’s fee and costs.

The OSB is not involved in either type of appointment.

Restructuring of companies under the Companies’ Creditors Arrangement Act

Canada has a federal statute that governs large corporate restructurings, the Companies’ Creditors Arrangement Act (CCAA). It is a court-led restructuring process for companies with debts of $5 million or more. A licensed trustee serves as a Monitor under the CCAA. The fee for the Monitor is determined by the amount of time spent. The court must assess its fee and costs.

Having set the background information for you, I can now discuss the unreported court decision discussed in the webinar.

trustee in bankruptcy ontario
trustee in bankruptcy ontario

The unreported court decision: Background

A trustee in bankruptcy Ontario and two Ontario insolvency lawyers presented this unreported decision in the webinar. According to the licensed trustee who presented this court ruling, it was his file. If it had been my file, I would not have been so courageous as to use it as a teaching moment for members of the Ontario insolvency community.

The insolvent person is a real estate broker who has experienced substantial income growth. She incurred significant tax liabilities as a result of poor tax planning advice. She owes $417,060 to the Canada Revenue Agency (CRA), her single largest creditor. Other notable creditors include two chartered banks who are owed $119,196 and $44,025, respectively.

The debtor lodged her Division I proposal with the trustee in bankruptcy Ontario which he filed on October 31, 201. The debtor offered to pay her creditors $348,000 in 60 monthly installments of $5,800 under her proposal. A meeting of creditors took place on November 21, 2019. At CRA’s request, the meeting was adjourned to allow for further examination, as is normal when CRA is a major creditor.

The debtor amended her proposal on December 11, 2019, increasing the Proposal Fund to $408,000 payable at $6,800 per month for 60 months. The Amended Proposal was presented to the reconvened meeting of creditors on December 12, 2019. Upon submitting the Amended Proposal, the requisite majority of creditors approved it.

The Amended Proposal was approved by the court on January 28, 2020. The debtor made the 3 monthly payments of $6,800 promised in the Amended Proposal between February and April 2020. In June 2020, the debtor paid a lump-sum payment of $367,600 instead of continuing with monthly payments for the remainder of the 5-year term. The Trustee issued the Certificate of Full Performance of Proposal to the debtor and prepared the documentation needed to request a comment letter from the OSB.

It was stated in the original proposal and the Amended Proposal that the Trustee’s fee would be based upon 12.5% of proceeds plus a $5,000.00 deposit paid by the debtor, plus HST. The total proceeds were $413,007.13. As a result, the Trustee calculated and claimed a fee of $56,000 (plus HST). $56,000 was calculated as an amount equal to $5,000 for the initial deposit paid by the debtor, plus 12.5% of $408,000 (or $51,000).

The unreported court decision: The taxation of the trustee in bankruptcy Ontario accounts

Taxations of this nature are done “over the counter”, unless the Associate Justice has questions. Trustees in bankruptcy prepare the necessary motion material and submit it electronically to the court. The accounts are taxed and the court order issued without the need for the Trustee to appear in court unless the Associate Justice has questions or concerns.

Taxation of the Trustee’s Final Statement of Receipts and Disbursements was conducted by the Associate Justice on July 13, 2020, in writing at which time she adjourned the taxation so that the Trustee could provide the following:

  1. The Trustee’s Report to the Court for approval of the debtor’s Amended Proposal.
  2. Time records of the Trustee.
  3. An explanation of where the proposal money came from, and how the proposal could have been completed within 6 months of filing.

    trustee in bankruptcy ontario
    trustee in bankruptcy ontario

The unreported court decision: The taxation of the trustee in bankruptcy Ontario accounts continues

The matter came back in July in writing. By letter dated July 14, 2020, the Trustee responded to the court’s requests as follows:

  • The Trustee provided the Report to the Court filed upon the approval of the
    Amended Proposal.
  • The Trustee confirmed that no time dockets were kept as the terms of the Amended Proposal provided for the calculation of fees.
  • The source of the funds to pay out the proposal was the re-financing and mortgaging of the debtor’s primary residence.

On July 29, 2020, the Associate Justice adjourned the taxation so that it could proceed by video conference. The Associate Justice ordered the Trustee to give notice of the taxation to the debtor, the
creditors and the OSB. The Associate Justice also directed the Trustee to be prepared to speak to whether
the fee claimed was fair given the 5-year debt restructuring plan took only 6 months to complete.

Neither the creditors nor the OSB attended the video taxation hearing. Therefore it was unopposed to the taxation and the fee claimed by the Trustee.

The unreported court decision: The court’s analysis

As a result, the court considered both positive and negative factors in deciding whether to approve the $56,000 fee for the Trustee.

FOR:

  • by virtue of their approval of the Amended Proposal, the creditors have accepted the Trustee’s fee claim;
  • The Amended Proposal and fee were approved by the court;
  • unsecured creditors will receive a substantial dividend of 54.1% on the ordinary unsecured claims proven;
  • they will receive their dividends much sooner than expected;
  • The Trustee has sent a copy of the Final Statement to all creditors with proven claims and all creditors have been notified of the taxation; no creditors have objected to the fee sought by the Trustee or opposed the approval of the taxation; and
  • the clean OSB comment letter supports taxation and approval of the fee claimed by the Trustee and the OSB did not attend this hearing.

AGAINST:

  • A time docket was not kept by the Trustee to justify the fees claimed in the administration of the estate. There is no record of the hours spent by each level of staff at their normal hourly rate to prove the Trustee’s efforts.
  • Compensation for work not performed by the Trustee is neither fair nor justifiable because it was not done or was not necessary.
  • About five and a half years before the deadline, the debtor made full payment of the Amended Proposal. However, the trustee did not investigate the source of the funds. Although the Trustee claimed that the funds were proceeds from the debtor’s re-financing of her principal residence, he could not provide any additional information.
  • According to the sworn statement of affairs, the debtor had a 50% interest in the principal residence with resulting equity of $47,000 and total equity from the debtor’s interests in two other properties totalling $95,000. Even so, the debtor managed to raise $408,000 through allegedly refinancing only the principal residence. She raised more money against this one asset than the equity listed in all her assets in her sworn statement of affairs!
  • Would the ordinary unsecured creditors have accepted the Amended Proposal if they were aware of more assets available?

The Associate Justice held that the court still has the right to supervise the administration of the estate, and the BIA obligates the court to tax the fee requested by the Trustee. Further, taxation by the court is not a rubber stamp.

trustee in bankruptcy ontario
trustee in bankruptcy ontario

The unreported court decision: The court’s decision and the aftermath

The lack of time dockets made it difficult for the court to determine an appropriate level of compensation. The court would have been able to assess whether the $56,000 fee was reasonable and justified if the Trustee had kept time records. According to the Associate Justice, the trustee in bankruptcy Ontario had not discharged his responsibility for proving that the fee is justified.

Taking everything into account, the court reduced the Trustee’s fee by $15,000 from what was claimed. Accordingly, the court approved a fee of $41,000 plus HST.

As a result, the Trustee sought legal advice. An appeal was filed by the Trustee to a Justice of the Ontario Superior Court of Justice Commercial List appealing the Associate Justice’s decision. The appeal was dismissed. The judge deferred to the experience and discretion of the Associate Justice, who taxes Trustee accounts regularly.

Trustee in bankruptcy Ontario: The moral of this story

I said at the beginning that, had I been in charge of the case, I would not have been so courageous as this Trustee in turning it into a webinar for my colleagues. There is a simple lesson here. The trustee in bankruptcy in Ontario and the rest of Canada must also be a good timekeeper for every insolvency file for which no tariff applies. The Trustee must also be a good record keeper so that questions from the OSB or the court can be adequately answered. Lastly, if something doesn’t make sense, like how you can raise $400,000 from assets that are only worth $142,000, find out why.

Trustee in bankruptcy Ontario summary

I hope you found this trustee in bankruptcy Ontario Brandon Blog informative. Are you in financial distress and a debt crisis? Do you not have adequate funds to pay your financial obligations as they come due? Are you worried about what will happen to you in retirement? Do you need to find out what your debt relief options and realistic debt relief solutions for your family debt are? Is your company in financial hot water?

Call the Ira Smith Team today. We have decades and generations of experience assisting people looking for life-changing debt solutions through a debt settlement plan and AVOID the bankruptcy process.

As licensed insolvency professionals, we are the only people accredited, acknowledged and supervised by the federal government to provide insolvency advice and to implement approaches to help you remain out of personal bankruptcy while eliminating your debts. A consumer proposal is a government-approved debt settlement plan to do that. It is an alternative to bankruptcy. We will help you decide on what is best for you between a consumer proposal vs bankruptcy.

Call the Ira Smith Team today so you can eliminate the stress, anxiety, and pain from your life that your financial problems have caused. With the one-of-a-kind roadmap, we develop just for you, we will immediately return you right into a healthy and balanced problem-free life.

You can have a no-cost analysis so we can help you fix your troubles.

Call the Ira Smith Team today. This will allow you to go back to a new healthy and balanced life, Starting Over Starting Now.

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.

trustee in bankruptcy ontario
trustee in bankruptcy ontario
Categories
Brandon Blog Post

DIFFERENCE BETWEEN CONSUMER PROPOSAL AND BANKRUPTCY: THE PROVEN CANADIAN WAY TO GET DEBT FREE

difference between consumer proposal and bankruptcy
difference between consumer proposal and bankruptcy

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.

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

Difference between consumer proposal and bankruptcy: Know your options

Regular readers of my Brandon Blog know that there are a lot of steps you need to go through to financially reorganize your life. I have written before different blogs on various aspects of both consumer proposals and bankruptcy. The purpose of this Brandon blog is to discuss in one place, the difference between consumer proposal and bankruptcy.

Many people opt for one of these options because life has thrown them a curveball, they no longer have the cash flow to pay off their debts and want to start fresh. There are some great benefits to filing bankruptcy. They include eliminating creditors and debts, getting control over your personal finances, and having a stress-free life, Starting Over, Starting Now. But if you’re considering a first-time bankruptcy, or the bankruptcy option even if you are familiar with the Canadian bankruptcy process from a prior time, you should consider the pros and cons of a consumer proposal, the only government-approved debt settlement plan in Canada. It will be good for you to know the options that I explain below.

Consolidation loans vs consumer proposals

What’s the distinction between a consumer proposal and a debt consolidation loan? The consumer proposal process is an insolvency procedure that allows you to resolve all the amounts you owe to your unsecured creditors via an arrangement with your creditors. It does this without needing you to file bankruptcy. A consumer proposal can only be carried out by a licensed insolvency trustee. A consumer proposal allows you to get rid of all the amount owed by repaying only a part of your financial obligations over time.

A consolidation loan means that you still have sufficient assets and income and a good enough credit score, in order to borrow the total amount you owe. The loan must carry an interest rate lower, and hopefully much lower, than the average interest rate of your combined total debt. You use the loan proceeds to repay 100% of your debts. You now have only one loan with a monthly payment you can afford. Taking out a consolidation loan is not an insolvency process.

difference between consumer proposal and bankruptcy
difference between consumer proposal and bankruptcy

The main difference between consumer proposal and bankruptcy

The consumer proposal is a fundamental part of our personal insolvency system. It is an insolvency procedure controlled by the Bankruptcy and Insolvency Act (Canada) (BIA) that allows individuals who owe $250,000 or less (not including any financial debts secured against their principal home). It permits you to pay a portion of your financial debts with time, yet eliminate all of them if fully executed. It is an alternative to declaring bankruptcy. It is an alternative to bankruptcy.

Bankruptcy is also a fundamental part of our insolvency system under the BIA. However, rather than restructuring, in personal bankruptcy, the person surrenders all of their non-exempt assets to the licensed insolvency trustee for the benefit of the person’s creditors. Once the bankrupt person has fulfilled all of their duties, they are entitled to receive a discharge from bankruptcy, subject to the Trustee or a creditor opposing it.

Personal bankruptcy involves the liquidation of the bankrupt’s assets in return for the eventual elimination of their unsecured debts. It is not considered a restructuring like a consumer proposal is.

Difference between consumer proposal and bankruptcy: The process of filing a consumer proposal vs bankruptcy

You start by talking to a Trustee who will provide you basic guidance on both a consumer proposal and also bankruptcy. The Trustee will likewise inform you specifically just how each process functions. If at the end of that discussion you inform the licensed bankruptcy trustee that you really feel good in wanting to take the next steps with them, the Trustee will provide you with their intake form. When the form is completed, you send it to the Trustee, including supplying any kind of backup documents asked for, the Trustee can then provide you advice for your unique financial difficulties.

If you choose a consumer proposal, the licensed insolvency trustee will prepare the necessary filing documents for you to sign. This includes assisting you with preparing the best possible proposal that works for both you and your creditors. You then meet with the Trustee to sign the documents. The Trustee then files the documents electronically with the Office of the Superintendent of Bankruptcy (OSB). The OSB then issues the Certificate evidencing the filing and the formal process begins.

After seeing your completed intake sheet, the Trustee will advise on whether or not a consumer proposal would work for you, or if your best or only option is filing for bankruptcy. Similarly, in bankruptcy filings, the Trustee prepares all the required filing documents for your signature. The Trustee explains all of them to you, you sign them and the Trustee then electronically files the filing documents with the OSB. The OSB then issues its Certificate evidencing the bankruptcy and that formal process begins.

You initially meet with the licensed bankruptcy trustee, in-person, by video or phone, to share details of your personal situation, and working together, you determine whether a consumer proposal, an alternative to filing bankruptcy, or personal bankruptcy is the best option for you. With COVID-19, we have been holding all of our no-cost consultations and meetings by phone and video. We can do the sign-up process by video and email. We have found this is very convenient for our clients as they are not required to take the time to attend our office in person.

As you can see, the process of filing a consumer proposal vs bankruptcy is not that different. For filing, there is not really a difference between consumer proposal and bankruptcy.

difference between consumer proposal and bankruptcy
difference between consumer proposal and bankruptcy

Major difference between consumer proposal and bankruptcy

Is there a major difference between consumer proposals and bankruptcy? Yes. So far in this discussion, there have not really been major differences. But there really are as the consumer proposal is akin to filing for bankruptcy protection while the other is bankruptcy. Both provide legal protection from creditors. But a consumer proposal gives a person what the media calls filing for bankruptcy protection. When you file for bankruptcy, that calls for the liquidation of non-exempt assets.

Both bankruptcy and a consumer proposal can be excellent options for somebody who is experiencing a challenging financial position. A consumer proposal is an excellent choice for individuals who have the ability to make monthly payments to their creditors totalling less than the amount they owe, yet eliminating all their debts, while keeping the equity they have in assets they wish to keep. Bankruptcy is an excellent choice for those who are bewildered by their financial obligations, and who don’t have a consistent income, making it actually hard or impossible to manage making payments at any level to their creditors.

While both bankruptcy, as well as a consumer proposal, can supply a financial clean slate, there are a few vital distinctions.

In a consumer proposal, you normally get to keep all of your assets. In a bankruptcy, if you have equity in assets that you want to keep, you or someone friendly to you has to pay that equity to your Trustee for the benefit of your creditors. Otherwise, you need to surrender all non-exempt assets to the Trustee for the Trustee to sell them and then put the cash towards the claims of your creditors. The assets covered by your bankruptcy exemptions do not need to be surrendered.

In bankruptcy, you also have the issue of needing to obtain your bankruptcy discharge. If either the Trustee or one or more creditors object to your discharge, then you will not get your automatic bankruptcy discharge and you will have a discharge hearing in Court. You may also be subject to surplus income payments in a bankruptcy, which you will need to make to your Trustee (21 months for a first time bankrupt, 36 months for a second time or more bankruptcy).

The amount to offer your creditors in a consumer proposal has to be a better amount than they would receive from your bankruptcy. After doing the calculations I spoke about above, including any surplus income obligation, you will better understand what amount needs to be offered to your creditors.

Another difference between consumer proposal and bankruptcy is that there is a benefit of a consumer proposal in that you can spread the monthly payments for the amount determined over a term of up to 60 months, interest-free. In a bankruptcy, you are typically required to make any required payments over the term of your bankruptcy, which is much shorter than in a proposal. Therefore the consumer proposal allows you to term out a slightly higher settlement over a longer period of time. This makes the monthly repayment less complicated on your cash flow as well as your budget plan.

Once your consumer proposal is (deemed) accepted by the creditors and (deemed) approved by the Court, you just need to make your promised monthly payments to the Trustee. The Trustee handles making payments at regular intervals to your creditors. Once you have completed the payment promised under the consumer proposal, you receive your Certificate from the Trustee showing that you completed the consumer proposal. That is it. No discharge hearing can be opposed and no extra surplus income payments. It is already accounted for in the amount offered to your creditors in your consumer proposal.

The cost difference between consumer proposal and bankruptcy

When doing a consumer proposal, the fee of the licensed insolvency trustee is included in the payment you negotiate with your creditors. As I mentioned above, the calculation of what to offer in a consumer proposal does not include what the fee and costs are. Rather, it is compared to what the unsecured creditors can expect in bankruptcy.

However, if you were to file bankruptcy, the fee is based on the surplus income you may have to pay (based upon a criterion that includes income and family size) and also any assets that you are required to assign over to the Trustee. You might also have to make month-to-month contributions to cover the fee and costs if your income and non-exempt assets are insufficient to pay for the bankruptcy proceedings.

If there is no surplus income or assets, you, or someone on your behalf, will need to pay the bankruptcy fee which will be approximately $1,800 plus HST.

difference between consumer proposal and bankruptcy
difference between consumer proposal and bankruptcy

Difference between consumer proposal and bankruptcy: What’s worse? Credit rating impact of a bankruptcy vs consumer proposal

Both a consumer proposal and bankruptcy are insolvency proceedings under the BIA. Therefore both will negatively affect your credit rating. In a consumer proposal, your credit rating will show as an R9 on your credit report while you are making payments. Once you have completed your consumer proposal, your credit rating will be an R7 for 3 years after completion.

For a first-time bankrupt, if you were to file for bankruptcy, your credit report will show an R9 rating for 6-7 years after being discharged.

The difference between consumer proposal and bankruptcy summary

I hope that you found this difference between consumer proposal and bankruptcy Brandon Blog interesting. 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 with credit cards maxed out 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 consultation.

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.

Categories
Brandon Blog Post

TRUSTEE IN BANKRUPTCY: CERTAIN ACTIONS AGAINST TRUSTEE CAN BE UNLEASHED WITHOUT FIRST REQUIRING COURT PERMISSION

trustee in bankruptcy
trustee in bankruptcy

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.

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.

Trustee in Bankruptcy: No action against Trustees without leave of court

Canadian insolvency laws say that there cannot be any legal action against trustees in bankruptcy (now called a licensed insolvency trustee) without the prior leave of the court. The leave application, more often than not, would be brought before a Bankruptcy Judge. However, as you will see below, any Judge of the Ontario Superior Court of Justice could hear such an application involving a trustee in bankruptcy.

Section 215 of the Bankruptcy and Insolvency Act (Canada) (BIA) protects the Canadian bankruptcy laws for all officials in the bankruptcy process, including the bankruptcy trustee:

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

In my January 9, 2019, Brandon Blog, PRIVACY BREACH LAWSUIT AGAINST LICENSED INSOLVENCY TRUSTEE FAILS, I described one attempt that failed to obtain leave of the court to begin litigation against a trustee in bankruptcy.

Our bankruptcy and insolvency courts believe that the test to determine whether a court should use its discretion to give leave for litigation to be commenced against either a trustee in bankruptcy or a court-appointed receiver was not a tough test. The protection is only to ensure that the receiver or trustee in bankruptcy is protected against senseless or burdensome actions that have no basis.

In this Brandon Blog, I describe a recent Ontario court decision that further clarifies a basis for when the court will exercise its discretion and allow litigation against a licensed trustee in bankruptcy. As the Motions Judge used the old terminology, I will stick with it in this blog.

Action against the trustee in bankruptcy background

The Motion Judge‘s Endorsement was released on May 31, 2021. The Endorsement was from a motion by the plaintiff for a determination as to whether or not leave of the court under S.215 of the BIA was required. The plaintiff’s position was that it was not, but if it was, such leave should be granted. The defendant trustee in bankruptcy’s position was that leave was required and should not be granted.

The plaintiff, Mr. Flight, ended up filing bankruptcy proceedings 4 times over a 13 year period of time! He filed the same type of bankruptcy over and over again! He claims his financial situation is the fault of the defendant trustee in bankruptcy. He used the same trustee in bankruptcy for all of his bankruptcies! It is not clear in this motion how the trustee is responsible for his having to file personal bankruptcy all those times.

Mr. Flight brings on litigation against the trustee in bankruptcy claiming negligence, fraud, breach of fiduciary duty, unjust enrichment and conversion. The complainant claims the accused failed to identify and take suitable action relating to a fraud perpetrated by the bookkeeper for Mr. Flight’s sole proprietorship business.

The plaintiff’s amended claim seeks a declaration the defendant engaged in misfeasance, negligence, fraud and breach of fiduciary duty in his personal capacity, and that the defendant was unjustly enriched.

trustee in bankruptcy
trustee in bankruptcy

The plaintiff’s claim against the trustee in bankruptcy

The main subject matter of the claim alleges the bookkeeper’s theft caused the plaintiff’s repeated bankruptcies and that the defendant trustee in bankruptcy ought to have detected this fraud in the administration of the four bankruptcies.

The plaintiff maintains that the trustee in bankruptcy then failed to take any meaningful action to address the alleged fraud and its impact on the fourth bankruptcy after its discovery. In particular, the plaintiff claims the trustee failed to diligently commence an action against the former bookkeeper, failed to investigate the fraud, failed to adjust the plaintiff’s surplus income, failed to recommend debt relief options or financial options, and certainly no other possible insolvency process such as a consumer proposal alternative to bankruptcy and failed to have the plaintiff promptly discharged from his fourth bankruptcy.

The defendant’s alleged “grand failure to act” caused Mr. Flight damages of $10 million from loss of business, loss of profit, loss of income and pain and suffering.

The court’s analysis

As I mentioned above, the threshold issue under Canadian insolvency legislation is whether the plaintiff required leave to commence this action. If it is determined that leave is required, the analysis then moves to whether the claim meets the test for leave.

The Motion Judge stated that there is authority to support the plaintiff’s position that the insolvency laws state that leave is not required where the trustee in bankruptcy is being sued in its personal capacity.

More particularly, the Supreme Court of Canada held that the leave provision under the BIA is not to be interpreted as though it applied to any action arising out of the administration of the estate. That is not the way section 215 is worded. To allege that the trustee in bankruptcy made an act of omission is a claim that is not concerning a report made under or any action taken according to the BIA.

trustee in bankruptcy
trustee in bankruptcy

Trustee in bankruptcy: The court’s decision

The plaintiff alleges causes of action against the trustee in bankruptcy in his personal capacity in their amended statement of claim and affidavit materials for negligence, fraud, breach of fiduciary duty, unjust enrichment and conversion starting with the confidential consultation and with each bankruptcy assignment. The Motion Judge concluded that the plaintiff does not require leave under s. 215 of the BIA to commence this action. Based on this conclusion, the Motion Judge did not need to consider anything further.

You will observe as I previously stated, none of the court’s evaluation had anything to do with whether the claims had a possibility of success in its litigation legal process. The Motion Judge, who was not a Bankruptcy Judge but rather a Motion Judge felt the accusations were such that they were not purposeless or burdensome actions that have no basis.

As the main action will now proceed, I will follow the case to find out the exact details and the various bankruptcy claims that Mr. Flight is making regarding the conduct of trustees involved. As the case is reported, I will report to you.

Finding a good, Licensed Insolvency Trustee (Trustee In Bankruptcy) Near You

I hope that you found this trustee in bankruptcy Brandon Blog interesting. 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.

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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.

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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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