As the COVID-19 pandemic continues, we hope that you, your family, and your friends are safe, healthy, and secure. Ira Smith Trustee & Receiver Inc. is fully operational, and both Ira and Brandon Smith are readily available for phone or video consultations.
Bankruptcy search: What bankruptcy records exist in Canada?
Records of bankruptcy exist in Canada in four different forms. A party can use three of them to determine whether a specific company or person has filed for bankruptcy or some other form of insolvency.
Bankruptcy search type 1: Bankruptcy and insolvency records search
If you need to file for bankruptcy or to file a consumer proposal or a full restructuring proposal under the Bankruptcy and Insolvency Act (Canada) (BIA), you may be distressed. Their main concern is who will know about my bankruptcy and who can see my bankruptcy records? As I will explain, there is a very small probability that anyone who is not a creditor of yours will find out about an individual insolvency filing by the methods it is made public, notwithstanding they are public records.
There are 6 different kinds of official bankruptcy records that you might want to search. These include:
- Personal bankruptcies
- Business/corporate bankruptcies
- Corporate/business receivership.
- Consumer proposals
- Full BIA proposals
- Companies’ Creditors Arrangement Act (CCAA) bankruptcy protection filings
Personal bankruptcies are those which are filed by individuals. Business bankruptcies are those which involve businesses.
Insolvency filings in Canada are available through the Bankruptcy and Insolvency Records Search database of the Office of the Superintendent of Bankruptcy (OSB). In order to search by name, enter the search criteria information you know in any order and click “Search.” If you are not entitled to a search account like a licensed insolvency trustee is, a minimum fee of $8 will be assessed for each set of 10 (or fewer) records.
A lot of people don’t know about this database. Furthermore, nosy neighbours are not going to pay $8 to do a search of bankruptcy records and spend time in front of the search screen to find out whether a person or company has filed for bankruptcy, whether a consumer proposal has been filed, whether a full BIA proposal has been filed, whether a company has filed for bankruptcy protection under the CCAA, or whether a business is in receivership. It is really only licensed insolvency trustees who need to do frequent searches. There is no other internet search tool or online search service in Canada.
Bankruptcy search type 2: How long do credit bureaus report consumer bankruptcies?
Insolvency and bankruptcy records for all Canadians maintained by the OSB can be accessed by credit reporting agencies such as Equifax and TransUnion. Additionally, they have access to the names and addresses of individuals who have declared bankruptcy. Since it pertains to consumers, they call the information they collect about insolvency filings “consumer reports” or “credit bureau records”.
If you don’t consent in writing in advance, no one can pull your credit report. Most likely, when you apply for a credit card or a loan, you authorize the credit card company or financial institution to pull your credit report. You may also authorize a credit report to be obtained when you apply for insurance or rent an apartment.
If you don’t give written permission, that person won’t be able to get your credit report. An insolvency filing on your credit report is not visible to a friend, relative or neighbour. Depending on whether it is a personal bankruptcy or another type of personal insolvency filing, these companies keep a record of the past insolvency filing on file for varying amounts of time. In the case of consumer bankruptcy, the credit report will probably show the past bankruptcy for seven years after the discharge is granted. Upon completion of a consumer proposal, it takes slightly less time.
Bankruptcy search type 3: Will my bankruptcy be published in the newspaper?
In the past, I have written about the differences between a summary administration consumer bankruptcy and an ordinary administration personal bankruptcy. Under the streamlined summary administration rules, a bankrupt person’s assets cannot have an expected liquidation value greater than $15,000.
Notice of bankruptcy does not have to be published in a summary administration bankruptcy. The Trustee must publish a notice in the prescribed form in a local newspaper as soon as possible after the bankruptcy and no later than five days before the first meeting of creditors in any ordinary administration personal bankruptcy or corporate bankruptcy (which is, by definition, an ordinary administration).
Newspapers publish bankruptcy notices in the legal notice section. Lawyers, trustees, and bankers are the only people who regularly look in that section. To find your name, someone would have to read all the local newspapers every day for the bankruptcy notice of you or your company. The chances of someone you know seeing the notice of bankruptcy published in the newspaper are extremely slim, but not impossible.
Bankruptcy search type 4 is only available to a select few
In contrast to the previous three types of bankruptcy searches, this type is only available to a select few. Furthermore, it is the subject of this unreported Ontario court decision I am going to tell you about. I am talking about the bankruptcy search of records and files kept by licensed insolvency trustees who handle bankruptcy filings for individuals and corporations.
Under the BIA, the Trustee must allow the OSB, the bankrupt, or any creditor access to the bankruptcy administration’s books, records, and documents. Trustees’ books and records are available only to them.
Now for the unreported decision. You may recall that I previously wrote a Brandon Blog titled “TRUSTEE IN BANKRUPTCY: CERTAIN ACTIONS AGAINST TRUSTEE CAN BE UNLEASHED WITHOUT FIRST REQUIRING COURT PERMISSION“. During a period of 13 years, Mr. Flight filed for bankruptcy 4 times! Over and over again, he filed the same type of bankruptcy. According to him, the defendant Trustee in bankruptcy is responsible for his financial situation. In a lawsuit filed against the trustee in bankruptcy, Mr. Flight claims negligence, fraud, breach of fiduciary duty, unjust enrichment, and conversion. Allegations are made that the accused failed to identify and correct a fraud perpetrated by a bookkeeper for Mr. Flight’s sole proprietorship business.
Recently, they appeared in court. M. Flight’s motion was decided by the Judge on December 7, 2021. The motion was for:
- the delivery of all the records pertaining to all four bankruptcies involving Mr. Flight, including the records related to the action commenced by the Trustee against the bookkeeper; as well as
- to examine Mr. Flight’s Trustee to investigate the administration of the 4 bankruptcies.
Mr. Flight’s counsel claims the Trustee has returned some but not all of the documents with respect to the last bankruptcy filing in 2016. That was the focus of the hearing. Other filings occurred in 2004, 2006, and 2011, all outside the statutory period of four years during which the Trustee is obligated to keep the records.
Counsel for the Trustee asserts that copies of the records have been produced and that the request for an examination is an improper fishing expedition with the collateral purpose of bolstering a separate lawsuit brought by Mr. Fight against the Trustee.
Bankruptcy search: The Judge’s analysis
As per the Judge, a Trustee must maintain proper books and records when administering estates under the BIA. It is directed that the Trustee allow the bankrupt as well as those I mentioned to inspect and copy those books, records, and documents. A Trustee is required to retain records related to estate administration for at least four years following discharge under Rule 68 of the Bankruptcy and Insolvency General Rules.
Moreover, the Judge noted that based on the Trustee’s evidence, no books or records from Mr. Flight’s first 3 bankruptcy cases are in the Trustee’s possession. The Judge found that the Trustee made an effort to provide copies of the documents sought. Due to the submissions by both sides leads to a discrepancy between the number of pages sent by the Trustee and those received by Mr. Flight, the only practical solution is to perform a review and reconciliation of what was sent by the Trustee and what is still in its possession, with those documents received by Mr. Flight.
Bankruptcy search: The Judge’s decision
Within 60 days of the court’s order, counsel for Mr. Flight or its representative may arrange and attend the Trustee’s office or as directed by Trustee’s counsel to examine the file as produced and do their bankruptcy search. The Trustee shall be permitted to designate a representative to facilitate and oversee the examination of documents.
At that time, Mr. Flight’s counsel or his representative may scan an electronic copy of the documents using a scanning device provided by Mr. Flight’s counsel or his representative. All the documents involved in the proceedings shall be made available as may be necessary to provide a complete account of the Trustee’s administration of the estate.
If the parties disagree over whether certain documents should be allowed to be viewed and copied, they can go back to court. According to the Judge, an examination of the Trustee was not appropriate at this time. A Trustee examination is premature until the final determination has been made as to whether all documentation has been provided.
As I have already stated, this kind of bankruptcy search is not one of the normal ones you think of.
Bankruptcy search: Summary
I hope you found this bankruptcy search Brandon Blog informative. Are you or your company in financial distress and a debt crisis? Are you embroiled in costly litigation or a crushing debt load and need a time out in order to restructure? 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 search 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.
As the COVID-19 pandemic continues, we hope that you, your family, and your friends are safe, healthy, and secure. Ira Smith Trustee & Receiver Inc. is fully operational, and both Ira and Brandon Smith are readily available for phone or video consultations.
