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Rules Amending the Bankruptcy and Insolvency General Rules SOR/DORS/2007-61
Jean Edmonds Tower South
365 Laurier Avenue West
8th Floor
Ottawa, Ontario
K1A 0C8
http://osb-bsf.ic.gc.ca
Date: July 6, 2007
To: All OSB Employees, Trustees and Registrars
Subject: Rules Amending the Bankruptcy
and Insolvency General Rules, SOR/2007-61
The Office of the Superintendent of Bankruptcy would like to inform you that the Rules Amending the Bankruptcy and Insolvency General Rules were registered by the Clerk of the Privy Council on March 22, 2007 (SOR/2007-61), published in the Canada Gazette, Part II, on April 4, 2007 (Vol.141, No. 7), and tabled in Parliament on June 8, 2007. Please note that these Rules came into force on the day on which they were registered. A copy of these rules is attached for your reference (Annex I). You may also consult the OSB's web site at: http://osb-bsf.ic.gc.ca or the Canada Gazette website at: http://canadagazette.gc.ca to view the amended Rules.
On December 15, 2004, the Federal Law–Civil Law Harmonization Act, No. 2 (S.C., 2004, c. 25) came into force. This Act amended the Bankruptcy and Insolvency Act) with a view to ensuring that it accurately expresses both civil law and common law concepts and terminology in both the French and English versions. These technical amendments include addressing problems with expressions that do not have a precise equivalent term in Quebec civil law or whose meaning is ambiguous; inadequacies between the language of federal legislation and that of civil law; terminology that reflects civil law in one version and common law in the other; and, concepts and terminology expressed exclusively using common law vocabulary.
The harmonization of federal legislation with the Quebec civil law facilitates the administration of federal law in the Province of Quebec by making it easier to understand and interpret by those who must apply it.
As a result of the amendments brought to the Bankruptcy and Insolvency Act, similar technical amendments have been made to the Bankruptcy and Insolvency General Rules in order to ensure that their wording is consistent with that of the enabling legislation.
The amendments do not alter any rights or obligations in the Bankruptcy and Insolvency Act and the Bankruptcy and Insolvency General Rules.
For additional information on this matter, please do not hesitate to contact Sheila Robin, Senior Analyst, by phone at 613-948-5006, by fax at 613-948-4080, or by e-mail at robin.sheila@ic.gc.ca
Alain Lafontaine
Superintendent of Bankruptcy
Annex I
Vol. 141, No. 7 — April 4, 2007
Registration
SOR/2007-61 March 22, 2007
Bankruptcy and Insolvency Act
Rules Amending the Bankruptcy and Insolvency General Rules (Miscellaneous Program)
P.C. 2007-400 March 22, 2007
Her Excellency the Governor General in Council, on the recommendation of the Minister of Industry, pursuant to subsection 209(1) of the Bankruptcy and Insolvency Act (see footnote a), hereby makes the annexed Rules Amending the Bankruptcy and Insolvency General Rules (Miscellaneous Program).
Rules Amending the Bankruptcy and Insolvency General Rules (Miscellaneous Program)
Amendments
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1. The definition "petition" in section 1 of the Bankruptcy and Insolvency General Rules (see footnote 1) is repealed.
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2. Section 2 of the English version of the Rules is replaced by the following:
2. Documents that by the Act are to be prescribed must be in the form prescribed, with any modifications that the circumstances require and subject to any deviations permitted by section 32 of the Interpretation Act, and must be used in proceedings under the Act.
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3. Subsection 6(4) of the English version of the Rules is replaced by the following:
(4) The court may, on an ex parte application, exempt any person from the application of subsection (2) or order any terms and conditions that the court considers appropriate, including a change in the time limits.
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4. Section 8 of the English version of the Rules is replaced by the following:
8. An interim receiver, a trustee, an administrator of a consumer proposal, an official receiver or a representative of the Superintendent is not required to be represented by a barrister or solicitor or, in the Province of Quebec, an advocate when appearing before a registrar on any court proceeding under the Act.
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5. Section 15 of the English version of the Rules is replaced by the following:
15. A warrant issued under the Act, including a warrant of seizure and a search warrant, must be executed by the executing officer.
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6. Section 17 of the English version of the Rules is replaced by the following:
17. Subject to any contrary order of the court, a person in possession or control of any property seized under the Act or these Rules shall immediately deliver it to the trustee or the interim receiver.
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7. Section 23 of the Rules is replaced by the following:
23. The court may, on ex parte application by a trustee, order a barrister or solicitor or, in the Province of Quebec, an advocate to submit a bill of costs to the trustee, or to bring the bill of costs into court to be taxed, and, if the barrister, solicitor or advocate fails to comply, the court may, on ex parte application by the trustee, order that the trustee distribute the proceeds of the estate that the trustee possesses without regard to the barrister, solicitor or advocate's bill of costs.
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8. Subsection 24(1) of the Rules is replaced by the following:
24. (1) The barrister or solicitor or, in the Province of Quebec, the advocate shall give to the trustee, to any other person who is liable for payment of the bill of costs and, on request, to the Division Office, a notice of the time and place of the taxation, at least 10 days before the day set for the taxation.
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9. Paragraph 43(1)(a) of the English version of the Rules is replaced by the following:
(a) to their employees, agents or mandataries, or persons not dealing at arms' length with the trustees;
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10. Section 52 of the English version of the Rules is replaced by the following:
52. Trustees, in the course of their professional engagements, shall apply due care to ensure that the actions carried out by their employees, agents or mandataries or any persons hired by the trustees on a contract basis are carried out in accordance with the same professional standards that those trustees themselves are required to follow in relation to that professional engagement.
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11. Section 54 of the English version of the Rules is replaced by the following:
54. A certificate of the official receiver, or a certified copy of it, is admissible in any proceeding under the Act as evidence of the appointment or substitution of a trustee, without proof of the authenticity of the signature or of the official character of the signatory.
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12. Paragraph 62(c) of the English version of the Rules is replaced by the following:
(c) if inspectors have been appointed by the creditors, the trustee's final statement of receipts and disbursements showing approval by the inspectors' signature or, if there is no approval, showing the reasons for the non-approval.
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13. (1) Subsection 68(2) of the French version of the Rules is replaced by the following:
(2) Sauf ordonnance contraire du tribunal, le syndic envoie après sa libération un avis écrit au débiteur, au failli ou à un dirigeant de la personne morale en faillite — à moins d'avoir reçu une renonciation écrite à l'avis — à sa dernière adresse connue, l'informant que lui ou son représentant peut, dans les trente jours suivant l'envoi de l'avis, reprendre les livres, registres et documents lui appartenant qui ne sont pas visés par le paragraphe (1).
(2) Subsection 68(4) of the Rules is replaced by the following:
(4) Documents on which legal counsel has a lien or a right of retention shall be returned to the legal counsel on completion of the administration of the estate to which the documents relate.
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14. The heading before section 69 of the Rules is replaced by the following:
APPLICATION FOR BANKRUPTCY ORDER
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15. Subsections 70(1) and (2) of the Rules are replaced by the following:
70. (1) A notice indicating the time and place of the hearing of the bankruptcy application, together with a certified copy of the application and of the affidavit referred to in subsection 43(3) of the Act, must be served on the debtor, on the trustee named in the application and on the Division Office at least 10 days, or any shorter period that the court may order, before the hearing.
(2) A copy of every bankruptcy application served in accordance with this section must immediately be filed at the office of the registrar and at the Division Office.
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16. Sections 72 to 76 of the Rules are replaced by the following:
72. Service of a bankruptcy application must be proved by affidavit or bailiff's return of service, attached to the original application and filed with the court at least two days before the date of the hearing set out in the application.
73. In the case of a deceased debtor, service of a bankruptcy application must be effected on the executor or administrator of the estate or the liquidator of the deceased debtor's succession.
74. A debtor who contests a bankruptcy application shall file with the court in which the application was filed a notice setting out the contested allegations contained in the application, the grounds for contesting them and the debtor's address, and shall serve a copy of the notice on the applicant or their barrister or solicitor or, in the Province of Quebec, their advocate, at least two days before the date of the hearing set out in the application.
75. If a debtor who has filed a notice under section 74 does not appear at the hearing of the bankruptcy application, the court may make a bankruptcy order based on the allegations contained in the application if the court considers those allegations to be sufficient.
76. If the hearing of a bankruptcy application has been stayed for the trial of an issue in dispute on a question of fact, the registrar shall, as soon as the issue has been determined, on the application of the debtor or the applicant, fix a time and place for the resumption of the hearing, and the party who makes the application shall give the other party at least two days' notice of the time and place fixed by the registrar.
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17. Section 78 of the Rules is replaced by the following:
78. If a bankruptcy application is dismissed, the court may, on application presented within 30 days after the day of the dismissal, give judgment with respect to any claim for damages, or with respect to any claim other than a claim for damages arising out of the appointment of an interim receiver, and may make any orders that the court sees fit.
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18.Section 83 of the Rules and the heading before it are replaced by the following:
BANKRUPTCY ORDERS
83. (1) The applicant shall, as soon as possible and not later than two days after a bankruptcy order is made under subsection 43(6) of the Act, serve, deliver personally or send by courier, facsimile or electronic transmission a copy of the order to the trustee appointed under subsection 43(9) of the Act.
(2) Within two days after receiving the copy of the bankruptcy order, the trustee shall serve a copy of the order on the bankrupt and send a copy to the Division Office.
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19. Subsection 84(1) of the Rules is replaced by the following:
84. (1) An application to revoke a bankruptcy order or to stay proceedings may be made to the court if a notice of the application, together with copies of supporting affidavits, is served on the applicant and the trustee and is filed with the Division Office.
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20. Paragraph 87(1)(b) of the English version of the Rules is replaced by the following:
(b) the preliminary statement of affairs that accompanied the assignment when it was filed with the official receiver, if a preliminary statement of affairs was prepared;
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21. The portion of section 94 of the English version of the Rules before paragraph (a) is replaced by the following:
94. If an official receiver, under paragraph 57(b) or 61(2)(b) or subsection 63(6) of the Act, issues a certificate of assignment, the official receiver shall immediately
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22. Section 95 of the English version of the Rules is replaced by the following:
95. The notice to disclaim or resiliate a lease that is given by an insolvent person to a lessor under subsection 65.2(1) of the Act must be in prescribed form and must be given in the manner provided for in the lease or, in the absence of such a provision in the lease, must be served or be sent by registered mail or courier.
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23. Section 97 of the English version of the Rules is replaced by the following:
97. For the purposes of subsection 66.17(1) of the Act, the manner in which a creditor who has proved a claim may indicate to the administrator assent to or dissent from the consumer proposal is in person, by personal delivery, by agent or mandatary, by proxy, by mail, by facsimile or by electronic transmission.
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24. Subsection 104(4) of the English version of the Rules is replaced by the following:
(4) Within the 30 days after the day on which notice was served or sent, the contributory may dispute their liability, in whole or in part, in respect of the amount to be contributed, by giving the trustee a written notice of dispute setting out the disputed items and the grounds for disputing them and, after this notice is given, except with leave of the court, the contributory may not plead any other ground of dispute in any proceedings brought against the contributory by the trustee.
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25. (1) Subsection 105(7) of the English version of the Rules is replaced by the following:
(7) The mediator shall send a copy of the notice of the mediation, in prescribed form, to the bankrupt, to the trustee and to any creditor who requested mediation, at least 15 days, or any shorter period that may be agreed to by all the parties concerned, before the date set for the mediation.
(2) Subsection 105(13) of the English version of the Rules is replaced by the following:
(13) Despite paragraphs (9)(b) and (d) and (12)(d) and (f), the absence of one or more creditors who requested mediation, or the inability of one or more creditors who requested mediation to continue the mediation, is not a ground for adjourning or cancelling the mediation if at least one creditor who requested mediation is present at the mediation, or is able to continue the mediation, as the case may be.
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26. Section 107 of the Rules is replaced by the following:
107. The registrar may
(a) in the Province of Quebec, if an immovable or any right relating to it is the object of litigation under sections 91 to 100 of the Act, authorize the plaintiff to apply for the registration of a notice of advance registration in the appropriate register after a copy of the demand signed by the plaintiff's advocate is filed with the court; and
(b) in any other province, if real property or any interest relating to it is the object of litigation under sections 91 to 100 of the Act, issue a certificate of lis pendens after a copy of the statement of claim signed by the plaintiff's barrister or solicitor is filed with the court, and, if the plaintiff is unsuccessful in whole or in part, issue a certificate of disallowance.
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27. Section 113 of the English version of the Rules is replaced by the following:
113. The notice of disallowance or notice of valuation provided by a trustee under subsection 135(3) of the Act to a person whose claim, right to a prior rank, or security has been disallowed or on which a valuation has been made, in whole or in part, must be served, or sent by registered mail or courier.
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28. Section 115 of the Rules is replaced by the following:
115. Examinations, other than those under section 159 or 161 of the Act, shall be held before a registrar, before a person who is qualified to hold examinations for discovery, examinations of judgment debtors or examinations of debtors after judgment or before any other person that the court may, on ex parte application, order, and shall be conducted in accordance with the rules of court in civil cases.
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29. Paragraph 116(1)(b) of the English version of the Rules is replaced by the following:
(b) at any place that the court may, on ex parte application, order.
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30. Section 119 of the Rules is replaced by the following:
119. The court may, on an application for the discharge of a bankrupt, summon the bankrupt to appear for examination.
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31. Subsection 120(2) of the English version of the Rules is replaced by the following:
(2) If the bankrupt does not give the consent referred to in subsection (1) within 10 days after the date of the conditional order of discharge, the court may, on application by the trustee, revoke the conditional order of discharge or make any other order that the court considers appropriate.
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32. Subsection 122(2) of the English version of the Rules is replaced by the following:
(2) For the purposes of subsection 11.1(2) of the Act, the Superintendent shall keep or cause to be kept any other records relating to the administration of the Act that the Superintendent deems advisable, for at least six years after the date on which they are opened.
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33. Paragraph 127(c) of the French version of the Rules is replaced by the following:
c) le détail relatif à la disposition de tout bien dont il a pris la possession ou le contrôle et qui n'est pas mentionné dans l'état définitif des recettes et des débours.
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34. Paragraph 132(1)(a) of the Rules is replaced by the following:
(a) $75 for an estate under summary administration in respect of an individual bankrupt who has never before been bankrupt under the laws of Canada or of any jurisdiction prescribed under section 168.1 of the Act and, in the case of any other bankruptcy, $150, payable at the time of filing an assignment under subsection 49(3) of the Act or at the time of the making of a bankruptcy order under subsection 43(6) of the Act;
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35. The schedule to the Rules is amended by replacing the reference "(Section 1)" after the heading "SCHEDULE" with the reference "(Section 1 and paragraphs 128(2)(c) and 129(1)(f))".
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36. Section 3 of Part I of the schedule to the Rules is replaced by the following:
| 3.
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To present, oppose or attend on application or motion to institute proceeding to court for approval of proposal
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4.00
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37. Section 5 of Part I of the schedule to the Rules is replaced by the following:
| 5.
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To support or oppose an application or motion to court or chambers
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4.00
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38. Section 11 of Part I of the schedule to the Rules is replaced by the following:
| 11.
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Statement of claim, motion to institute proceeding, defence or any pleading instructed by the court or a judge to be drawn
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6.00
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39. Section 14 of Part I of the schedule to the Rules is replaced by the following:
| 14.
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Any other document commencing a proceeding not commenced by bankruptcy application, statement of claim or motion to institute proceeding and any document in answer to same
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6.00
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40. Section 15 of Part I of the schedule to the French version of the Rules is replaced by the following:
| 15.
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Avis de requête, motion, objection ou contestation
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4,00
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41. Section 20 of Part I of the schedule to the Rules is replaced by the following:
| 20.
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Statement of claim, motion to institute proceeding, defence or other pleading
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3.00
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42. Section 23 of Part I of the schedule to the Rules is replaced by the following:
| 23.
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Any other document commencing a proceeding not commenced by bankruptcy application, statement of claim or motion to institute proceeding and any document in answer to same
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3.00
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43. Section 24 of Part I of the schedule to the French version of the Rules is replaced by the following:
| 24.
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Avis de requête, motion, objection ou contesttion
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2,00
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44. Section 27 of Part I of the schedule to the French version of the Rules is replaced by the following:
| 27.
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Avis de produire, avis de reconnaître la véracité ou demande d'aveux
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2,00
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45. Section 29 of Part I of the schedule to the Rules is replaced by the following:
| 29.
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Every writ, warrant, certificate of judgment or lis pendens or notice of advance registration, including instructions, drawing and attendance to issue, register and deliver the same
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10.00
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46. Section 41 of Part I of the schedule to the French version of the Rules is replaced by the following:
| 41.
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Avis de produire, avis de reconnaître la véracité ou demande d'aveux
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2,00
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47. Sections 47 and 48 of Part I of the schedule to the French version of the Rules are replaced by the following:
| 47.
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Vacation à la suite de la signification d'un avis de produire, d'un avis de reconnaître la véracité ou d'une demande d'aveux, ou d'un avis prescrit par quelque loi
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2,00
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| 48.
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Vacation pour obtenir une autorisation spéciale aux fins de signifier un avis de requête, de motion ou d'appel, à la discrétion de l'officier taxateur
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3,00
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48. Section 58 of Part I of the schedule to the Rules and the heading before it are replaced by the following:
SECURITY FOR COSTS
| 58.
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On giving of any security for costs in any proceeding, including drawing and engrossing same, and all affidavits and copies, and necessary attendances and taking of affidavits in discretion of taxing officer but not to exceed
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20.00
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49. Sections 65 and 66 of Part I of the schedule to the English version of the Rules are replaced by the following:
| 65.
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Attending for any praecipe order or any order of the Office of the Court
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2.00
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| 66.
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Any praecipe order or order of the Office of the Court
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2.00
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50. (1) Paragraph 67(c) of Part I of the schedule to the English version of the Rules is replaced by the following:
| (c)
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Praecipe or order of the Office of the Court to pay in or obtain out of court
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1.00
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(2) Paragraph 67(g) of Part I of the schedule to the English version of the Rules is replaced by the following:
| (g)
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Praecipe or order of the Office of the Court for certificate of account
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1.00
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51. The heading "COUNSEL FEES" before section 73 of Part I of the schedule to the Rules is replaced by the following:
BARRISTERS' OR SOLICITORS' OR, IN THE PROVINCE OF QUEBEC, ADVOCATES' FEES
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52. (1) Paragraph 73(a) of Part I of the schedule to the Rules is replaced by the following:
| (a)
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Statement of claim, motion to institute proceeding, defence, or any other pleading
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10.00
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(2) Paragraph 73(c) of Part I of the schedule to the French version of the Rules is replaced by the following:
| c)
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Avis de requête ou de motion spécial
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10,00
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(3) Paragraph 73(g) of Part I of the schedule to the Rules is replaced by the following:
| (g)
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Application or motion to institute proceeding in connection with any proposal
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10.00
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53. Sections 74 and 75 of Part I of the schedule to the Rules are replaced by the following:
| 74.
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Attendance of barrister or solicitor or, in the Province of Quebec, advocate on examination for discovery, cross-examination on affidavits, examination of witness on motion, examination of witness de bene esse, examination of bankrupt, or any similar examination, per hour, not to exceed
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10.00
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| 75.
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Consultation with barrister or solicitor or, in the Province of Quebec, advocate of client if proper, in the opinion of the taxing officer, per hour, not to exceed
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10.00
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54. Section 77 of Part I of the schedule to the French version of the Rules is replaced by the following:
| 77.
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Sur requête ou motion contestée devant un juge
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40,00
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Peut être diminué ou augmenté à la discrétion de l'officier taxateur.
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55. Sections 78 to 80 of Part I of the schedule to the Rules are replaced by the following:
| 78.
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On ex parte application or motion before a judge
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20.00
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| 79.
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Attendance on opposed application or motion to registrar
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20.00
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| 80.
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Both of above items may be increased in the discretion of the taxing officer
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15.00
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56. (1) The portion of section 84 of Part I of the schedule to the Rules before paragraph (a) is replaced by the following:
84. Barrister or solicitor or, in the Province of Quebec, advocate fee with brief on
(2) The portion of section 84 of Part I of the schedule to the Rules after paragraph (f) is replaced by the following:
May be reduced or increased in the discretion of the taxing officer.
For second barrister or solicitor or, in the Province of Quebec, advocate, if allowed by a judge, 2/3 of the fees allowed under this item to first barrister, solicitor or advocate
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57. Section 85 of Part I of the schedule to the Rules is replaced by the following:
85. Barrister or solicitor or, in the Province of Quebec, advocate fee for services rendered in or out of court in settling or compromising a claim or proceedings or endeavouring to do so is in the discretion of the taxing officer and may be calculated by way of commission or percentage on amount recovered or defended or on value of property concerned or any other basis as the taxing officer considers proper.
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58. Section 87 of Part I of the schedule to the Rules is replaced by the following:
87. The taxing officer may, in their discretion, allow fair and reasonable fees and allowances for necessary and proper services rendered by barristers or solicitors or, in the Province of Quebec, advocates for which no fees or allowances are provided by the tariff.
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59. The heading before section 88 of Part I of the schedule to the English version of the Rules is replaced by the following:
BARRISTERS' OR SOLICITORS' OR, IN THE
PROVINCE OF QUEBEC, ADVOCATES' FEES
ON COLLECTION OF ACCOUNTS
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60. Section 89 of Part I of the schedule to the Rules is replaced by the following:
89. Fees and allowances payable to witnesses shall be those in effect within each province or territory.
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61. Paragraph 2(b) of Part II of the schedule to the Rules is replaced by the following:
(b) the debtor has become bankrupt following a bankruptcy order made under subsection 43(6) of the Act, has filed an assignment under subsection 50(4.1) of the Act or is deemed to have made an assignment under subsection 50.4(8) or (11), paragraph 57(a) or subsection 61(2) or 63(4) of the Act.
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62. (1) Paragraph 4(a) of Part II of the schedule to the Rules is replaced by the following:
| (a) an application for a bankruptcy order
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$150
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(2) Paragraphs 4(b) to (d) of Part II of the schedule to the French version of the Rules are replaced by the following:
| b) requête ou motion pour la nomination d'un séquestre intérimaire
|
50 $
|
| c) requête ou motion selon les articles 248 ou 249 de la Loi
|
50 $
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| d) requête ou motion pour mode spécial de signification
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10 $
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(3) The portion of paragraph 4(e) of Part II of the schedule to the French version of the Rules before subparagraph (i) is replaced by the following:
| e) toute autre requête ou motion :
|
|
(4) The portion of paragraph 4(h) of Part II of the schedule to the English version of the Rules before subparagraph (i) is replaced by the following:
| (h) taxing a bill of legal services costs for
|
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63. The English version of the Rules is amended by replacing the word "where" with the word "if" wherever it occurs in the following provisions:
(a) section 4;
(b) subsection 6(2);
(c) subsection 9(6);
(d) section 10;
(e) subsection 16(3);
(f) paragraph 21(b)
(g) paragraph 21(d);
(h) subsection 26(1);
(i) section 27;
(j) subsection 31(2);
(k) the portion of subsection 43(1) before paragraph (a);
(l) the portion of subsection 43(2) before paragraph (a);
(m) section 57;
(n) section 60;
(o) the portion of subsection 64(1) before paragraph (a);
(p) the portion of subsection 65(1) before paragraph (a);
(q) subparagraph 65(1)(c)(i);
(r) the portion of subsection 65(3) before paragraph (a);
(s) the portion of subsection 66(1) before paragraph (a);
(t) the portion of subsection 67(2) before paragraph (a);
(u) subparagraph 67(2)(c)(i);
(v) the portion of subsection 67(4) before paragraph (a);
(w) subparagraph 67(4)(c)(i);
(x) subsection 68(3);
(y) subsection 71(1);
(z) section 81;
(z.1) subsection 82(1);
(z.2) section 89;
(z.3) paragraph 98(c);
(z.4) the portion of subsection 100(1) before paragraph (a);
(z.5) the portion of subsection 101(1) before paragraph (a);
(z.6) paragraph 101(1)(b);
(z.7) the portion of subsection 101(3) before paragraph (a);
(z.8) the portion of subsection 102(1) before paragraph (a);
(z.9) the portion of subsection 103(2) before paragraph (a);
(z.10) paragraph 103(2)(b);
(z.11) the portion of subsection 103(4) before paragraph (a);
(z.12) subparagraph 103(4)(b)(ii);
(z.13) subsection 104(5);
(z.14) subsection 108(3);
(z.15) section 109;
(z.16) subsection 120(1);
(z.17) section 121;
(z.18) subparagraph 122(1)(b)(ii);
(z.19) subsections 123(1) to (3);
(z.20) section 131;
(z.21) section 135;
(z.22) in Part I of the schedule,
(i) section 49, and
(ii) section 86;
(z.23) the portion of section 2 of Part II of the schedule before paragraph (a); and
(z.24) the portion of section 3 of Part III of the schedule before paragraph (a).
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64. The Rules are amended by replacing the word "petition" and the word "petitions" with the words "bankruptcy application" and "bankruptcy applications", respectively, in the following provisions:
(a) subsection 9(2);
(b) section 69;
(c) in Part I of the schedule,
(i) sections 1 and 2,
(ii) section 12,
(iii) section 21,
(iv) section 34,
(v) section 40,
(vi) section 53,
(vii) section 55,
(viii) paragraph 73(b), and
(ix) paragraph 84(a).
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65. The English version of the Rules is amended by replacing the word "forthwith" with the word "immediately" wherever it occurs in the following provisions:
(a) section 106; and
(b) section 127.
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66. The schedule to the French version of the Rules is amended by replacing the decimal point with a comma wherever it occurs in the following provisions:
(a) sections 1 to 84 of Part I; and
(b) paragraphs 2(l) to (n) of Part III.
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67. Part 1 of the schedule to the Rules is amended by replacing the word "solicitor" with the words "barrister or solicitor or, in the Province of Quebec, advocate" in the following provisions:
(a) section 35; and
(b) section 51.
Coming into Force
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68. These Rules come into force on the day on which they are registered.
Regulatory Impact Analysis Statement
(This statement is not part of the Rules.)
Description
Canada is a bijural country in which both common law and civil law systems exist. The common law system operates at the federal, provincial and territorial levels, with the exception of the Province of Quebec where the civil law system operates in private law matters. Given this duality, some legal concepts and terminology that are expressed in common law do not exist in civil law and vice versa. In 1993, the federal government introduced the Program to Harmonize Federal Legislation with the Civil Law of the Province of Quebec. This program is aimed at coordinating the terms and concepts expressed in federal legislation with the terms and concepts expressed in the Civil Code of Quebec (S.Q., 1991, c. 64), and ensuring that each language version takes into account the common law and the civil law. One particular area for consideration was that of property and civil rights, which, under the Constitution Act, 1867, falls under provincial jurisdiction, except where exclusively assigned to federal Parliament, such as bankruptcy and insolvency matters.
On December 15, 2004, the Federal Law – Civil Law Harmonization Act, No. 2 (S.C., 2004, c. 25) came into force. This Act amended the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) with a view to ensuring that it accurately expresses both civil law and common law concepts and terminology in both the French and English versions. These technical amendments include addressing problems with expressions that do not have a precise equivalent term in Quebec civil law or whose meaning is ambiguous; inadequacies between the language of federal legislation and that of civil law; terminology that reflects civil law in one version and common law in the other; and, concepts and terminology expressed exclusively using common law vocabulary. For example, all references to a "receiving order" in English or "ordonnance de séquestre" in French are more properly rendered as "bankruptcy order" in English and "ordonnance de faillite" in French. In addition, the concept of real property now includes that of "immovables," and the concept of personal property now includes that of "movables." Also, the terms "landlord" and "tenant" have been changed to "lessee" and "lessor" respectively.
Purpose of the Amendments
The harmonization of federal legislation with the Quebec civil law facilitates the administration of federal law in the Province of Quebec by making it easier to understand and interpret by those who must apply it.
As a result of the amendments brought to the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3), similar technical amendments are proposed for the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368) in order to ensure that their wording is consistent with that of the enabling legislation.
Alternatives
Since technical amendments were brought to the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3), the same amendments must be brought to the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368) in order to ensure that they are consistent with the enabling legislation. Thus, no alternative exists but to bring into effect the amendments to the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368).
Benefits and Costs
The benefit of the amendments is that they will allow for the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368) to be compatible and in accordance with the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3). In addition, they will address problems with the language in French and English to reflect more accurately both common law and civil law concepts. In this manner, the amendments will facilitate the use of the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) in the Province of Quebec.
With respect to costs, the adoption of the technical amendments will have no significant monetary impact. The nature of the these amendments is purely administrative. They do not add any new obligation or restriction.
Consultation
The proposed amendments to the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368) stem from the coming into force of the Federal Law – Civil Law Harmonization Act, No. 2 (S.C., 2004, c. 25), for which consultations were held. No additional consultations have been held for the proposed amendments to the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368) given that they are the direct result of legislative changes of a technical nature already made to the enabling legislation. The amendments will address problems with certain terminology so that they accurately express both common law and civil law concepts, and they will have no particular impact on the way the stakeholders function.
Compliance and Enforcement
No new mechanisms for compliance and enforcement are required because the amendments do not impose any new restrictions nor do they entail any changes to the rights and obligations set out in the Bankruptcy and Insolvency Act (R.S.C., 1985, c. B-3) and the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368). Rather, the amendments clarify terminology and concepts in the Bankruptcy and Insolvency General Rules (C.R.C., 1978, c. 368) so that they accurately express both common law and civil law concepts.
Contact
Ms. Sheila Robin, MBA
Senior Analyst
Office of the Superintendent of Bankruptcy
Industry Canada
Jean Edmonds Tower South, 8th Floor
365 Laurier Avenue West
Ottawa, Ontario
K1A 0C8
Telephone: 613-948-5006
FAX: 613-948-4080
E-mail: robin.sheila@ic.gc.ca
Footnote a S.C. 1992, c. 27, s. 2
Footnote 1 C.R.C., c. 368; SOR/98-240
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Bankruptcy
