| 1992, c. 27, s.
39(1)
|
(2) Paragraph 87(2)(b) of the Act is
replaced by the following:
|
|
|
|
|
|
| Application
|
(3) Subsection (1) applies to bankruptcies
or proposals in respect of which
proceedings are commenced after that
subsection comes into force.
|
|
| 1992, c. 27, s.
40(F)
|
75. Subsections 91(1) and (2) of the Act
are replaced by the following:
|
|
| Certain
settlements
void
|
91. (1) Any settlement of property made
within the period beginning on the day that is
one year before the date of the initial
bankruptcy event in respect of the settlor and
ending on the date that the settlor became
bankrupt, both dates included, is void against
the trustee.
|
|
| If bankrupt
within five
years
|
(2) Any settlement of property made within
the period beginning on the day that is five
years before the date of the initial bankruptcy
event in respect of the settlor and ending on the
date that the settlor became bankrupt, both
dates included, is void against the trustee if the
trustee can prove that the settlor was, at the
time of making the settlement, unable to pay
all the settlor's debts without the aid of the
property comprised in the settlement or that
the interest of the settlor in the property did not
pass on the execution thereof.
|
|
| R.S., c. 31 (1st
Supp.), s. 71
|
76. Section 92 of the Act is replaced by the
following:
|
|
| Certain
marriage
contracts void
as against
trustee
|
92. Any covenant or contract made by any
person, hereinafter called ``the settlor'', in
consideration of the settlor's marriage, either
for the future payment of money for the
benefit of the settlor's spouse or children, or
for the future settlement on or for the settlor's
spouse or children, of property wherein the
settlor had not at the date of the marriage any
estate or interest, whether vested or
contingent, in possession or remainder, and
not being money or property in right of the
settlor's spouse is, if the settlor becomes
bankrupt and the covenant or contract has not
been executed at the date of the initial
bankruptcy event in respect of the settlor, void
against the trustee except so far as it enables
the persons entitled under the covenant or
contract to claim a dividend in the settlor's
bankruptcy proceedings under or in respect of
the covenant or contract, but any such claim to
a dividend shall be postponed until all claims
of the other creditors have been satisfied.
|
|
|
|
77. (1) Paragraph 93(1)(a) of the Act is
replaced by the following:
|
|
|
|
|
|
|
|
(2) Subsection 93(2) of the Act is replaced
by the following:
|
|
| If declared
void
|
(2) Where any payment or transfer
mentioned in subsection (1) is declared void,
the persons to whom it was made are entitled
to claim for dividend under or in respect of the
covenant or contract in like manner as if it had
not been executed at the date of the initial
bankruptcy event.
|
|
|
|
78. (1) Subsection 95(1) of the Act is
replaced by the following:
|
|
| Avoidance of
preference in
certain cases
|
95. (1) Every conveyance or transfer of
property or charge thereon made, every
payment made, every obligation incurred and
every judicial proceeding taken or suffered by
any insolvent person in favour of any creditor
or of any person in trust for any creditor with
a view to giving that creditor a preference over
the other creditors is, where it is made,
incurred, taken or suffered within the period
beginning on the day that is three months
before the date of the initial bankruptcy event
and ending on the date the insolvent person
became bankrupt, both dates included,
deemed fraudulent and void as against the
trustee in the bankruptcy.
|
|
|
|
(2) Subsection 95(3) of the Act is replaced
by the following:
|
|
| Exception
|
(2.1) Subsection (2) does not apply in
respect of a margin deposit made by a clearing
member with a clearing house.
|
|
| Definitions
|
(3) In this section,
|
|
| ``clearing
house'' « chambre de compensa- tion »
|
``clearing house'' means a body that acts as an
intermediary for its clearing members in
effecting securities transactions;
|
|
| ``clearing
member'' « membre »
|
``clearing member'' means a person engaged
in the business of effecting securities
transactions who uses a clearing house as
intermediary;
|
|
| ``creditor'' « créancier »
|
``creditor'' includes a surety or guarantor for
the debt due to the creditor;
|
|
| ``margin
deposit'' « dépôt de couverture »
|
``margin deposit'' means a payment, deposit
or transfer to a clearing house under the
rules of the clearing house to assure the
performance of the obligations of a clearing
member in connection with security
transactions, including, without limiting
the generality of the foregoing, transactions
respecting futures, options or other
derivatives or to fulfil any of those
obligations.
|
|
| Application
|
(3) Subsection (2) applies to bankruptcies
in respect of which proceedings are
commenced after that subsection comes
into force.
|
|
|
|
79. Section 96 of the Act is replaced by the
following:
|
|
| Extended
period
|
96. Where the conveyance, transfer, charge,
payment, obligation or judicial proceeding
mentioned in section 95 is in favour of a
person related to the insolvent person, the
period referred to in subsection 95(1) shall be
one year instead of three months.
|
|
| 1992, c. 27, s.
41
|
80. Subsection 97(1) of the Act is replaced
by the following:
|
|
| Protected
transactions
|
97. (1) No payment, delivery, conveyance,
transfer, contract, dealing or transaction to, by
or with a bankrupt made between the date of
the initial bankruptcy event and the date of the
bankruptcy is valid, except the following,
which are valid if made in good faith, subject
to the foregoing provisions of this Act with
respect to the effect of bankruptcy on an
execution, attachment or other process against
property, and subject to the provisions of this
Act respecting settlements, preferences and
reviewable transactions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
81. Subsection 100(1) of the Act is
replaced by the following:
|
|
| Examination
of
consideration
in a
reviewable
transaction
|
100. (1) Where a bankrupt sold, purchased,
leased, hired, supplied or received property or
services in a reviewable transaction within the
period beginning on the day that is one year
before the date of the initial bankruptcy event
and ending on the date of the bankruptcy, both
dates included, the court may, on the
application of the trustee, inquire into whether
the bankrupt gave or received, as the case may
be, fair market value in consideration for the
property or services concerned in the
transaction.
|
|
|
|
82. (1) Subsections 101(1) to (3) of the Act
are replaced by the following:
|
|
| Inquiry into
dividends and
redemptions
of shares
|
101. (1) Where a corporation that is
bankrupt has paid a dividend, other than a
stock dividend, or redeemed or purchased for
cancellation any of the shares of the capital
stock of the corporation within the period
beginning on the day that is one year before
the date of the initial bankruptcy event and
ending on the date of the bankruptcy, both
dates included, the court may, on the
application of the trustee, inquire into the
transaction to ascertain whether it occurred at
a time when the corporation was insolvent or
whether it rendered the corporation insolvent.
|
|
| Judgment
against
directors
|
(2) Where a transaction referred to in
subsection (1) has occurred, the court may
give judgment to the trustee against the
directors of the corporation, jointly and
severally, in the amount of the dividend or
redemption or purchase price, with interest
thereon, that has not been paid to the
corporation where the court finds that
|
|
|
|
|
|
|
|
|
|
| Criteria
|
(2.1) In making a determination under
paragraph (2)(b), the court shall consider
whether the directors acted as prudent and
diligent persons would have acted in the same
circumstances and whether the directors in
good faith relied on
|
|
|
|
|
|
|
|
|
|
| Judgment
against
shareholders
|
(2.2) Where a transaction referred to in
subsection (1) has occurred and the court
makes a finding referred to in paragraph
(2)(a), the court may give judgment to the
trustee against a shareholder who is related to
one or more directors or to the corporation or
who is a director not liable by reason of
paragraph (2)(b) or subsection (3), in the
amount of the dividend or redemption or
purchase price referred to in subsection (1)
and the interest thereon, that was received by
the shareholder and not repaid to the
corporation.
|
|
| Directors
exonerated by
law
|
(3) A judgment pursuant to subsection (2)
shall not be entered against or be binding on a
director who had, in accordance with any
applicable law governing the operation of the
corporation, protested against the payment of
the dividend or the redemption or purchase for
cancellation of the shares of the capital stock
of the corporation and had thereby exonerated
himself or herself under that law from any
liability therefor.
|
|
|
|
(2) Subsection 101(5) of the Act is
replaced by the following:
|
|
| Onus of
proof -
directors
|
(5) For the purposes of subsection (2), the
onus of proving
|
|
|
|
|
|
|
|
|
|
|
|
lies on the directors.
|
|
| Onus of
proof -
shareholder
|
(6) For the purposes of subsection (2.2), the
onus of proving that the corporation was not
insolvent at the time the transaction occurred
and that the transaction did not render the
corporation insolvent lies on the shareholder.
|
|
| Application
|
(3) Subsection (1) or (2) applies to
bankruptcies or proposals in respect of
which proceedings are commenced after
that subsection comes into force.
|
|
| 1992, c. 27, s.
42(1)
|
83. Section 101.2 of the Act is replaced by
the following:
|
|
| Provisions to
apply
|
101.2 Sections 91 to 101 apply as though
the debtor became bankrupt on the date of the
initial bankruptcy event where the proposal is
annulled either by the court pursuant to
subsection 63(1) or as a result of a receiving
order or assignment.
|
|
| 1992, c. 27, s.
43(1)
|
84. (1) Subsection 102(1) of the Act is
replaced by the following:
|
|
| First meeting
of creditors
|
102. (1) Subject to subsection (1.1), it is the
duty of the trustee to inquire as to the names
and addresses of the creditors of a bankrupt
and, within five days after the date of the
trustee's appointment, to send in the
prescribed manner to the bankrupt, to every
known creditor and to the Superintendent a
notice in the prescribed form of the
bankruptcy and of the first meeting of
creditors, to be held within the twenty-one day
period following the day of the trustee's
appointment, at the office of the official
receiver in the locality of the bankrupt, but the
official receiver may, when the official
receiver deems it expedient, authorize the
meeting to be held at the office of any other
official receiver or at such other place as the
official receiver may fix.
|
|
|
|
(2) Subsection 102(4) of the Act is
replaced by the following:
|
|
| Information
and notice
|
(3) In the case of the bankruptcy of an
individual, the trustee shall
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Publication in
local paper by
trustee
|
(4) A notice in the prescribed form shall, as
soon as possible after the bankruptcy and not
later than five days before the first meeting of
creditors, be published in a local newspaper by
the trustee.
|
|
| Application
|
(3) Subsection (1) or (2) applies to
bankruptcies in respect of which
proceedings are commenced after that
subsection comes into force.
|
|
|
|
85. Subsection 104(1) of the Act is
replaced by the following:
|
|
| Notice of
subsequent
meetings
|
104. (1) Meetings of creditors other than the
first shall be called by sending a notice of the
time and place thereof not less than five days
before the time of each meeting to each
creditor at the address given in the creditor's
proof of claim.
|
|
| 1992, c. 27, s.
46(2)
|
86. Subsection 109(6) of the Act is
replaced by the following:
|
|
| Creditor not
dealing at
arm's length
|
(6) Except as otherwise provided by this
Act, a creditor is not entitled to vote at any
meeting of creditors if the creditor did not, at
all times within the period beginning on the
day that is one year before the date of the
initial bankruptcy event in respect of the
debtor and ending on the date of the
bankruptcy, both dates included, deal with the
debtor at arm's length.
|
|
|
|
87. (1) Subsection 121(2) of the Act is
replaced by the following:
|
|
| Contingent
and
unliquidated
claims
|
(2) The determination whether a contingent
or unliquidated claim is a provable claim and
the valuation of such a claim shall be made in
accordance with section 135.
|
|
|
|
(2) Section 121 of the Act is amended by
adding the following after subsection (3):
|
|
| Family
support claims
|
(4) A claim in respect of a debt or liability
referred to in paragraph 178(1)(b) or (c)
payable under an order or agreement made
before the date of the initial bankruptcy event
in respect of the bankrupt and at a time when
the spouse or child was living apart from the
bankrupt, whether the order or agreement
provides for periodic amounts or lump sum
amounts, is a claim provable under this Act.
|
|
| Application
|
(3) Subsection (1) or (2) applies to
bankruptcies or proposals in respect of
which proceedings are commenced after
that subsection comes into force.
|
|
|
|
88. Subsection 126(2) of the Act is
replaced by the following:
|
|
| Worker's
wage claims
|
(2) Proofs of claims for wages of workers
and others employed by the bankrupt may be
made in one proof by the bankrupt or someone
on behalf of the bankrupt or by a
representative of a federal or provincial
ministry responsible for labour matters or a
representative of a union representing workers
and others employed by the bankrupt, by
attaching thereto a schedule setting out the
names and addresses of the workers and others
and the amounts severally due to them, but
that proof does not disentitle any worker or
other wage-earner to file a separate proof on
their own behalf.
|
|
|
|
89. (1) Section 135 of the Act is amended
by adding the following after subsection (1):
|
|
| Determi- nation of provable claims
|
(1.1) The trustee shall determine whether
any contingent claim or unliquidated claim is
a provable claim, and, if a provable claim, the
trustee shall value it, and the claim is
thereafter, subject to this section, deemed a
proved claim to the amount of its valuation.
|
|
| 1992, c. 27, s.
53
|
(2) Subsections 135(3) and (4) of the Act
are replaced by the following:
|
|
| Notice of
determi- nation or disallowance
|
(3) Where the trustee makes a
determination under subsection (1.1) or,
pursuant to subsection (2), disallows, in whole
or in part, any claim, any right to a priority or
any security, the trustee shall forthwith
provide, in the prescribed manner, to the
person whose claim was subject to a
determination under subsection (1.1) or whose
claim, right to a priority or security was
disallowed under subsection (2), a notice in
the prescribed form setting out the reasons for
the determination or disallowance.
|
|
| Determi- nation or disallowance final and conclusive
|
(4) A determination under subsection (1.1)
or a disallowance referred to in subsection (2)
is final and conclusive unless, within a thirty
day period after the service of the notice
referred to in subsection (3) or such further
time as the court may on application made
within that period allow, the person to whom
the notice was provided appeals from the
trustee's decision to the court in accordance
with the General Rules.
|
|
| Application
|
(3) Subsection (1) or (2) applies to
bankruptcies or proposals in respect of
which proceedings are commenced after
that subsection comes into force.
|
|
|
|
90. (1) Subparagraphs 136(1)(b)(i) and
(ii) of the Act are replaced by the following:
|
|