But when it is, the cases tend to be spectacular, as in the case of the failure of Confed eration Life in 1994: R. McQueen, Who killed Confederation Life Toronto, McClelland & Stewart, 1996.
In addition, a Farm Debt Mediation Act of 1998 replaced the 1986 Farm Debt Review Act. Both are specialized versions of personal rather than corporate bankruptcy arrange ments.
case an insolvent debtor company may make an assignment of all its property to an Official Receiver or may make a proposal to its creditors for a restructuring of debt. Creditors also have the right to petition the Court for a receiving order which, assuming the debt involved exceeds $1,000 and the debtor has committed one or more acts of bankruptcy, will normally be granted, putting the debtor company into bankruptcy.
In either case the Official Receiver, who is an officer of the Court, chairs the first meeting of the creditors. In the case of a proposal, the debtor engages a trustee to perform the day to day administration of the bankrupt estate; in the case of an assignment, the creditors select the trustee. In the latter case, the trustee thereafter has complete control and administration of the assets, subject to oversight from the Court, the Superintendent, and the inspector(s) appointed by the creditors at their first meeting. The directors and the management of the insolvent firm have no discretion and may in fact be unemployed, although with the approval of the inspectors, some or all of the former managers may be retained to assist with the administration of the firm or other pro ceedings in bankruptcy.
In the case of a proposal, the debtor remains in control of its assets under the supervision of a trustee. Ultimately, the debtor must within six months obtain creditor and Court approval of its proposal.
Since the first step into bankruptcy entrains such serious conse quences, it is not taken lightly; nor is it easy for a creditor to act on some technical breach to throw out management and seize the assets.
The Court must be satisfied, on evidence and with the ability of the im pugned debtor to contest the petition, that one or more of the ten acts of bankruptcy enumerated in section 42 of the BIA (see Annex A) have occurred within the six months preceding the filing of the petition. The judge, the Registrar of the Court, the Official Receiver and the Superin tendent all remain seized of the issue until final disposition.
Trustees. The key player is the trustee. Private professionals li censed and regulated by the federal government through the Superin tendent of Bankruptcy, trustees are usually chartered accountants; in any case they must pass rigourous examinations and keep up to date with changes in law and practice. They must avoid conflicts of interest and abide by ethical rules established by the Superintendent217. As the powers of the trustee (Annex B) are considerable and must usually be exercised under emergency conditions, high standards of training, ex perience, supervision and public reporting are important. The inspec tors appointed by the creditors function as a special kind of board of directors and many of the actions of the trustee are subject to their ap proval. The Court remains available to resolve disputes.
The trustee is responsible for making a list of all creditors, taking control of the business and all its books and assets, deciding (with the approval of the inspectors) whether liquidation or sale as a going con cern will yield best value, realizing that value, and paying the proceeds, less his fees, to the creditors according to the rights of precedence es tablished in the Act. The procedures to be followed, right down to the forms to be used, are specified in considerable detail in the Act and elaborated in the Superintendent’s Directives, which like regulations have the force of subordinate law. The trustee’s multiple roles – admin istrator, creditors’ agent, advisor and counselor to debtor – can cause conflict and must be managed scrupulously218.
The Superintendent of Bankruptcy. This official is a federal civil ser vant. A senior officer in the Industry department, he or she is subordi nated to the Minister and Deputy Minister only in regard to resources and routine administrative matters and not in respect of the matters of his office. This arm’s length relation with the political system is shared with other officials of that Department who are named in statute, such as the Commissioner of Competition, the Commissioner of Patents, and the Director under the CBCA. The Superintendent’s colleagues and su periors are not entitled to know information about bankrupts that is not part of the public record and a breach of that confidentiality would sub ject the Superintendent to disciplinary action up to and including dis missal. Only in cases where the Superintendent’s actions are impugned Canada, Office of the Superintendent of Bankruptcy, “Code of ethics for trustees in bankruptcy,” Ottawa, 2000; on website at http://osb bsf.ic.gc.ca.
I. Ramsay, “Market imperatives, professional discretion and the role of intermediaries in personal bankruptcy: a comparative study of the Canadian trustee in bankruptcy,” Am.
Bankr. Law J., 74:4(2000): 399–460. Ramsay’s study focuses on personal bankruptcy, where arguably the possibility of conflict is more acute.
does the Minister become involved, and then by convention only through a distinguished proxy219.
The Superintendent oversees the administration of all estates and matters to which the BIA applies. He does this by establishing standards for the licensing of trustees and by licensing them following examina tion, by requiring bonds from them as surety for the faithful fulfillment of their duties, by publishing Directives (including a code of ethical con duct) and information memoranda for the guidance of trustees, by in tervening in Court on administrative matters on his own motion, and by keeping and publishing records. Matters of record include complaints against trustees, proposals, bankruptcies, licenses, and notices sent to receivers. Since 1992 he has had a limited mandate to keep records regarding reorganizations under CCAA, but this is a relatively undevel oped area. The costs of the Superintendent’s office are partly recov ered by a levy on trustees’ distributions to creditors.
Receivers. In the Canadian law of secured transactions, the major remedy given to secured creditors is to provide that on default, a re ceiver may be appointed to immediately take possession of the collat eral and either operate or liquidate the business for the benefit of the security holder. This technique is known in Canada as a “receivership”.
Such situations may be unrelated to bankruptcy, may precede it, or may become an incident in it. Receivers are private professionals hired by the creditor to realize on security. They are almost always but not necessarily qualified as trustees in bankruptcy.
The Companies’ Creditors Arrangements Act. Unlike the BIA with its carefully choreographed, time limited steps, CCAA is quite open ended. Action under the CCAA commences with a Court application by the debtor company, and relief is in the discretion of the judge. Thereaf ter, control of the proceedings is entirely in the hands of the judge. The Act provides relatively little in terms of procedural guidance, with the result that judges have wide latitude to fashion procedures, actions and remedies that fit the case in hand. This flexibility is generally believed by In a 1993 case, for example, a trustee was found by the Superintendent to have falsified records and stolen money from a bankrupt’s assets. The trustee was dismissed and his license to practice revoked. Following his suicide, the widow claimed compensation for lost income. In such cases the appeal lies directly with the minister, who invariably ap points, on advice, a senior administrative law judge, usually retired, to hear the appeal and make a decision on his behalf.
the business community and its professional advisors to be useful, es pecially in the case of large and complex bankruptcies. Since 1997, ac cess to procedures under the Act has been limited to insolvencies where the assets involved exceed $5 million.
Canada does not have a specialized bankruptcy court, but it does have some judges who have become expert in these proceedings. In Ontario, under the leadership of Mr. Justice James Farley, a subset of provincial court judges known as the Commercial List have come to handle most CCAA cases220. There is a debate in the literature about how much a judge can be expected to know of the affairs of a given company in a complicated industry and whether a specialized court is a good thing or not221. Under the BIA the trustee is advised by a creditors’ committee made up of creditors’ representatives known as inspectors.
The trustee may engage members of the former management for day to day administration, thus easing the expertise problem. Under CCAA, a wise judge makes the parties do most of the work while requiring the debtor through a court appointed monitor to provide the court and all other parties with the voluminous information that alone can lead to wise choices. This aggressive involvement of the bench in requiring the production of information, even to the extent of intervening on its own behalf, is one striking difference from the US Chapter 11 process, where the judge must be at pains to keep a distance from the proceed ings and the players and act only on the motion of one of the parties222.
Reorganization proposals. A company in or approaching insolvency may opt for reorganization rather than liquidation. It may proceed either under Part III of the BIA or, if liabilities exceed $5 million, under CCAA. In Farley J. is in charge of the current headline making case of Air Canada. His style is to move rapidly, setting aggressive deadlines for parties to settle specific issues and report them to the court for approval. In this way the expert and involved parties hammer out the details, relieving the bench of all but procedural and final decision making. Recently law yers for contending groups of Air Canada pilots were startled to be ordered to complete their negotiation by midnight on a Saturday and report the results in court on Sunday morning.
Davis, op. cit. 21. An interesting comparison of Canadian versus Chapter 11 proce dures suggests that Canadian reorganizations are swifter, cheaper, and more likely to be consummated: T.C.G. Fisher and J. Martel, “Should we abolish Chapter 11 Evidence from Canada,” J. Legal Stud, 28(1999): 233–257.
D.G. Baird and E.R. Morrison, “Bankruptcy decision making,” J. Law, Econ & Org., 17:2(2001): 356–72; see also Davis, op. cit.
either case, the distressed company makes a proposal to its creditors, who then decide whether or not to support it. A stay of proceedings by unsecured debtors normally follows while the restructuring takes place.
At the end of the process it is expected that the company will continue under different ownership, and probably different management. The processes differ in detail, however.
BIA proposals. Under the BIA, reorganization starts with a filing in provincial court by an insolvent company of either a proposed compro mise or rearrangement of creditors’ claims, or, since fully fledged “pre packaged” proposals occur only in simple cases, a notice of intention to file such a proposal. The notice of intention includes the name of the trustee who has agreed to serve and the names of all creditors owed more than $250 and the amounts owed. Copies of the filing must be delivered to all known creditors within 5 days, followed within 10 days of the original filing of a cash flow statement attested to by the trustee.
There is an automatic stay of proceedings by all creditors including se cured creditors for 30 days, although unsecured creditors can petition for abridgment on the grounds that no proposal could gain support.
The stay of legal proceedings is critical. Without it, uncoordinated “sauve qui peut” actions by creditors will consume all executive time, leaving no resources for managing the business or putting together a proposal or plan of arrangement. But such a large interference with the rights, obligations and expectations under normal contracts must be carefully hedged and time constrained. Under the BIA a 30 day stay is automatic. Thereafter, if the Court is satisfied that the debtor is working in good faith toward a viable proposal that will not materially prejudice the rights of secured lenders, three further stays of 45 days each may be granted. As the BIA has no super priority for debtor in possession financing, the debtor must finance operations from cash flow, from pledges of unsecured assets, or by using secured assets. Under the circumstances the Courts will interpret “material prejudice” to secured interests with a degree of liberality. However, “a secured creditor whose collateral is being consumed without being replaced will be well positioned to demand an end to the stay of proceedings”223.
Once a proposal is filed, the trustee calls a meeting of creditors within 21 days, during which the stay remains in place. Each class of Dunphy, op. cit, §12.04.
creditor votes separately, and it takes two thirds in value and half in number of the creditors in a class for the proposal to bind that class.
The Court is asked to approve the proposal but will refuse to do so if the terms are unreasonable, if the debtor has committed specific offences enumerated in Sections 198–200 of the Act (bankruptcy offences, fail ure to disclose the fact of being undischarged, failing to keep proper books of account), or if no super priority has been provided for Crown claims, certain wage and landlord lease payments, and trustee fees. If the proposal is rejected by the creditors, or if there has been any fraud or default by the debtor, the proposal fails and the debtor is deemed to have made an assignment in bankruptcy. Liquidation follows.
A successful proposal must be fully performed. Once that happens, the trustee so certifies to the debtor and the Official Receiver and an application for discharge follows. Assuming good behaviour of the bankrupt during the period of the reorganization, the Court will grant discharge.