Directive No. 8R6
Coming into force September 18, 2009

Bankruptcy and Insolvency Act Forms

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Issued: August 14, 2009

The Office of the Superintendent of Bankruptcy (OSB) has amended several forms as a result of two initiatives. The first initiative is a comprehensive legislative and regulatory reform package that requires corresponding amendments to directives and forms in order to be consistent with the enabling legislation. The second initiative is the modernizing of the Superintendent's Directives.

Legislative Reform

In 2005, a comprehensive insolvency reform package was introduced in Parliament to modernize the Bankruptcy and Insolvency Act (BIA) and the Companies' Creditors Arrangement Act (CCAA), as well as to create the legislative framework for the Wage Earner Protection Program (WEPP). The Bill received Royal Assent on November 25, 2005, thereby becoming Chapter 47 of the Statutes of Canada, 2005 (Chapter 47). Certain technical amendments to Chapter 47 were required before it could be brought into force. Those technical amendments were contained in Bill C-12, An Act to amend the Bankruptcy and Insolvency Act, the Companies' Creditors Arrangement Act, the Wage Earner Protection Program Act and chapter 47 of the Statutes of Canada, 2005. Bill C-12 received Royal Assent on December 14, 2007, thereby becoming Chapter 36 of the Statutes of Canada, 2007. As a result of the legislative reform, the Bankruptcy and Insolvency General Rules (Rules) were amended and new Rules were also created.

Therefore, in order to give effect to the new provisions in the BIA and to the Rules, several forms have been amended to ensure that they are consistent with the enabling legislation and regulation.

Modernization of the Directives

Several forms were amended or revoked in order to streamline some of the administrative steps in an insolvency file with a view to eliminating unnecessary administrative requirements and information obligations. Therefore, the amendments brought to these forms will enhance their practical application.

Please find attached a copy of Directive No. 8R6, Bankruptcy and Insolvency Act Forms. Appendix A of the Directive contains a list of new forms. Appendix B lists forms that are revoked. Appendix C lists amended forms.

Overall, these amendments to the forms will provide certainty and clarity for stakeholders with respect to recent amendments to insolvency legislation by standardizing the information to be provided. They will also streamline the administrative burden, particularly for trustees in bankruptcy.

Summary of Key Changes

  1. New Forms

    As a result of the legislative amendments, new forms were created.

    1. Disclaimer of Agreements
      Form 44.1, Notice by Debtor to Disclaim or Resiliate an Agreement, stems from amendments to the BIA that now allow debtors who file a proposal to be freed from unwanted and burdensome agreements that make up part of the financial distress. Debtors are entitled to unilaterally terminate agreements, subject to specific limitations. This new form is the notice that debtors must give to the trustee and party(ies) to the agreement if they intend to disclaim or resiliate an agreement.
    2. Consumer Proposal — Annulment and Revival
      Six new forms (Forms 54.2, 55.1, 93, 94, 95 and 96) were created as a result of the new provisions in the BIA by which a consumer proposal is deemed to be annulled and the process by which it can be revived. The amendment to the legislation provides the administrator with the discretion to revive a consumer proposal that has been deemed annulled. In fact, prior to the legislative change, there was no way to revive a consumer proposal that was in default. Once the consumer proposal was in default, the administrator and the Courts had no flexibility, and the consumer proposal was deemed annulled. Defaults in the agreement could only be remedied by a Court Order made prior to the deemed annulment by way of an amendment to the proposal previously agreed to by the creditors. The new section of the BIA will allow an administrator to rectify the default by providing notice to the creditors. This will be especially beneficial in situations where the debtor faces a temporary problem meeting payments, for example, due to illness or temporary unemployment, but otherwise is making good-faith efforts to comply with the terms of the proposal.
  2. Amended Forms
    1. Standardization, Modernization and Streamlining
      Several forms were amended to streamline some of the administrative steps in an insolvency file, eliminate unnecessary administrative requirements and respect the recent amendments to insolvency legislation.

      Minors changes were made to Forms 2, 3, 15, 17, 19, 20, 20.1, 35, 39, 42, 43, 44, 48, 55, 56, 60, 61, 62, 67, 70 and 80. The amendments include cross-referencing changes as well as changes to wording in order to reflect the wording of the new legislation.

      Also, certain forms were modified and merged in order to eliminate unnecessary administrative obligations. Also, in keeping with the Paperwork Burden Reduction Initiative, certain forms were modified and merged in order to eliminate unnecessary administrative obligations. Consequently, several forms were combined into one new form: Form 22 has been combined into Form 21, Forms 27 and 28 have been combined into Form 26, Form 57 has been combined into Form 46 and Form 85 has been combined into Form 84.

      Furthermore, in order to standardize the information provided in the forms, note that the text field in Forms 12, 13 and 14, pertaining to the "status of the bankrupt's discharge/status of proposal," has been replaced by check boxes. This will eliminate any discrepancies when reporting on this matter.

      Finally, minor amendments have been made to Forms 29 and 30. The cash-flow statement will now be applicable to both a corporate body or an individual.

    2. Unremitted Pension Contributions
      Form 31, "Proof of Claim," was amended to support new provisions in the BIA (sections 81.5 and 81.6) that create a super-priority for claims related to unremitted pension contributions outstanding when an employer becomes bankrupt or is subject to a receivership.
    3. Moneys Disbursed by the Trustee for Services Provided by Persons Related to the Trustee
      The amendment to subsection 152(1) of the BIA creates an obligation for the trustee to explicitly describe moneys disbursed to related parties. The intention behind the legislative amendment is to attempt to restrict any potential conflicts of interest caused by related-party transactions by requiring such transactions to be brought to the attention of all interested parties. Therefore, the trustee's Statement of Receipts and Disbursements (Forms 12, 13 and 14) now contains a section to disclose all moneys disbursed by the trustee for services provided by a related person.
    4. Examination of Bankrupts or Debtors
      Section 66 of the BIA states that all provisions of the Act apply to Division I Proposals even where the provision only expressly speaks to bankruptcy situations. The legislative reform clarifies how the General Rule of section 66 applies in specific circumstances relating to proposals. In fact, subsection 66(1.3) of the BIA specifies that a debtor who files a proposal (or a notice of intention) can now be examined under oath by the official receiver. Therefore, Forms 24 and 25, Notice of Examination Before the Official Receiver, as well as Form 26, Questions to be put to the Bankrupt/Debtor or Officer of the Corporation (or Designated Person) by the Official Receiver, have been amended to apply to Division I Proposals. Please note that in accordance with sections 66.4(1) of the BIA, an official receiver may examine under oath a debtor who filed a consumer proposal.
    5. Discharge of Bankrupts
      The legislative amendments made to section 168.1 of the BIA specify the circumstances in which a first-time bankrupt is eligible for an automatic discharge, taking into consideration whether the bankrupt is required to make surplus income payments. If surplus income payments are required, the BIA specifies the length of time for which the bankrupt must make these payments, thereby increasing the money available to creditors. In addition, eligibility for an automatic discharge is now available to second-time bankrupts under certain circumstances. Second-time bankrupts with surplus income will have to make payments for a longer time period as set out in the legislation. The expansion of accessibility to an automatic discharge streamlines the bankruptcy process by eliminating the need for a Court appearance in certain cases. Bankrupts who have been bankrupt one time before must wait longer before becoming eligible for an automatic discharge and must make surplus income payments for a longer period.
    6. Consequently, Form 68, Notice of Impending Automatic Discharge of Bankrupt, and Form 69, Notice of Bankruptcy and of Impending Automatic Discharge of Bankrupt, and Request of a First Meeting of Creditors, have been modified in order to apply to second-time bankrupts. Note that the legislative reform maintains the trustee’s duty to notify the Superintendent, the bankrupt and every creditor who has proved a claim of the bankrupt’s automatic discharge. This notice must still be provided not less than 15 days before the date that the bankrupt’s automatic discharge will take effect.
    7. Also, Form 84, Certificate of Discharge, has been amended in order to reflect the new circumstances in which first- and second-time bankrupts are eligible for an automatic discharge. The trustee must issue a certificate of automatic discharge to the discharged bankrupt, with a copy to the Superintendent, confirming that the bankrupt is released from all debts except those referred to in subsection 178(1) of the BIA.
    8. Post-Discharge Payment Agreements
      Section 156.1 of the BIA was amended to allow trustees to enter into voluntary payment agreements with bankrupts who do not have surplus income. Fees payable to the trustee in accordance with such an agreement cannot exceed the amount prescribed in the Rules and payments cannot extend beyond 12 months following discharge. In Form 84, Certificate of Discharge, the trustee must now check a box if he or she and the bankrupt have entered into such an agreement.
    9. Statement of Affairs for Proposals
      The amendments made to subsections 50(2) and 62(1) of the BIA are intended to increase the use of proposals. Establishing clear rules on proposals will better allow debtors to negotiate payment arrangements with creditors, ensuring that the bankruptcy process is fair to all parties involved. In fact, the amendments to these subsections require filing a prescribed form that will bring consistency to the process of filing a proposal. Subsections 50(2) and 62(1) of the BIA now state that a proposal made by an insolvent person must be accompanied by a Statement of Affairs. Furthermore, the amendment to subsection 66.13(2)(d) of the BIA is intended to make it clear that a consumer proposal must also be accompanied by a prescribed Statement of Affairs. Therefore, Forms 78 and 79, Statement of Affairs, have been amended to apply to both proposals and bankruptcies. In addition, since "section D" of Form 79 refers to Form 65 in order to obtain the bankrupt's budget information, amendments were made to Form 65. The monthly income and expense statement (Form 65) will now be applicable to both a bankrupt or a debtor.
    10. Note that Form 23, Preliminary Statement of Affairs, is revoked. Trustees will now use Forms 78 or 79 at the onset of filing and will amend the form if necessary. This amendment was made to reflect current practice.
    11. As well on Form 79, a new question has been added to the section entitled Information Relating to the Affairs of the Bankrupt/Debtor. The bankrupt/debtor must provide information pertaining to the highest level of education completed.
    12. "Section 170 Report"
      The amendment made to subsection 170(1) of the BIA was intended to streamline the administrative process. It will limit the circumstances under which the report must be prepared. The "section 170 report" (Form 82 — Report of Trustee on Bankrupt's Application for Discharge) will only be required when the bankrupt has surplus income, opposition to the bankrupt's discharge has been filed, the bankrupt has been bankrupt on a previous occasion or a Court hearing of the discharge is required. Accordingly, Form 16, Certificate of Compliance and Deemed Discharge of Trustee or Administrator, has been modified. "Section 8" of the form has been removed since the trustee does not have to prepare a "section 170 report" in all circumstances before proceeding to his or her discharge. The requirements for the trustee to file the report are now dealt with in subsection 170(1) of the BIA.
    13. Also, as a result of the legislative amendments, the report prepared under subsection 170(1) of the BIA will no longer include a recommendation from the trustee as to whether or not the bankrupt should be discharged subject to conditions. Therefore, the section pertaining to the recommendation on the bankrupt's discharge has been removed from Form 82.
    14. Furthermore, section 172.1 of the BIA introduces a new procedure for discharging bankrupts with high personal income tax debt. These bankrupts will not be eligible for an automatic discharge and an application to the Court for discharge will be required. Therefore, a question pertaining to high income tax debts has been added to Form 82 under "Section C: Conduct of the Bankrupt."

Coming into Force

This Directive comes into force on the day on which subsection 1(1) of Chapter 36 of the Statutes of Canada, 2007, comes into force. This Directive, applies only to a person who, on or after the day on which subsection 1(1) of Chapter 36 of the Statutes of Canada, 2007, comes into force, is described in one of (a) – (f) listed below:

  1. the person becomes bankrupt;
  2. the person files a notice of intention;
  3. the person files a proposal without having filed a notice of intention;
  4. a proposal is made in respect of the person without the person having filed a notice of intention;
  5. an interim receiver is appointed in respect of the person's property and all or part of the person's property comes into the possession or under the control of the interim receiver; or
  6. all or part of the person's property comes into the possession or under the control of a receiver.

As such, in order to determine whether Directive No. 8R6 applies to a particular insolvency file, the question that needs to be asked is whether one of the "triggering events" described in (a) – (f) occurred on or after the coming into force date.

Enquiries

If you require further information, please do not hesitate to contact the OSB office nearest you.

James Callon
Superintendent of Bankruptcy

The Bankruptcy and Insolvency Act Forms

Issued: August 14, 2009

(This Directive amends Directive No. 8R5 issued on June 25, 2008, on the same topic)

Interpretation

  1. In this Directive,
    • "Act" means the Bankruptcy and Insolvency Act;
    • "Forms" means forms under the Bankruptcy and Insolvency Act;
    • "OSB&" means the Office of the Superintendent of Bankruptcy;
    • "Rules" means the Bankruptcy and Insolvency General Rules.

Authority and Purpose

  1. This Directive is issued pursuant to the authority of paragraphs 5(4)(c) and (e) of the Act for the purpose of prescribing the form of certain documents required by the Act and the information to be given therein.

Summary

  1. This Directive adds, revokes and modifies certain forms as a result of two initiatives: (1) the comprehensive legislative and regulatory amendments to the Act and Rules brought about by Chapter 47 of the Statutes of Canada, 2005, and Chapter 36 of the Statutes of Canada, 2007; and (2) the modernization of the Superintendent's Directives.
  2. Appendix A of this Directive contains the list of new forms.
  3. Appendix B of this Directive contains the list of forms that are revoked.
  4. Appendix C of this Directive contains the list of amended forms.

Coming into Force

  1. This Directive comes into force on the day on which subsection 1(1) of Chapter 36 of the Statutes of Canada, 2007, comes into force. This Directive, applies only to a person who, on or after the day on which subsection 1(1) of Chapter 36 of the Statutes of Canada, 2007, comes into force, is described in one of (a) – (f) listed below:
    1. the person becomes bankrupt;
    2. the person files a notice of intention;
    3. the person files a proposal without having filed a notice of intention;
    4. a proposal is made in respect of the person without the person having filed a notice of intention;
    5. an interim receiver is appointed in respect of the person's property and all or part of the person's property comes into the possession or under the control of the interim receiver; or
    6. all or part of the person's property comes into the possession or under the control of a receiver.

As such, in order to determine whether Directive No. 8R6 applies to a particular insolvency file, the question that needs to be asked is whether one of the "triggering events" described in (a) – (f) occurred on or after the coming into force date.

Enquiries

  1. For any questions pertaining to this Directive, please contact your local OSB office.

    James Callon
    Superintendent of Bankruptcy

Appendix A

New Forms

New Forms
Form Number Form Title
44.1 Notice by Debtor to Disclaim or Resiliate an Agreement
54.2 Report to Official Receiver on Deemed Annulment of Consumer Proposal of a Consumer Debtor who was a Bankrupt
55.1 Certificate of Assignment
93 Notice to Creditors and to Official Receiver of Impending Automatic Revival of Consumer Proposal
94 Notice of Objection to the Automatic Revival of Consumer Proposal
95 Notice to Creditors and to Official Receiver of No Automatic Revival of Consumer Proposal
96 Notice to Creditors and Report to Official Receiver of the Revival of Consumer Proposal

Appendix B

Revoked Forms

Revoked Forms
Form Number Form Title
22 Assignment for the General Benefit of Creditors (Natural Person)
23 Preliminary Statement of Affairs
27 Examination of Bankrupt by Official Receiver (Non-Business)
28 Questions to be put to an Officer of the Bankrupt Corporation, or a Designated Person, by the Official Receiver
57 Certificate of Full Performance of Consumer Proposal
85 Certificate of Discharge (Conditions Met)
88 Notice of Hearing of Trustee's Report to the Court after Three Years

Appendix C

Amended Forms

Amended Forms
Form Number Form Title
2 Application for Trustee Licence (Individual)
3 Application for Trustee Licence (Corporation)
12 Statement of Receipts and Disbursements
13 Statement of Receipts and Disbursements (Summary Administration)
14 Statement of Receipts and Disbursements (Consumer Proposal)
15 Notice of Deemed Taxation of Trustee's Accounts and Deemed Discharge of Trustee
16 Certificate of Compliance and Deemed Discharge of Trustee or Administrator
17 Notice of Hearing for Taxation of Trustee's Accounts and Discharge of Trustee
19 Certificate of Appointment of Trustee
20 Certificate of Appointment of Trustee
20.1 Certificate of Appointment of Trustee
21 Assignment for the General Benefit of Creditors
24 Notice of Examination before the Official Receiver (Corporation)
25 Notice of Examination before the Official Receiver (Individual Bankrupt/Debtor)
26 Questions to be put to the Bankrupt/Debtor or Officer of the Corporation (or Designated Person) by the Official Receiver
29 Trustee's Report on Cash-Flow Statement
30 Report on Cash-Flow Statement by the Person Making the Proposal
31 Proof of Claim
35 Certificate of Assignment
39 Certificate of Assignment
42 Certificate of Assignment
43 Notice of Default in the Performance of a Proposal
44 Certificate of Assignment
46 Certificate of Full Performance of Proposal
48 Report of Administrator on Consumer Proposal
55 Certificate of Assignment
56 Notice to Creditors and Report to Official Receiver on Deemed Annulment of Consumer Proposal
60 Request for Mediation made by Trustee
61 Notice of Mediation
62 Notice of Cancellation of Mediation
65 Monthly Income and Expense Statement of the Bankrupt/Debtor and the Family Unit and Information (or Amended Information) Concerning the Financial Situation of the Individual Bankrupt
67 Notice of Bankruptcy and First Meeting of Creditors
68 Notice of Impending Automatic Discharge of Bankrupt
69 Notice of Bankruptcy and of Impending Automatic Discharge of Bankrupt, and Request of a First Meeting of Creditors
70 Notice of Bankruptcy and Request of a First Meeting of Creditors
78 Statement of Affairs (Business Bankruptcy / Proposal)
79 Statement of Affairs (Non-Business Bankruptcy / Proposal)
80 Notice of Intended Opposition to Discharge of Bankrupt
82 Report of Trustee on Bankrupt's Application for Discharge
84 Certificate of Discharge