Messages to LITs concerning COVID-19

Superintendent’s Message to LITs: August 11 – Reopening of Businesses

Some provinces have started easing restrictions put in place due to the COVID-19 pandemic and reopening non-essential businesses. In light of this and to address enquiries from some LITs, the Superintendent of Bankruptcy encourages LITs to continue their efforts to respect guidelines issued by applicable public health authorities and provincial and municipal authorities concerning the safe return to work in physical locations.

Some measures may include limitations on the number of people in a given location at a given time, wearing masks and/or other personal protection equipment, practicing good hygiene, and complying with public health guidelines regarding physical distancing.

LITs should use their judgement to ensure the health and safety of their employees and the debtors and creditors they serve.


CAIRP Webinar June 2020 – Summary of OSB and CAIRP Presentations

The Canadian Association of Insolvency and Restructuring Professionals (CAIRP) launched their 2020 2021 National Webinar Series with one focusing on the impact of COVID-19 on the insolvency system. This online conference featured presentations by Mark Rosen and Jean-Daniel Breton, the Chair and Vice-Chair of CAIRP respectively, and by Elisabeth Lang, Superintendent of Bankruptcy.

In their presentation at the June 15 (English) and June 22 (French) online events, the Chair and Vice-Chair briefed members on CAIRP’s work to help members weather the COVID-19 pandemic and provided an update on how it had managed during the pandemic, including pivots that it had to make to deliver its professional development and education programs.

The Superintendent’s presentation highlighted the measures taken by the Office of the Superintendent of Bankruptcy (OSB) to mitigate impacts of the pandemic on debtors, creditors, and Licensed Insolvency Trustees (LITs). She also spoke of the collaboration between the OSB and CAIRP to identify the challenges faced by the LIT community during the pandemic, and the possible solutions to ensure the effective operation of the insolvency system for the benefit of Canadians.

The event was also an opportunity for the participating LITs to ask their questions to the Superintendent and the CAIRP Chair and Vice-Chair.

Summary of the presentations and a record of the question and answer sessions from the webinars.


Bill C-20, An Act respecting further COVID-19 measures: July 31

July 31, 2020

The Time Limits and Other Periods Act (COVID-19) (“Time Limits Act”) came into force on July 27, 2020. It provides a blanket suspension of time limits established by federal legislation with respect to court proceedings (s.6). It also authorizes the issuance of targeted Ministerial Orders suspending various statutory time limits set out in its schedule, including Bankruptcy and Insolvency Act (BIA) and Companies' Creditors Arrangement Act (CCAA) time limits (s.7). At present, for the reasons below, neither of these provisions apply to the BIA and CCAA, and therefore BIA and CCAA time limits remain unaffected.

  • An Order in Council was issued on July 30, 2020 providing that s.6 would not apply to the BIA and the CCAA
  • As of this date, no Ministerial Order has been issued with respect to the BIA or CCAA, and therefore time limits remain as set out in these acts.

The Office of the Superintendent of Bankruptcy (OSB) continues to monitor insolvency filings to assess the impact of the COVID-19 pandemic on the insolvency system. If the situation changes or stakeholders consider there to be systemic challenges that could be addressed through a Ministerial Order, please communicate with the OSB via email at
ic.osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.

Bill C-20, An Act respecting further COVID-19 measures

Order-in-Council – BIA / CCAA - PC Number: 2020-0548


Updated CRA Collections Activities (COVID-19): June 11

June 11, 2020

Effective June 15, 2020, the insolvency toll-free telephone lines at the Insolvency Intake Centres (IIC) will be open to answer enquiries from taxpayers and Licensed Insolvency Trustees (LIT). Please expect delays as we respond to a higher than normal volume of calls.

General enquiries

Please continue using the General Enquiries lines for the following types of enquiries:

  • to find out the status of filed returns,
  • to get a copy of a Notice of Assessment or tax information slip(s),
  • to re-issue payments or cheques.

The General Enquiry lines are open between 8:00 a.m. and 4:00 p.m. your local time, at the following telephone numbers:

  • 1-800-959-8281 for individual accounts
  • 1-800-959-5525 for business accounts

Paper returns

There are currently delays in processing paper income tax and benefits returns, such as pre-bankruptcy and post-bankruptcy returns. Officers at the IICs do not have any additional information on the delays.

Administrative agreements

Please do not fax administrative agreement requests to the local offices at this time. Please fax the requests to the IIC fax lines, or call their toll-free numbers. Your request will be submitted to the appropriate regional office, who will then contact you to discuss the account.

Proof of claim

There may be delays in providing a proof of claim or amended proof of claim(s) as there is a limited ability to print in the offices. We will review the account and send out a proof of claim, if printing permits.

Deferrals of payments

The CRA will be accepting deferrals of payments, or an amended proposal for deferral of payments up to September 1. Please use the Limited proxy – Deferral of payments from the Office of the Superintendent of Bankruptcy (OSB)’s website for this purpose.

Meeting of creditors

The CRA will be seeking to adjourn meetings of creditors up to September 1. Please use the Limited proxy – Adjournment of creditors’ meeting from the OSB website for this purpose.

Proposal year credits / debts

If a proposal year split is required, please provide the necessary information to split the debt. We will submit the request for processing.

Refunds set off to external parties

If a post-insolvency refund has been set-off to a party external to the CRA, please contact them at the number provided on the notice to arrange the return of funds and removal of the set-off, where appropriate.


Superintendent’s Message of March 13, 2020 to LITs - Update

June 8, 2020

On March 13, 2020, the Superintendent of Bankruptcy issued a message to Licensed Insolvency Trustees (LIT) titled “Temporary Guidance for LITs During the COVID-19 Pandemic.”  The noted message stated:

“The OSB recognizes the COVID-19 pandemic is an extraordinary circumstance and, until further notice, no separate approval will be required to conduct assessments using methods other than in-person. Where video-conferencing is not feasible, assessments may be performed via a combination of telephone discussion and email for document receipt.”

The Office of the Superintendent of Bankruptcy (OSB) has considered the merits of extending the option to conduct remote service delivery of assessments. As such, until March 31, 2021, no separate approval will be required to conduct assessments using methods other than in-person for those areas where LITs have an approved resident or non-resident office as per OSB records.

In order to ensure greater clarity and consistent interpretation, LITs must consider their ability to continue to provide adequate in-person services in the debtor’s locality as required, at no additional cost to the estate or the debtor.


COVID-19 – Accomodations on payment timetables for insolvency proposals when Revenu Québec is the majority creditor: May 15

This is an unofficial translation. Please consult the official letter in French.

May 15, 2020

Notice to the Office of the Superintendent of Bankruptcy and to Licensed Insolvency Trustees

Due to the exceptional situation entailed by COVID-19, Revenu Québec has implemented measures to facilitate matters for citizens and businesses experiencing financial difficulties, notably by being open and flexible with regards to the usual length of payment agreements in connection with tax debts.

On this point, many taxpayers and mandataries who filed a proposal pursuant to the Bankruptcy and Insolvency Act (BIA) that is in the process of being completed, currently find themselves in a precarious financial situation and are struggling to respect the payment terms under their proposal, due to a loss of employment or a reduction in income in connection with COVID-19.

To assist them in the context of this health emergency, Revenu Québec has decided to implement the following measures when it is the majority creditor of a debtor, who is unable to make the payments under the terms of their proposal and who requests a delay:

  • For a proposal under Division I of Part III of the BIA that is in default, including a default in connection with a payment under subsection 60(1.1) of the BIA,  Revenu Québec will disregard the default and will provide an extension on payments for the months of May to August 2020, up to September 1, 2020, without it being necessary to the trustee to satisfy the requirements under section 62.1 of the BIA;
  • For a consumer proposal under Division II of Part III of the BIA, Revenu Québec agrees to the filing of an amendment to the proposal that provides for an extension on payments of May to August 2020, up to September 1, 2020, to avoid the application of section 66.31 of the BIA.

In addition, we inform you that, as needed, Revenu Québec could participate in a creditors’ meeting using telecommunication technology pursuant to Directive No. 22R2, Proofs of Claim, Proxies, Quorums and Voting at Meetings of Creditors of the Office of the Superintendent of Bankruptcy, notably in order to adjourn a creditors’ meeting or to accept as the case may be, waiving a default or an amended proposal seeking an extension on payments up to September 1, 2020.

By doing so, Revenu Québec implements everything possible as a majority creditor, to ensure that the process of redress for citizens and businesses in financial difficulty who had recourse to the BIA may continue, notably to avoid their becoming bankrupt.

Questions and Information

Citizens and businesses: Please contact your licensed insolvency trustee.

LIT: Please contact the Conseil des syndics autorisés en insolvabilité du Québec by phone (1-888-420-4288) or by email.


OSB Temporary Guidance May 8: COVID-19


Notices of Intention and Division I Proposals – Holding Proposals | Swearing of Documents

May 08, 2020

Notices of Intention and Division I Proposals – Holding Proposals

As Licensed Insolvency Trustees (LIT) are aware, ss. 50.4 (8) and (9) of the Bankruptcy and Insolvency Act (BIA) provides time limits for extensions of a Notice of Intention before a Division I proposal must be filed and ss. 50.4(10) expressly provides that these timelines cannot be extended by the court. In certain cases, a proposal can be made within the prescribed timelines and debtors are encouraged to make every effort to fulfil these requirements if possible.

However, some debtors may require additional time to make a proposal about which they can feel confident given the current economic uncertainty due to COVID-19. In these circumstances, it is possible to file a “holding proposal”, which would essentially consist of a proposal setting out the debtor’s intention to file a proposal. The process would include the LIT filing the holding proposal, followed by scheduling the First Meeting of Creditors pursuant to s. 51 of the BIA. Note that the Omnibus Orders (rendered in every province and territory in late April 2020) provide a blanket authorization to LITs to postpone the meetings for all existing proceedings under Division I of Part III of the BIA, including those filed during the Suspension Period (as defined in the Omnibus Orders). An “Amended Proposal” could then be filed before the meeting is called, after the Suspension Period ends, and the vote pursuant to ss. 54(1) can occur. The safeguard measure for the creditors, which effectively exists as soon as any proceeding is filed under Division I of Part III of the BIA, is that creditors may apply to the Court to have the proceedings terminated and have the debtor be deemed to have made an assignment into bankruptcy under ss. 50(12) or ss. 50.4(11) of the BIA.

Swearing of Documents

Please be advised that the March 13 Guidance to LITs has been amended to ensure it reflects the amended March 25 message regarding the swearing of documents. The amended section 4, Signatures and Oaths, of the March 13 Guidance now reads as follows:  

Signatures and Oaths: LITs are encouraged to exchange documents that require signature via email, or other electronic means, and provide debtors the necessary support to explain the documents via videoconference or over the phone or as otherwise required. LITs should obtain the original signed copies to add to their records as soon as practical. LITs should explore legal methods for the witnessing of signatures and swearing of oaths. Verification of identity remains a crucial step. 

Any questions should be sent via email to ic.osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.


Omnibus Application Guidance: May 6 Updated

May 06, 2020

The following guidance is intended to assist with the interpretation and application of the provincial and territorial court orders obtained in the Superintendent of Bankruptcy’s omnibus applications. Where a conflict exists between this guidance and the orders, the orders will prevail.

The orders were sought to relieve pressure on stakeholders and the insolvency system due to COVID-19 related challenges. However, all matters that can proceed during the suspension period should proceed, particularly where any of the parties express an interest in doing so.

Additional clarity regarding key definitions in the orders

“Period of the Emergency” - is the period from March 13, 2020 to June 30, 2020 and includes both March 13, 2020 and June 30, 2020.a

“Suspension Period” - is the period from April 27, 2020 to June 30, 2020 and includes both April 27, 2020 and June 30, 2020.

“Active Consumer Proposals” - includes all Division II proposals filed with the Office of the Superintendent of Bankruptcy (OSB) or revived pursuant to the Bankruptcy and Insolvency Act (BIA) on or before June 30, 2020 but excludes Division II proposals that were deemed annulled, annulled or that were fully performed on or before April 27, 2020.

The following examples are provided to illustrate the application of the definition of “Active Consumer Proposals”:

  1. The definition includes all consumer proposals filed with the OSB any time up to June 30, 2020 but not deemed annulled (unless revived – see example in B), annulled or fully performed on or before April 27, 2020.
  2. The definition includes a consumer proposal which was deemed annulled but is revived pursuant to the BIA on or before June 30, 2020.
  3. The definition does not include consumer proposals which were deemed annulled (unless revived – see example in B), annulled or fully performed on or before April 27, 2020.

 The following explains the provision allowing an additional three missed payments before a consumer proposal will be deemed annulled: 

  1. For Active Consumer Proposals that provide for monthly payments, the consumer proposal will be deemed annulled when a debtor misses an amount that is equal to or more than the amount of three additional payments between March 13, 2020 and December 31, 2020 plus three payments missed any time during the period of the proposal.
  2. For Active Consumer Proposals where payments are to be made less frequently than monthly, the consumer proposal will be deemed annulled when a debtor is in default for an additional three months for those payments due between March 13, 2020 to December 31, 2020 plus a default of three months at any time during the period of the proposal. 

Frequently Asked Questions

  1. Question: Do consumer proposal debtors have to make up all missed payments by December 2020?

    Answer: No. Up to an additional three monthly payments can be missed between March 13, 2020 and December 31, 2020 before a consumer proposal is deemed annulled. Missed proposal payments will have to be made up by the end of the proposal or an amended proposal will have to be approved by creditors. Debtors should carefully consider whether it is necessary to miss payments. It should also be noted that creditors may apply to court to annul a consumer proposal where there is a default in the performance of any provision in the proposal. Although this provision is not often used, debtors should be aware that it is possible that a creditor could seek an annulment following even a single missed proposal payment notwithstanding the orders or s. 66.31 of the BIA
  1. Question: If a proposal was deemed annulled prior to April 27, 2020, when does it need to be revived to be covered by the order?

    Answer: A proposal that is revived pursuant to the BIA on or before June 30, 2020 will be covered by the order. 
  1. Question: If three payments were missed prior to April 27, 2020 but the Licensed Insolvency Trustee (LIT) did not send notices of a deemed annulment, does anything need to be done to be covered by the order?

    Answer: Yes. Once three payments prior to April 27, 2020 are missed the BIA states that a consumer proposal is deemed annulled regardless of administrative steps that may or may not have been taken. As such, where the equivalent of three or more payments have been missed, the consumer proposal will need to be revived pursuant to the BIA on or before June 30, 2020 in order to be considered an Active Consumer Proposal for the purpose of the order. 
  1. Question: Is the period under which a consumer proposal can be automatically revived also extended?

    Answer: No. The Order allows the equivalent of up to 3 additional payment defaults or an additional 3 months time during the period of March 13 to December 31, 2020 before a deemed annulment of a consumer proposal is triggered. After a deemed annulment of a consumer proposal is triggered, a notice of revival must still be filed within 30 days of the deemed annulment. 
  1. Question: Will the five-year limit on consumer proposals be extended in order to give debtors the time necessary to make up missed payments?

    Answer: In order to be approved, a “consumer proposal must provide that its performance is to be completed within five years”:  66.12(5) and 66.24(3). Therefore all payments, including missed payments, are to be made during this period unless an amended proposal is filed and approved. The Act, however, does not provide immediate consequences for defaults that result in non-performance within this period. If a consumer proposal has exceeded the five-year period but has not been annulled, it remains in force and therefore is capable of completion. While interested parties are free to seek a court-ordered annulment, where delay in completion is related to COVID-19 and absent other circumstances, the Superintendent does not anticipate seeking an annulment or a fee reduction at taxation. 
  1. Question: Will there be no meetings of creditors within the period mentioned in the Court Order or does this just allow greater flexibility for meetings of creditors?

    Answer: LITs are encouraged to schedule meetings of creditors as soon as possible particularly where a party has so requested. However, the timeline for holding meetings of creditors scheduled to occur during the Period of Emergency has been extended by the Suspension Period. Effectively, this means that the timelines stop running between April 27, 2020 and June 30, 2020 and start running again on July 1, 2020. If 5 days of a 21 day period had elapsed prior to April 27, 2020 then the 21 day period would expire 16 days after June 30, 2020.
  1. New Question: What is the correct interpretation of the COVID-19 relief orders with respect to consumer proposals?

    Generally, when a debtor misses three (3) payments, or the equivalent thereof, at any time during the consumer proposal, the consumer proposal is deemed annulled as per subsection 66.31(1) of the Bankruptcy and Insolvency Act (BIA). The Court Orders are intended to allow flexibility for debtors who are adversely impacted by the COVID-19 pandemic. The Court Orders allow a consumer debtor to miss up to an additional three payments between March 13, 2020, and December 31, 2020, before the consumer proposal is deemed annulled.

    Therefore, a consumer proposal will be deemed annulled if a debtor who had filed or revived their proposal prior to June 30, 2020, misses an additional three (3) payments or an amount equivalent to or more than three payments between March 13, 2020, and December 31, 2020, as well as three missed payments, or an amount equivalent to or more than three payments, at any time during the course of the proposal. Note that a consumer proposal will also be deemed annulled if three payments or an amount equivalent to or more than three payments are missed outside of the March 13, 2020, to December 31, 2020, time period even if fewer than three payments or the equivalent were missed during that period.

    For example, there is no deemed annulment if a proposal is filed and two payments are missed before March 13, 2020, three payments are missed between March 13, 2020 and December 31, 2020, and no other payments are missed after that date. However, the proposal will be deemed annulled if a further payment is missed in January 2021.

    Debtors should be aware that a creditor could seek an annulment following even a single missed proposal payment notwithstanding the court orders or section 66.31 of the BIA.

    The following chart lists the various possible scenarios of missed payments for consumer proposals that are filed or revived before June 30, 2020.

Scenario

Missed payments before March 13, 2020

Missed payments between March 13 and December 31, 2020

Missed payments after
December 31, 2020

Deemed annulment

A

0

0-3

0-2

No

B

0

0-3

3

Yes

C

0

3-5

0

No

D

0

4

2

Yes

E

0

5

1

Yes

F

0

6

0

Yes

G

0-2

0-3

0

No

H

1

0-4

0

No

I

1

5

0

Yes

J

1

0-3

1

No

K

1

0-3

2

Yes

L

2

4

0

Yes

M

2

0-3

1

Yes


Provincial and Territorial Court Orders: May 1

May 1, 2020

Further to the court order issued by the Ontario Superior Court of Justice on Monday, April 27, 2020, based on a motion filed by the Attorney General of Canada on behalf of the Superintendent of Bankruptcy, similar court orders have now been issued by all provinces and territories.

These orders provide all Canadians who have filed for insolvency with greater flexibility to meet their obligations during this time of economic uncertainty.

The complete set of provincial and territorial court orders will be posted on the Office of the Superintendent of Bankruptcy’s Website as soon as possible.

For questions about these court orders, please contact Regulatory Affairs.


Court Order Issued by the Ontario Superior Court of Justice: April 27

April 27, 2020

A court order was issued by the Ontario Superior Court of Justice on Monday, April 27, 2020, based on a motion filed by the Attorney General of Canada on behalf of the Superintendent of Bankruptcy. This order provides Ontarians who have filed for insolvency with greater flexibility to meet their obligations during this time of economic uncertainty. This includes allowing consumer proposal debtors to miss an additional three consumer proposal payments between March 13, 2020, and December 31, 2020, before the consumer defaults on the proposal as well as extensions of certain operational deadlines. Applications for similar relief effective April 27, 2020 are being scheduled to be heard in other provinces and territories on or before April 30, 2020 and updates will be provided as soon thereafter as possible.

The court order can be accessed on the OSB's Website. An unofficial translation and the court’s endorsement will also be posted as soon as possible.

For questions about this court order, please contact Regulatory Affairs at ic.osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.


Pending Default of a Proposal under the BIA where the Canada Revenue Agency is a creditor: April 23

April 23, 2020

The Canada Revenue Agency (CRA) is taking a people-first approach in realigning its resources to ensure that all Canadians and businesses are supported if they are experiencing financial hardship due to the COVID-19 outbreak.

The CRA has heard from Licensed Insolvency Trustees (LITs) and the Office of the Superintendent of Bankruptcy (OSB) about debtors who have suffered a loss of employment or a reduction of income as a result the COVID-19 outbreak and their concerns over defaulting on their proposals.

The CRA is proposing a solution to assist taxpayers and LITs in circumstances where the CRA is a creditor and the debtor is experiencing financial hardship.

For proposals filed under Division 1 of the Bankruptcy and Insolvency Act (BIA), the CRA is offering a waiver of the default pursuant to section 62.1 of the BIA and granting a deferral of payments to the estate up to September 1, 2020.  This will also apply to any amounts subject to section 60(1.1) of the BIA as per our existing Administrative Agreement policy with LITs.

For consumer proposals under the BIA, the CRA offers the acceptance of an amended proposal that calls for a deferral of payments up to September 1, 2020.

Hopefully, this will offer taxpayers the time to focus on other aspects of their financial wellbeing without having to file for bankruptcy. 

Further notifications will be provided to stakeholders through the Canadian Association of Insolvency and Restructuring Professionals and through updates to the CRA information page on the OSB website.

Limited proxy - Deferral of payments

Limited proxy - Adjournment of Creditors Meeting


Interim Technical Instructions to LITs: April 14

Stakeholder concerns and enquiries concerning meetings of creditors during the COVID-19 pandemic

April 14, 2020

This message provides interim technical instructions based on stakeholder concerns and enquiries concerning meetings of creditors to be held during the COVID-19 pandemic.

Meeting of Creditors to be conducted via Telephone or Video Conference – Input Instruction for BIA Forms related to Directive 8R17

This technical input is for the following BIA Forms where creditors meetings are to take place by teleconference or video conference:

  • Form 50, Notice of Meeting of Creditors to Consider Consumer Proposal,
  • Form 66, Notice to Bankrupt of Meeting of Creditors,
  • Form 68, Notice of Bankruptcy, First Meeting of Creditors,
  • Form 71, Notice of First Meeting of Creditors,
  • Form 73, Notice of Bankruptcy and First Meeting of Creditors in Local Newspaper, and
  • Form 92, Notice of Proposal to Creditors.

Where meetings of creditors are to be conducted via telephone or video conference, in order to ensure proper dissemination of information to stakeholders via the issuance and e-filing of the Notice to stakeholders and the OSB, LITs are to input the details of the meeting in the applicable BIA Form as well as the Estate Information Sheet (EIS) as follows:

  • Building: “Meeting to be conducted via telephone” / “Meeting to be conducted via video conference”
  • Street: phone number or URL to video conference web link
  • City: Any additional pin numbers or access codes

This will enable the OSB to issue the Certificates of Assignment/Filing to the LIT reflecting the most accurate meeting of creditors information more easily. 


OSB Temporary Guidance March 30: COVID-19

Service Fees Act (SFA) | Levy and Registration Fees | Annual Banking Review | Guidance re: COVID-19 Emergency Response Act | Income Support Payments | GST/HST credit payments | Temporary Increase in Canada Child Benefit | Other COVID-19 Relief Payments

March 30, 2020

Further to the guidance to Licensed Insolvency Trustees (LITs) published on March 13, 17, and 25, 2020, this message provides key information and additional guidance based on stakeholder concerns and enquiries in the context of the COVID-19 pandemic.

Service Fees Act (SFA)

The Office of the Superintendent of Bankruptcy (OSB) had previously advised Licensed Insolvency Trustees (LITs) on November 4, 2019, and February 24, 2020, that some of the OSB’s fees will be changing due to the implementation of the SFA on March 31, 2020.

The OSB recognizes that the COVID-19 pandemic is an extraordinary circumstance and that many LITs are entirely focused on how to continue to comply with federal and provincial direction for their workplaces, while continuing to help debtors deal with the financial impacts of the current situation. As such, until further notice, the OSB will be seeking to defer the implementation of the following fee increases pursuant to the SFA:

  • Filing fees
  • Licence renewal fees
  • Licence application fees
  • Levy for Summary Administrations

Levy and Registration Fees

As noted in the Guidance of March 17, OSB employees are currently being encouraged to telework, if possible, until further notice, in line with Government of Canada and Public Health Agency of Canada recommendations regarding physical distancing and teleworking.

As a result, OSB processing of all levy and registration fees has been reduced significantly, which directly affects the status of LITs Statement of Outstanding Balances. All affected payments will be appropriately safeguarded and allocated to the appropriate estates when possible.

Further, March registration fees, due April 15, 2020, can be remitted by LITs by May 15, 2020.

Annual Banking Review

Pursuant to Directive No. 5R5, Estate Funds and Banking, Licensed Insolvency Trustees (LITs) are required to submit their Annual Banking Report (ABR) and Request for Bank Confirmation to the Office of the Superintendent of Bankruptcy (OSB) no later than May 31, 2019. This year, due to the COVID-19 pandemic, the OSB will be accepting ABR reporting as of May 1, 2020, and no later than June 30, 2020. LITs will be able to submit their ABR at their earliest convenience within this timeframe.

Each year, an increasing amount of ABRs are filed electronically, with the electronic ABRs covering 98% of all estates in 2019. The OSB will be phasing out paper filing, as electronic filing immediately transfers the data without the need for manual input, which is more efficient for all and improves data integrity. As such, we strongly encourage the use of the electronic ABR system for this year’s filing.

In addition, noting that the current economic circumstances may present an increased risk to the management of estate funds, the OSB will increase monitoring to detect possible defalcation of estate funds.

ABR filing instructions will follow. 

Guidance re: COVID-19 Emergency Response Act

The Government of Canada has introduced the COVID-19 Emergency Response Act to help Canadians pay for essentials like housing and groceries, provide additional support to families with children, and help businesses to pay their employees and their bills during this time of uncertainty. The OSB wishes to emphasize the importance that funds received pursuant to the COVID-19 Emergency Response Act go to debtors, and not to estates, in furtherance of the intention of Parliament and these unprecedented circumstances. The OSB also wishes to highlight the importance of promoting fairness and avoiding unintended and prejudicial impacts on debtors in bankruptcies, whose funds may have otherwise flowed to the estate, versus debtors in proposals, who would have been more likely to keep their funds.

Income Support Payments

Part 2 of the COVID-19 Emergency Response Act enacts the Canada Emergency Response Benefit Act to authorize the making of income support payments – the Canada Emergency Response Benefit (CERB) – to support workers who lose their income as a result of the COVID-19 pandemic. The benefit covers Canadians who have lost their job, are sick, quarantined, or taking care of someone who is sick with COVID-19, as well as working parents who must stay home without pay to care for children who are sick or at home because of school and daycare closures. Additionally, workers who are still employed, but are not receiving income because of disruptions to their work situation related to COVID-19, would also qualify for the CERB. The CERB is available to Canadian workers affected by the current situation whether or not they are eligible for Employment Insurance (EI).

Pursuant to the COVID-19 Emergency Response Act, the CERB:

  • is not subject to the operation of any law relating to bankruptcy or insolvency;
  • cannot be assigned, charged, attached or given as security;
  • cannot be retained by way of deduction, set-off or compensation under any Act of Parliament other than this Act; and
  • is not garnishable moneys for the purposes of the Family Orders and Agreements Enforcement Assistance Act.

Therefore, debtors are entitled to keep income support payments received pursuant to the COVID-19 Emergency Response Act, and these payments should not be included as property or income pursuant to the BIA.

GST/HST credit payments

Part 1 of the COVID-19 Emergency Response Act provides additional assistance to individuals and families with low and modest incomes with a special top-up payment under the Goods and Services Tax (GST) credit or Harmonized Sales Tax (HST) credit.

A Licensed Insolvency Trustee’s (LIT) powers to receive and retain GST/HST credit payments from a bankrupt are limited pursuant to paragraph 67(1)(b.1) of the BIA, Rule 59, and section 67 of the Financial Administration Act (FAA).

The basic character of GST/HST credit payments is that they are property exempt from execution or seizure, except if they are required to satisfy the LIT’s fees and disbursements. If there is sufficient money to make a dividend available to creditors, GST/HST credit payments are considered exempt.

Pursuant to the FAA, GST/HST credit payments cannot be assigned. Agreements that purport to do so are ineffective and, when administering a bankruptcy, the LIT is to return the GST/HST credit payments to the bankrupt (section 67 of the FAA). As GST/HST credit payments cannot be assigned, it is inappropriate for LITs to request that they be assigned in a conditional order of discharge.

Keeping in mind the intention of the Government of Canada in introducing the COVID-19 Emergency Response Act, the OSB strongly encourages LITs to allow debtors to keep increases in GST/HST payments they receive pursuant to the COVID-19 Emergency Response Act, in spite of Rule 59 which may permit LITs to accept such amounts for fees and where no dividend is payable to creditors.

Temporary Increase in Canada Child Benefit

Part 1 of the COVID-19 Emergency Response Act gives additional assistance to families with children by providing temporary additional amounts under the Canada Child Benefit (CCB). 

Pursuant to subsection 122.61(4) of the Income Tax Act (ITA) the CCB:

  • shall not be subject to the operation of any law relating to bankruptcy or insolvency;
  • cannot be assigned, charged, attached or given as security;
  • does not qualify as a refund of tax for the purposes of the Tax Rebate Discounting Act;
  • cannot be retained by way of deduction or set-off under the Financial Administration Act; and
  • is not garnishable moneys for the purposes of the Family Orders and Agreements Enforcement Assistance Act.

Therefore, debtors are entitled to keep the CCB received pursuant to the COVID-19 Emergency Response Act, and these payments should not be included as property or income pursuant to the BIA.

Other COVID-19 Relief Payments

LITs are encouraged to interpret the enacting legislation providing other COVID-19 relief payments, for example from provincial governments. The interpretation and guidance above should apply, as appropriate.

Any questions should be sent via email to ic.osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.

The OSB continues to consider all possible options to address the impacts of COVID-19 on Canadian businesses and consumers and will provide additional guidance as appropriate.


OSB Temporary Guidance March 25: LIT Flexibility during the COVID-19 PANDEMIC

Closure of Non-Essential Businesses | Directive 1R6 and Software Updates | LIT Fees or Missed Surplus Income Payments | Provincial Courts and Avoiding Prejudice to Debtors | Swearing Documents

Please note that this guidance was amended on April 14 and may be subject to further amendment.

March 25, 2020

Further to the guidance to Licensed Insolvency Trustees (LITs) published on March 13, and 17, 2020, this message provides additional guidance based on stakeholder concerns and enquiries in the context of the COVID-19 pandemic.  LITs are best placed to determine where flexibility within existing rules can be of most benefit to individual consumer and commercial debtors impacted by the pandemic.

Thus, LITs are encouraged to exercise their professional judgment in using as much flexibility as possible to avoid unintended harm or prejudice in the current circumstances. Section 187 of the Bankruptcy and Insolvency Act (BIA) could be considered as appropriate (in particular subsections 187 (9), (11) and (12) with the caveat that some sections of the BIA, such as subsection 50.4(10), may override this provision). LITs are expected to document their policies, procedures and rationales during this period. The OSB’s approach to compliance will also be flexible and practical in light of the situation.

Closure of Non-Essential Businesses

Some provinces have required the closure of all non-essential businesses in an effort to help stop the spread of COVID-19.  Given the current situation and the non-exhaustive nature of the businesses typically deemed essential, the Superintendent is of the view that insolvency services may, directly or by analogy, be covered by professional, accounting, legal and/or financial services. However, many LIT firms have already made significant efforts to have staff work remotely and all efforts to respect provincial efforts should be undertaken. While it may be necessary to keep an office open in order to provide necessary access to insolvency services for Canadians businesses and consumers with a current filing or for those who may need to seek an insolvency solution, all due care to ensure physical distancing and to ensure the health and safety of those involved is encouraged.

Directive 1R6 and Software Updates

Directive 1R6 will come in to force on April 6, 2020. The amendments are intended to provide additional flexibility for telephone counselling in exceptional circumstances and, as noted in OSB’s Guidance on March 13, 2020 the COVID-19 situation meets that definition. OSB’s E-filing system will be ready to accept counselling certificates for non-LITs providing counselling by phone once LITs have updated their software systems. Until then, the OSB’s E-filing system will continue to accept the 1R5 forms and any counselling conducted by non-LITs by phone should be held for filing once LIT system updates are in place.

LIT Fees or Missed Surplus Income Payments

As LITs will be aware, many creditors are choosing to forbear, provide payment relief and other flexibilities to support individuals and businesses affected by the pandemic. The Superintendent strongly urges LITs to do the same and expects that courts will hold LITs to high standards in this regard when matters are brought forward.

Provincial Courts and Avoiding Prejudice to Debtors

LITs are encouraged to monitor communications from their local courts and to file documents with the court and/or OSB as necessary to extend timelines as appropriate. Alternatively, LITs might temporarily delay filing, where such a step may prejudice the debtor and where permissible under the BIA, for example  by delaying the filing an opposition to discharge for non-payment of surplus income or voluntary fees. In order to avoid the deemed annulment of a Division II Consumer Proposal following three missed payments, LITs are encouraged to consider all possible options including filing an amended proposal. In order to avoid the failure of a Division I Proposal and/or a deemed assignment into bankruptcy, LITs should file the necessary extensions with the court and/or e-file with the OSB where applicable.

Swearing Documents

The Statement of Affairs is a document that must be sworn by a commissioner of oaths prior to E-Filing. LITs are to be guided by the accepted practice in their province in this regard. Some provincial courts and/or law societies have adopted interim measures, such as virtual oaths or witnessing of documents by video conference. Other provinces have yet to communicate any interim measures. If no interim measures have been communicated by the courts and/or law societies, LITs are encouraged to be flexible.

For greater clarity, debtors could sign and make oaths via video conference (e.g. via a computer or smart phone) or the use of electronic signature software in provinces that have adopted such interim measures for swearing oaths. Where this has been done, and the original document is available, it should be e-filed. Where the original sworn document is not in the LIT's possession at the time of filing, the LIT may print the Statement of Affairs with the debtor’s information as they normally would and e-file the XML version of the document. Note that the E-Filing system will not accept a Statement of Affairs if the “declarant” field is blank. The previously sworn documents should be obtained when possible and uploaded to the LITs system for their records and for review by the OSB, as needed. Official Receivers will be flexible and accommodating regarding such interim measures.

Questions may be submitted to the OSB via email to ic.osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.

The OSB continues to consider all possible options to address the impacts of COVID-19 on Canadian businesses and consumers and will provide additional guidance as appropriate.


CRA Collections Activities (COVID-19): March 20

March 20, 2020

Collections activities on new debts will be suspended until further notice, and flexible payment arrangements will be available. 

If a taxpayer is prevented from making a payment when due, filing a return on time, or otherwise complying with a tax obligation because of circumstances beyond their control, they can submit a request to cancel penalties and interest. To make a request to the CRA to have interest and/or penalties waived or cancelled, please use Form RC4288, Request for Taxpayer Relief.

Payment arrangements are also available on a case by case basis if you can’t pay your taxes, child and family benefit overpayments, Canada Student Loans, or other government program overpayments in full.

Collections staff will address pre-existing situations on a case-by-case basis to prevent financial hardship.

Please note that due to measures taken surrounding the COVID-19 virus, our Debt Management Call Centre service is not currently available. We apologize for the inconvenience.

If you have concerns and require contact with a Collections Officer, please contact our toll free number 1-800-675-6184 between 8:00 a.m. and 4:00 p.m. your local time.


Message from the Superintendent to all LITs: March 17

OSB core services

March 17, 2020

In response to Government of Canada and Public Health Agency of Canada recommendations regarding social distancing and teleworking, all OSB employees are currently being encouraged to telework, if possible, until further notice.

Regarding core OSB services:

  • E-filing continues to function;
  • E-filing flags will be dealt with by select OSB staff remotely;
  • Bankruptcy and Insolvency Records Search via online service remains functional. Phone service is also being explored via remote delivery;
  • Callers to the OSB National Service Centre will be directed to submit an online request which will be actioned via email remotely or, if needed, by remote telephone call;
  • The final Oral Boards scheduled for March 18-20, 2020 have been postponed until further notice and will be rescheduled as soon as possible in order to complete this year’s licensing process for new applicants. All 2020 Oral Board candidates have been notified of expected delays in the delivery of results; and
  • Please note that OSB is also reviewing options relating to statutory deadlines which may be difficult to meet in the current circumstances. Further communication in that regard will be sent as soon as possible. Any questions should be sent via email to: osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.

As an organization, we will do our best to maintain our core services throughout these challenging times, and we will keep you up to date with any new information as soon as possible.

Should you need to communicate with the OSB, we encourage you to connect with us online or via email.

Thank you for your understanding.


Temporary Guidance for LITs During the COVID-19 Pandemic: March 13

Assessments | Insolvency Counselling | Meetings of Creditors | Signatures and Oaths

March 13, 2020

As concern about COVID-19 in Canada grows, insolvency practitioners may be asked or may decide it is necessary to take steps to reduce in-person contact. The OSB will support Licensed Insolvency Trustees (LITs) in these efforts, while maintaining the integrity of Canada’s insolvency system. 

The OSB encourages LITs to make use of the considerable flexibilities that exist in Superintendent’s Directives when determining which measures may be appropriate, in light of the pandemic. The OSB will also be more flexible in scheduling debtor exams, mediations and Trustee Office Visits. 

LITs may consider the following options to support social distancing: 

    1. Assessments - Directive 6R3 provides for the use of methods other than in-person assessments in extraordinary circumstances. The OSB recognizes the COVID-19 pandemic is an extraordinary circumstance and, until further notice, no separate approval will be required to conduct assessments using methods other than in-person. Where video-conferencing is not feasible, assessments may be performed via a combination of telephone discussion and email for document receipt. 
    2. Insolvency Counselling - Directive 1R5 allows LITs or their registered counsellors to provide counselling via videoconference. Upcoming amendments to the Directive will also allow registered counsellors to provide counselling over the telephone, when other means are not possible. Registered insolvency counsellors may begin providing insolvency counselling by telephone now, as needed. LITs should delay filing the Reports of Counselling Sessions until the OSB’s eFiling system and LITs’ insolvency software packages are updated to accept this (eFiling changes are anticipated for April 1, 2020). 
    3. Meetings of Creditors – recently updated Directive 22R2 encourages the Chair of a meeting of creditors to make every reasonable effort to hold creditors meetings by electronic or digital means of communication. The chair of the meeting may rely on representations by attendees to confirm their identification. 
    4. Signatures and Oaths: LITs are encouraged to exchange documents that require signature via email, or other electronic means, and provide debtors the necessary support to explain the documents via videoconference or over the phone or as otherwise required. LITs should obtain the original signed copies to add to their records as soon as practical. LITs should explore legal methods for the witnessing of signatures and swearing of oaths. Verification of identity remains a crucial step. 

Any questions should be sent via email to ic.osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.

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