The Office of the Superintendent of Bankruptcy (OSB) invites comments from the public and stakeholders on specific issues by launching a consultation process.
Draft Directive No. 1R5, Counselling in Insolvency Matters
Closing Date: July 16, 2019
Ottawa, —The Office of the Superintendent of Bankruptcy (OSB) is seeking comments from stakeholders on draft Directive No. 1R5, Counselling in Insolvency Matters, which will:
- Introduce an enhanced insolvency counselling curriculum, and
- Reduce administrative burden.
Proposed enhancements to BIA insolvency counselling
Amendments to the Bankruptcy and Insolvency Act (BIA) in 1992 introduced insolvency counselling for consumer debtors. Since then, the number of consumer insolvencies has increased significantly and the marketplace has evolved while the curriculum has remained largely unchanged.
In February 2013, an Audit and Evaluation Branch (AEB) Report revealed opportunities to enhance the delivery of the insolvency counselling program through improved access to products and tools and recommended the OSB explore options for the mandatory counselling model to provide more tailored counselling sessions. Following the AEB Report, the OSB published its Management Response and Action Plan to address the recommendations in the AEB report.
The current proposed amendments, designed to implement the AEB recommendations on the curriculum content, will provide the following enhancements:
- Greater flexibility for Licensed Insolvency Trustees (LITs) to determine the timing of counselling that best meets the bankrupt’s or consumer debtor’s individual needs.
- Clear and updated counselling topics for continued relevance to the majority of debtors and greater flexibility regarding when proposed topics are to be delivered.
- The provision of online self-learning modules to enhance and support the objectives of the mandatory in-person sessions. A pilot test of the online material is underway.
- Four questions for the debtor are added to the reporting form. These questions will allow the OSB to measure the effectiveness of counselling and inform whether additional improvements are needed.
Proposed reductions to administrative burden
Adjustments are also proposed to reduce administrative burden and remove any potential perceived barriers for LITs to rely on qualified third-party counsellors to provide for counselling.
The OSB redesigned the Directive’s associated forms and reporting process:
- The three forms have been condensed to one reporting form per session.
- The requirement to request a variance is eliminated.
- LITs will have the option to report on insolvency counselling after one or both sessions.
A transitional provision will give LITs the flexibility to report on any counselling session delivered before the coming into force of Directive No. 1R5 using either the Schedules from Directive No. 1R4, or the reporting form in the new Directive, if available.
Other measures to reduce administrative burden include:
- The requirement to audio record any counselling sessions has been removed.
- The requirement for 3.5 hours of professional development can now be completed over a period of two years rather than one.
The Directive has been streamlined by removing paragraphs and information also found in the BIA and its Rules. This helps remove repetition, reduces the number of pages, and makes the Directive more concise.
The OSB is responsible for protecting the integrity of the insolvency system and ensuring LITs comply with the BIA and its Rules. LITs should take no action nor engage in any relationship that could be seen as jeopardizing the integrity of the insolvency system, including, but not limited to:
- Accepting assessments completed by Intermediaries and failing to exercise due diligence by relying on such assessments.
- Allowing any compensation, fees and/or exchange of considerations for referrals.
Comments on the draft are invited until . Please send your comments to Sheila Westerink Robin, National Manager, Policy and Regulatory Affairs (PRA), at firstname.lastname@example.org.
Upon request to the same email address, the OSB will send a version of the Directive that tracks the changes made to Directive No. 1R4.
Proposed changes to Directive No. 1R3, Counselling in Insolvency Matters
Closing Date: November 24, 2017
Ottawa, —The OSB invited comments from Licensed Insolvency Trustees (LITs), the public, and any interested parties on proposed changes to Directive No. 1R3, Counselling in Insolvency Matters. Directives are issued by the Superintendent of Bankruptcy under the authority of paragraphs 5(4)(b) and (c) of the Bankruptcy and Insolvency Act (BIA). Directives apply to LITs and prescribe their obligations and responsibilities with regard to their administration of bankruptcies and proposals under the BIA.
This information is intended solely for the purpose of seeking public comment (October 16 - November 24, 2017). Directive No. 1R3, Counselling in Insolvency Matters, remains in effect.
Please note that the OSB may publish some or all of the comments received and may summarize in public documents the input provided. Therefore, in making a submission, it was requested that the respondent’s name be clearly indicated, as well as whether the respondent is an LIT, and if applicable, the organization represented by the respondent in making the submission. Submissions were to be provided electronically in PDF format, to facilitate posting.
In order to ensure transparency, and support appropriate consideration of comments received, individuals or organizations who wished their comments to be considered as originating from persons who perform counselling duties on behalf of an LIT were asked to ensure to include, by copy, the relevant LIT(s) on their submission.
In order to respect privacy and confidentiality, when providing a submission, respondents were asked to advise whether they:
- consented to the disclosure of their submission in whole or in part;
- requested that their identity and any personal identifiers be removed prior to publication; and,
- wished any portion of their submission to be kept confidential.
In addition, please note that information that was received throughout this submission process is subject to the Access to Information Act and the Privacy Act. If you have expressed an intention that your submission, or any portions thereof, be considered confidential, the OSB will make all reasonable efforts to protect this information.
How to comment
The OSB invited written submissions with commentary on any element of the proposed Phase I amendments, as described in the following documents:
- Draft Directive No. 1R4, Counselling in Insolvency Matters
- Draft amended BIA forms:
Specific comments (with explanation) regarding the wording of the Directive and proposed revisions to the BIA Forms, which may further enhance LIT compliance with the regulatory framework and facilitate efficient management of the process, were encouraged.
While all submissions are being reviewed, it should be noted that comments with regard to the BIA’s legislative parameters and Bankruptcy and Insolvency General Rules which are applicable to insolvency counselling and LIT’s role, fall outside the scope of this consultation.
Comments on this proposal were invited on or before November 24, 2017.
Proposed New Directive on Trustee Designation and Advertising: Directive No. 29R3
Ottawa, —The OSB solicited comments from the public and stakeholders on proposed requirements for trustee advertising and use of a professional designation in relation to terms used by licensed trustees to identify themselves when conducting their duties and when advertising their services. These requirements aim to provide greater clarity for Canadians regarding who is licensed by the OSB to provide services under the Bankruptcy and Insolvency Act (BIA) and to help individuals to make informed choices about formal mechanisms to address debt problems.
This information is intended solely for the purpose of seeking public comment (June 1- June 30, 2015). Directive No. 29R2, Advertising by Trustees, remains in effect.
The Superintendent of Bankruptcy issues licences to trustees following a rigorous qualification and assessment process. Licensed trustees have the authority to administer bankruptcies and proposals under the BIA and offer services to the public. Trustees are the only professionals granted a licence under the BIA. Under the licence, they are responsible for administering all insolvency estates in Canada. The OSB supervises trustees and oversees administration of estates in bankruptcy, commercial reorganizations, proposals and receiverships under the BIA. The OSB also receives and investigates complaints related to trustees and others involved in the insolvency process. The Superintendent of Bankruptcy also has the power to conduct an investigation into the professional conduct of a trustee and issue a decision affecting a trustee's licence to ensure compliance with professional standards that apply to the trustee profession.
The Superintendent has the legislative authority to issue directives that set out requirements relating to the powers, duties and functions of trustees when administering estates filed under the BIA. A Directive on advertising by trustees has existed since 1991 to provide guiding principles and requirements for trustees when advertising their services. Following a review of existing requirements in light of an evolving marketplace and changing needs of debtors, the OSB is proposing a new Directive on Trustee Designation and Advertising.
a) Licensed Trustee in Insolvency and Restructuring (LTIR)
It is proposed that the professional designation Licensed Trustee in Insolvency and Restructuring (LTIR) would be required to be used by individuals holding a valid licence issued by the Superintendent of Bankruptcy as defined in the directive.
- The term "Licensed" is intended to facilitate public identification of professionals who are legally authorized to provide services under the BIA.
- The term "Trustee" is the term used in the BIA.
- The term "Insolvency and Restructuring" is intended to accurately reflect the range of services available under insolvency legislation, including bankruptcies as well as proposals, in addition to other services that a trustee can perform.
- The existing term "Trustee in Bankruptcy" would be discontinued to provide clarity for the public.
- The Canadian Association of Insolvency and Restructuring Professionals (CAIRP) has indicated support for the proposed designation.
b) Requirement to use professional designation
To ensure Canadians are aware of the qualifications and role of their service provider, use of the professional designation would be required in all communications or representations under the legislation to enhance transparency for clients receiving services.
The proposal would make it obligatory for the professional designation to be included in all advertisements soliciting consumer clients to assist debtors in determining which professionals are licensed by the Superintendent.
Inclusion of the professional designation in advertisements soliciting corporate insolvency clients, or pertaining to services unrelated to insolvency clients, would no longer be obligatory.
Individuals using the professional designation who are not licensed trustees could be found guilty of an offence under the BIA. This provision is intended to discourage misrepresentation in the marketplace.
c) Prescribe professional standards for advertising
For the most part, the proposed provisions would retain the existing requirements in Directive 29R2, as well as sections 50 and 51 of the Bankruptcy and Insolvency General Rules. Consistent with requirements in other regulated professions, the obligation to adhere to professional standards in all advertising is intended to protect the integrity of the insolvency profession and guard against undesirable practices in the marketplace.
Where to send comments
Comments on this proposal were invited on or before .
- Date modified: