Directive No. 14
Coming into force September 18, 2009
Use of Related Persons to Perform Services for Bankruptcy Estates and Costs Chargeable to the Estate
Issued: August 14, 2009
(Supersedes Directive No. 3R issued on July 23, 1993, on the same topic)
1. In this Directive,
"Act" means the Bankruptcy and Insolvency Act;
"OSB" means the Office of the Superintendent of Bankruptcy;
"related persons" mean those defined in section 4 of the Act, as well as employees, employers or associates of the trustee and firms in which the above individuals or the trustee may have an interest;
"Rules" means the Bankruptcy and Insolvency General Rules.
Authority and Purpose
2. This Directive is issued pursuant to the authority of paragraphs 5(4)(b) and (c) of the Act.
3. The purpose of this Directive is to outline the position of the Superintendent of Bankruptcy concerning the use of related persons to perform services in the administration of the estates and the costs chargeable to the estate.
(a) All charges incidental to the administration of the estates are subject to the provisions of subsection 26(1) of the Act and shall be included as part of the trustee's remuneration in the Statement of Receipts and Disbursements.
(b) All moneys disbursed by the trustee for services provided by related persons shall be claimed as a disbursement and shall be shown as a separate item in the final Statement of Receipts and Disbursements.
5. The reporting of expenses as disbursements and the payment from estate funds for services by related persons without previously obtaining permission from the court contravenes Rule 58(1).
Costs chargeable to the Estate as Disbursements
6. The trustee is entitled to claim as a disbursement, the actual cost incurred in the administration of an estate.
7. Possible disbursements may include:
(a) travel expenses:
i) if public transportation is used, the actual cost, and
ii) if the trustee or the trustee's employees use their private vehicle, reimbursement at a reasonable rate (rate usually paid by employer);
(b) hotel and meal allowances;
(c) long distance telephone calls, including facsimile, at the actual amount charged;
(d) charges for notices and documents to creditors, at an amount not exceeding 50 cents per page;
(e) photocopies, other than those claimed in the preceding paragraph, at an amount not exceeding 50 cents each;
(f) bank service charges; and
(g) storage costs for items other than those referred to under subsection 68(1) of the Rules and in special circumstances where the quantity of the records has resulted in unusually high costs.
8. If the costs in subsections 7 (a) and (b) above relate to more than one estate, the total cost must be divided equally amongst all of the related estates.
9. The trustee may claim as a disbursement the actual costs paid for:
(a) taking possession;
(b) inspecting assets;
(c) delivering assets;
(e) investigatory audit;
(f) updating of accounting books and records; and
(g) other similar expenses
if the amount paid was made to a person dealing at arm's length.
10. The list of expenses appearing under sections 7 and 9 is not exhaustive, these being the principal expenses requiring clarification.
11. If the work was performed by a related person, the cost must be claimed as a disbursement.
Costs not chargeable to the Estate as Disbursements
12. If the work was performed by the trustee, the cost must be included in the remuneration of the trustee and not claimed as a disbursement.
13. The following costs may not be claimed as disbursements by the estate and/or in the Statement of Receipts and Disbursements as these are overhead costs or costs for "the facilities of the trustee" as defined in Rule 58(3):
(a) office equipment and furniture;
(b) telephone system, including special features;
(c) cellular telephones;
(d) use of office computer equipment, software programs, Internet and other electronic means;
(e) general costs of administration for the office (i.e. rent, insurance, electricity, etc.);
(f) stationery and office supplies;
(g) the cost to the trustee's office to finance the cost of work-in-progress or estate administration; and
(h) storage cost for books, records and documents relating to the administration of the estate as defined under subsection 68(1) of the Rules.
14. There shall be no charges in the Final Statement of Receipts and Disbursements for unforeseen costs or provisions for future costs unless they are shown under specific charges.
Coming into force
15. This Directive comes into force on September 18, 2009.
16. For any questions pertaining to this Directive, please contact your local OSB office.
Superintendent of Bankruptcy
Important notice: The XHTML version of this Directive is not the official version. In the event of an inconsistency between the XHTML and PDF versions of this Directive, the PDF version prevails. Users are required to exercise due diligence with respect to the XHTML version.
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