Directive No. 20
Coming into force September 18, 2009
Bankruptcy Assistance Program
Issued: August 14, 2009
(Supersedes Directive No. 11 issued on July 23, 1993, on the same topic)
- In this Directive,
- "Act" means the Bankruptcy and Insolvency Act;
- "BAP" means the Bankruptcy Assistance Program;
- "OSB" means the Office of the Superintendent of Bankruptcy;
- "Out-of-pocket expenses" refers to the expenses delineated in subsection 128(2) of the Rules;
- "Rules" means the Bankruptcy and Insolvency General Rules.
Authority and Purpose
- This Directive is issued pursuant to the authority of paragraph 5(4)(c) of the Act.
- The purpose of this Directive is to set out the framework of a program that will permit a debtor who has insufficient funds to cover the cost of an administration of a bankruptcy to have access to the bankruptcy system. This Directive sets out the procedure and criteria for eligibility.
- Debtors initially contacting the OSB for advice relative to their financial affairs will be provided with a list of trustees participating in the BAP.
- If unable to obtain the services of a trustee after consulting at least two (2) trustees, or the sole trustee in the area where there is only one trustee, the debtor may again contact the OSB if the debtor considers that bankruptcy remains a potential solution. At such time, a registration form detailing the debtor's name, address and telephone number and the name(s) of trustee(s) previously contacted will be prepared.
- On a rotational basis, the designated Bankruptcy Analyst will deliver the registration form to a participating trustee, who becomes the designated trustee to administer the assignment.
- The debtor will contact the trustee designated by the designated Bankruptcy Analyst in order to fully discuss the alternatives to bankruptcy and the consequences of declaring bankruptcy or making a proposal.
- Provided that the debtor is eligible for the BAP pursuant to sections 14 and 15 below, and decides to declare bankruptcy, the designated trustee will prepare the necessary documentation for the filing of the assignment.
- If the assignment is not filed within thirty (30) days of the debtor's assessment, the trustee is obliged to report this fact to the designated Bankruptcy Analyst. In remote geographical areas, a slightly longer period of time may be acceptable, subject to the approval of the designated Bankruptcy Analyst.
- Trustees must be available for service throughout the entire year and agree to ensure that files accepted under the BAP will receive the same level of service as similar files accepted outside of the program.
- The application for a bankrupt's discharge is not to be delayed due to the lack of full payment of a trustee's fee. Trustees, however, are entitled to payment in full of their out-of-pocket expenses.
- In cases where third-party deposits or guarantees are taken by the trustee, such arrangements must be made in accordance with Directive No. 16, Third-Party Deposits and Guarantees.
- If the debtor does not meet with the trustee at the trustee's office or does not proceed with an assignment after the assessment, the designated trustee will return the registration form indicating the reasons for the non-assignment to the OSB.
- Following attempts to secure the services of a trustee, insolvent individuals wishing to make an assignment in bankruptcy and who contact the OSB may be accepted into the BAP, except individuals:
(a) who are incarcerated;
(b) who were previously or are currently involved in commercial activities where the administration of the bankruptcy could give rise to an appreciable amount of administrative or investigative work for the trustee; or
(c) who are required to make surplus income payments in accordance with the Directive No. 11R2, Surplus Income.
- Where a debtor’s income increases after being accepted into theBAP, the debtor will be required to make payments on the surplus income where required pursuant to the Directive No. 11R2, Surplus Income.
- A participating trustee, once designated, must agree to accept and process assigned eligible debtors except in those situations where the trustee will be in a conflict of interest. For the purpose of this Directive, conflicts of interest shall be governed by the applicable provisions of the Act and the Rules.
- All trustees requesting to participate in the BAP will be eligible to do so subject to the following provisions:
a) they fully agree to adhere to all the requirements of the BAP;
b) new trustees requesting to participate in the BAP will be added to the list of participating trustees every January 1 and July 1;
c) any trustee withdrawing from the BAP, either voluntarily or involuntarily, will not be permitted to return to the program for a period of two (2) years from the withdrawal date. Subsequent readmittance into the program would be at the discretion of the designated Assistant Superintendent; and
d) should any trustee withdraw from the program due to exceptional circumstances (e.g. sickness), the designated Assistant Superintendent would decide as to when the trustee would be admitted back into the BAP.
- To prevent undue advantage to any participating trustee, periodic rearrangement of the trustee list will be made by the OSB.
- Trustees participating in the program, subject to section 21 of this Directive, shall be resident trustees having a principal office unless bankruptcy service is otherwise unavailable in a particular area.
- Only one name for each trustee office will be permitted in the listing. A non-resident trustee may be listed as a participating trustee in areas not served by a resident trustee.
- Trustees not complying with the spirit or conditions of the BAP may see their name deleted from the list of participating trustees by the Superintendent of Bankruptcy.
Coming into Force
- This Directive comes into force on September 18, 2009.
- For any questions pertaining to this Directive, please contact your local OSB office.
Superintendent of Bankruptcy
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