Draft Trustee Electronic Recordkeeping Directive
1. In this Directive,
“Act” means the Bankruptcy and Insolvency Act;
“conversion” means the process of changing a record from one medium to another or from one form to another;
“digitization” means the conversion of information that exists in print or paper form to digital or electronic form, resulting in the content being made available electronically;
“electronic estate record” means an estate record originally or subsequently generated in digital or electronic form, resulting in the content being made available electronically;
“electronically readable format” means information supported by a system capable of producing an accessible and useable copy;
“electronic recordkeeping system” means a system used to generate, collect, classify, store, retain and otherwise process electronic estate records;
“estate records” means the books, records and documents of the administration of each estate under subsection 26(1) of the Act;
“paper-source estate record” means an estate record originally created or subsequently generated in print or paper form; and
“Rules” means the Bankruptcy and Insolvency General Rules.
2. This Directive is issued pursuant to the authority of paragraphs 5(4)(b), (c) and (e) of the Act.
Purpose and Scope
3. This Directive specifies the conditions, principles and minimum requirements for electronic recordkeeping by trustees to assist them in complying with their administrative and legal requirements to keep estate records under the Act, without dictating the types of technology required.
4. This Directive applies to trustees and administrators, as defined in section 66.11 of the Act, who are required to keep estate records under the Act. For ease of reading, the term “trustee” in this Directive is to be read as including an administrator.
5. This Directive shall be read in conjunction with Directive 17, Retention of Documents by the Trustee, and Directive 5R4, Estate Funds and Banking.
6. This Directive shall be applied in conjunction with the requirements imposed by other statutes, whether federal, provincial/territorial or municipal, to maintain adequate books and records.
Retention Principles for Estate Records
7. A trustee shall keep estate records in a manner that will ensure the accessibility, authenticity, integrity,Footnote 1 reliability, readability and perennity of the information recorded therein.
8. Estate records may be disposed of after the appropriate retention period has expired pursuant to the prescribed Rules.
9. Subject to the allowable fees and disbursements under the Act and Rules, the costs associated with the retention of estate records shall not be charged to the estate.
Retention Principles for Electronic Estate Records
10. A trustee who digitizes a paper-source estate record shall ensure that the resulting electronic estate record is an intelligible, electronically readable reproduction of that document. The conversion must not result in a loss, destruction or alteration of information and data relevant to the estate record.
11. Without limiting paragraph 10 of this Directive, a trustee who keeps estate records electronically shall ensure:Footnote 2
- the electronic estate records are retained in a format that does not change the information contained in the electronic estate records that was originally made, sent or received;
- the information in the electronic estate records is readable and perceivable by any person who is entitled to access or require the production of electronic estate records; and
- if electronic records are sent or received, any information that identifies the origin and destination of the electronic estate record, and the date and time when it was sent or received, is also retained.
12. The trustee shall ensure electronic estate records are accessible and intelligible at all times and shall produce electronic estate records for inspection when required under the Act, regardless of where the electronic estate records are located and how they are stored, classified or indexed.
Electronic Recordkeeping System Requirements
13. Prior to using an electronic recordkeeping system, a trustee shall submit to the Designated Senior Bankruptcy Analyst an attestation, as provided in Appendix A of this Directive.
14. A trustee shall store electronic estate records in a secure electronic recordkeeping system that includes adequate controls to safeguard the accessibility, authenticity, integrity, reliability, readability and perennity of the electronic estate records processed and kept in that system, including, at a minimum, the following features:
- user authentication and permission controls;
- firewall and virus protection;
- disaster recovery and business continuity;
- audit trail capability to detail user access and alterations;
- system backups; and
- quality assurance.
15. Without limiting paragraph 14(d) of this Directive, audit trails shall contain sufficient information to provide evidence of the authenticity of stored electronic estate records, including information about changes to the electronic estate records stored on the system, the person(s) responsible for initiating and carrying out the functions, and the date and time of events.
16. Without limiting paragraph 14(e) of this Directive, a trustee shall ensure that procedures are in place to back up electronic estate records on a daily basis and shall ensure that backed up copies of electronic estate records are stored in a secure off-site location.
17. The Designated Senior Bankruptcy Analyst may revoke a trustee’s ability to use an electronic recordkeeping system at any time for non-compliance with this Directive.
Disposal of Digitized Paper-Source Estate Records
18. Subject to paragraphs 19 and 20 of this Directive, a trustee may dispose of paper-source estate records that have been digitized and stored in a secure electronic recordkeeping system in accordance with this Directive.
19. A trustee shall not dispose of the paper-source estate record after digitization until satisfied that no system failure will result in the loss of the digitized document.
20. Regardless of digitization, pursuant to subsection 26(1) of the Act, a trustee shall not dispose of the original signed copy of all minutes, proceedings had, and resolutions passed at any meeting of creditors or inspectors until the appropriate retention period has expired pursuant to the prescribed Rules.
21. A trustee shall document the disposal of a paper-source estate record when proof of destruction is warranted or required based on business, legal and audit requirements.
External Service Providers
22. Where a trustee uses an external service provider to carry out all or part of the functions of the electronic recordkeeping system, the trustee shall be responsible for ensuring that the external service provider complies with this Directive, which shall be specified in any contractual document between the trustee and the external service provider.
23. A trustee is not relieved of his or her responsibilities under this Directive because of the use of an external service provider to carry out all or part of the functions of the electronic recordkeeping system.top of page
Name of trustee:
- I attest that my electronic recordkeeping system is in compliance with the directive on Trustee Electronic Recordkeeping, and other legislation related to document retention.
- I attest that my electronic recordkeeping system has been verified and approved by an Information Technology (IT) expert:
Name: [insert name of IT expert or software provider]
- I attest that my electronic recordkeeping system includes, at a minimum, the following features:
User authentication and permission controls
Firewall and virus protection
Disaster recovery and business continuity
Audit trail capability to detail user access and alterations
Declaration and Signature
I, the undersigned, do solemnly declare that I am the trustee named in this attestation and that the information set out in this attestation is correct and complete in all respects.
Signature of trustee:
Dated at , this day of 20.
Date of receipt of the attestation and declaration by the Office of the Superintendent of Bankruptcy:
Dated at , this day of 20.
- 1 The integrity of a document is ensured if it is possible to verify that the information it contains has not been altered and has been maintained in its entirety, and that the medium used provides stability and the required perennity to the information. (back to footnote reference 1)
- 2This is in accordance with section 37 of the Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5). (back to footnote reference 2)