Federal Law–Civil Law Harmonization Act, No. 2 (S.C. 2004, c. 25)
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Assented to 2004-12-15
PART 1AMENDMENTS TO CERTAIN ACTS
R.S., c. B-3; 1992, c. 27, s. 2Bankruptcy and Insolvency Act
Marginal note:1992, c. 27, s. 32(1)
41. Paragraph 66.33(b) of the Act is replaced by the following:
(b) the day on which the first application, if any, for a bankruptcy order in respect of that consumer debtor was filed.
Marginal note:1992, c. 27, s. 32(1)
42. The portion of subsection 66.34(1) of the English version of the Act before paragraph (a) is replaced by the following:
Marginal note:Certain rights limited
66.34 (1) If a consumer proposal has been filed in respect of a consumer debtor, no person may terminate or amend any agreement with the consumer debtor, or claim an accelerated payment, or a forfeiture of the term, under any agreement with the consumer debtor, by reason only that
Marginal note:1992, c. 27, s. 36(1)
43. Paragraph 69.2(4)(b) of the English version of the Act is replaced by the following:
(b) in the case of a security for a debt that does not become due until more than six months after the date of the approval or deemed approval of the consumer proposal, that right shall not be postponed for more than six months from that date, unless all instalments of interest that are more than six months in arrears are paid and all other defaults of more than six months standing are cured, and then only so long as no instalment of interest remains in arrears or defaults remain uncured for more than six months, but, in any event, not beyond the date at which the debt secured by the security becomes payable under the instrument or act, or law, creating the security.
Marginal note:1992, c. 27, s. 37; 1997, c. 12, ss. 66(F), 67
44. Sections 70 and 71 of the Act are replaced by the following:
Marginal note:Precedence of bankruptcy orders and assignments
70. (1) Every bankruptcy order and every assignment made under this Act takes precedence over all judicial or other attachments, garnishments, certificates having the effect of judgments, judgments, certificates of judgment, legal hypothecs of judgment creditors, executions or other process against the property of a bankrupt, except those that have been completely executed by payment to the creditor or the creditor’s representative, and except the rights of a secured creditor.
Marginal note:Costs
(2) Despite subsection (1), one bill of costs of a barrister or solicitor or, in the Province of Quebec, an advocate, including the executing officer’s fees and land registration fees, shall be payable to the creditor who has first attached by way of garnishment or lodged with the executing officer an attachment, execution or other process against the property of the bankrupt.
Marginal note:Vesting of property in trustee
71. On a bankruptcy order being made or an assignment being filed with an official receiver, a bankrupt ceases to have any capacity to dispose of or otherwise deal with their property, which shall, subject to this Act and to the rights of secured creditors, immediately pass to and vest in the trustee named in the bankruptcy order or assignment, and in any case of change of trustee the property shall pass from trustee to trustee without any assignment or transfer.
Marginal note:1997, c. 12, s. 68(F)
45. Subsection 72(2) of the Act is replaced by the following:
Marginal note:Operation of provincial law re documents executed under Act
(2) No bankruptcy order, assignment or other document made or executed under the authority of this Act shall, except as otherwise provided in this Act, be within the operation of any legislative enactment in force at any time in any province relating to deeds, mortgages, hypothecs, judgments, bills of sale, chattel mortgages, property or registration of documents affecting title to or liens or charges on real or personal property or immovables or movables.
46. (1) Subsection 73(1) of the English version of the Act is replaced by the following:
Marginal note:Purchaser in good faith at sale protected
73. (1) An execution levied by seizure and sale of the property of a bankrupt is not invalid by reason only of its being an act of bankruptcy, and a person who purchases the property in good faith under a sale by the executing officer acquires a good title to the property against the trustee.
(2) Subsection 73(2) of the Act is replaced by the following:
Marginal note:Executing officer to deliver property of bankrupt to trustee
(2) If an assignment or a bankruptcy order has been made, the executing officer or other officer of any court or any other person having seized property of the bankrupt under execution or attachment or any other process shall, on receiving a copy of the assignment or the bankruptcy order certified by the trustee as a true copy, immediately deliver to the trustee all the property of the bankrupt in their hands.
(3) Subsection 73(3) of the English version of the Act is replaced by the following:
Marginal note:In case of executing officer’s sale
(3) If the executing officer has sold the property or any part of the property of a bankrupt, the executing officer shall deliver to the trustee the money so realized less the executing officer’s fees and the costs referred to in subsection 70(2).
Marginal note:1997, c. 12, s. 69(F)
(4) Subsection 73(4) of the Act is replaced by the following:
Marginal note:Effect of bankruptcy on seizure of property for rent or taxes
(4) Any property of a bankrupt under seizure for rent or taxes shall on production of a copy of the bankruptcy order or the assignment certified by the trustee as a true copy be delivered without delay to the trustee, but the costs of distress or, in the Province of Quebec, the costs of seizure are a security on the property ranking ahead of any other security on it, and, if the property or any part of it has been sold, the money realized from the sale less the costs of distress, or seizure, and sale shall be paid to the trustee.
Marginal note:1997, c. 12, s. 70; 2001, c. 4, s. 28(F)
47. Sections 74 to 76 of the Act are replaced by the following:
Marginal note:Registration of bankruptcy order or assignment
74. (1) Every bankruptcy order, or a true copy certified by the registrar or other officer of the court that made it, and every assignment, or a true copy certified by the official receiver, may be registered by or on behalf of the trustee in respect of the whole or any part of any real property in which the bankrupt has any interest or estate, or in respect of the whole or any part of any immovable in which the bankrupt has any right, in the registry office in which, according to the law of the province in which the real property or immovable is situated, deeds or transfers of title and other documents relating to real property, an immovable or any interest or estate in real property or any right in an immovable may be registered.
Marginal note:Effect of registration
(2) If a bankrupt is the registered owner of any real property or immovable or the registered holder of any charge, the trustee, on registration of the documents referred to in subsection (1), is entitled to be registered as owner of the real property or immovable or holder of the charge free of all encumbrances or charges mentioned in subsection 70(1).
Marginal note:Caveat may be filed
(3) If a bankrupt owns any real property or immovable or holds any charge registered in a land registry office or has or is believed to have any interest, estate or right in any of them, and for any reason a copy of the bankruptcy order or assignment has not been registered as provided in subsection (1), a caveat or caution may be lodged with the official in charge of the land registry by the trustee, and any registration made after the lodging of the caveat or caution in respect of the real property, immovable or charge is subject to the caveat or caution unless it has been removed or cancelled under the provisions of the Act under which the real property, immovable, charge, interest, estate or right is registered.
Marginal note:Duty of official
(4) Every official to whom a trustee tenders or causes to be tendered for registration any bankruptcy order, assignment or other document shall register it according to the ordinary procedure for registering within the official’s office documents relating to real property or immovables.
Marginal note:Law of province to apply in favour of purchaser for value
75. Despite anything in this Act, a deed, transfer, agreement for sale, mortgage, charge or hypothec made to or in favour of a bona fide purchaser, mortgagee or hypothecary creditor for adequate valuable consideration and covering any real property or immovable affected by a bankruptcy order or an assignment under this Act is valid and effectual according to the tenor of the deed, transfer, agreement for sale, mortgage, charge or hypothec and according to the laws of the province in which the property is situated as fully and effectually and to all intents and purposes as if no bankruptcy order or assignment had been made under this Act, unless the bankruptcy order or assignment, or notice of the order or assignment, or caution, has been registered against the property in the proper office prior to the registration of the deed, transfer, agreement for sale, mortgage, charge or hypothec in accordance with the laws of the province in which the property is situated.
Marginal note:Property not to be removed from province
76. No property of a bankrupt shall be removed out of the province in which the property was at the date when the bankruptcy order or assignment was made, without the permission of the inspectors or an order of the court in which proceedings under this Act are being carried on or within the jurisdiction in which the property is situated.
Marginal note:1997, c. 12, s. 71
48. Section 80 of the Act is replaced by the following:
Marginal note:Protection of trustee
80. If the trustee has seized or disposed of property in the possession or on the premises of a bankrupt without notice of any claim in respect of the property and after the seizure or disposal it is made to appear that the property, at the date of the bankruptcy, was not the property of the bankrupt or was subject to an unregistered security or charge, the trustee is not personally liable for any loss or damage arising from the seizure or disposal sustained by any person claiming the property, interest in property or, in the Province of Quebec, a right in property, or for the costs of proceedings taken to establish a claim to that property, interest or right, unless the court is of opinion that the trustee has been negligent with respect to the trustee’s duties in relation to the property.
Marginal note:1992, c. 27, s. 38(1)
49. (1) The portion of subsection 81.2(1) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Cas des agriculteurs, des pêcheurs et des aquiculteurs
81.2 (1) Par dérogation à toute autre loi ou règle de droit fédérale ou provinciale, la réclamation de l’agriculteur, du pêcheur ou de l’aquiculteur qui a vendu et livré à un acheteur des produits agricoles, aquatiques ou aquicoles destinés à être utilisés dans le cadre des affaires de celui-ci est garantie, à compter de la date visée aux sous-alinéas a)(i) ou (ii), par une sûreté portant sur la totalité du stock appartenant à l’acheteur ou détenu par lui à la même date; la sûreté a priorité sur tout autre droit, sûreté, charge ou réclamation — peu importe sa date de naissance — relatif au stock de l’acheteur, sauf sur le droit du fournisseur à la reprise de possession de marchandises aux termes de l’article 81.1; la garantie reconnue par le présent article n’est valable que si, à la fois :
Marginal note:1992, c. 27, s. 38(1)
(2) The portion of subsection 81.2(1) of the Act after paragraph (d) is replaced by the following:
the claim of the farmer, fisherman or aquaculturist for the unpaid amount in respect of the products is secured by security on all the inventory of or held by the purchaser as of the day referred to in subparagraph (b)(i) or (ii), and the security ranks above every other claim, right, charge or security against that inventory, regardless of when that other claim, right, charge or security arose, except a supplier’s right, under section 81.1, to repossess goods, despite any other federal or provincial Act or law; and if the trustee or receiver, as the case may be, takes possession or in any way disposes of inventory covered by the security, the trustee or receiver is liable for the claim of the farmer, fisherman or aquaculturist to the extent of the net amount realized on the disposition of that inventory, after deducting the cost of realization, and is subrogated in and to all rights of the farmer, fisherman or aquaculturist to the extent of the amounts paid to them by the trustee or receiver.
Marginal note:1992, c. 27, s. 38(1); 1997, c. 12, s. 72(F)
(3) The definitions “aquaculturist” and “farmer” in subsection 81.2(2) of the English version of the Act are replaced by the following:
“aquaculturist”
« aquiculteur »
“aquaculturist” includes the owner, occupier, lessor and lessee of an aquaculture operation;
“farmer”
« agriculteur »
“farmer” includes the owner, occupier, lessor and lessee of a farm;
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