What rights and recourses do creditors have in a bankruptcy?
The Bankruptcy and Insolvency Act (BIA) allows an honest but unlucky debtor to find a way back to financial health. Through this process, debtors can be freed of their financial burden as long as they respect their obligations under the Act.
But what about the creditors in this situation? What are their options, rights and recourses in a bankruptcy proceeding?
Notice of bankruptcy – Creditor status
You’ve just received a bankruptcy notice for one of your clients; what should you do?
In response to the filing of an assignment of a debtor into bankruptcy, the Licensed Insolvency Trustee (LIT) must send you a notice of bankruptcy. Attached to it will be a list of creditors, with the respective amounts they are owed. You will receive several documents from the LIT. It is essential that you review them and fill out the proof of claim form.
You must submit the proof of claim form to the LIT. The document includes the details of your claim, as follows:
- An up-to-date account statement
- Supporting documents and details of the debt
- The nature of your claim
- A document proving the security, such as a mortgage on an instalment-sale contract (in the case of a secured claim)
Once your claim has been produced and accepted by the LIT, you will be granted creditor status in the bankruptcy. This preliminary step is essential to:
- Receive dividends, if any
- Vote at a meeting of creditors
- Access other creditors’ proofs of claim
- Receive additional information from the LIT
Once your claim has been accepted, you will be able to obtain information about the administration of assets.
First meeting of creditors
Creditor meetings vary depending on the type of bankruptcy: summary or ordinary. In the case of a summary bankruptcy, a creditor meeting is not held automatically; while it is for ordinary bankruptcies.
When a creditor meeting is held, you can:
- Obtain additional information about the affairs of the bankrupt and the cause of insolvency
- Review the LIT’s preliminary report on the management of the bankruptcy
- Ask questions of the bankrupt and the LIT
- Confirm the appointment of the LIT in his or her functions or appoint a replacement
- Provide instructions to the LIT on managing assets
- Name inspectors
- Vote on certain resolutions
Ms. Sylvie Lyons has discussed the first creditor meeting in a previous Solutions Newsletter.
Bankruptcy management
The role of the LIT is to manage the bankruptcy, take possession of seizable assets and realize them. Prior to doing so, the LIT must ensure that federal and provincial exemptions are respected.
Once administration of the bankruptcy has been completed, the LIT must prepare a final report on receipts and expenditures together with a dividend sheet. As a creditor, you will receive the dividends to which you are entitled according to the creditor ranking established by the Act.
Bankrupt’s discharge
Periodically, as part of administration of a personal bankruptcy file, the LIT must prepare and submit a bankruptcy discharge report. This report must include the following information:
- The affairs of the bankrupt
- The causes of the bankruptcy
- The manner in which the bankrupt fulfilled his or her obligations as imposed under the current law, or obeyed the orders of the Court
- His or her conduct before and after the date of the initial bankruptcy event
- Any conviction for an offence committed under the current Act
- Any other facts, incidents or circumstances that would justify the court to refuse an unconditional order of discharge
In light of this report and your analysis of the bankruptcy, you can, as a creditor, choose to oppose or accept the bankruptcy discharge
Opposing a bankruptcy discharge
As a creditor, you have the right to oppose an automatic bankruptcy discharge of the debtor if you deem he or she has not acted correctly. To do this, you must provide a notice to the bankrupt and the trustee including the reasons justifying your opposition.
It is not enough to raise reasons for opposition; you have the burden of proof before the court, with supporting evidence and arguments, that the reasons for opposition you raise are valid and well-founded.
When it makes a decision, the court will take into account the conduct of the debtor, the potential recovery of his or her finances, as well as the rights of creditors.
The court may:
- Order an absolute discharge of the bankrupt, even if opposition is raised
- Order the bankrupt to pay an additional amount of money to the bankruptcy estate
- Suspend the bankruptcy discharge for a set amount of time
- In exceptional cases, refuse the bankruptcy discharge
Non-dischargeable debt
Article 178 of the Bankruptcy and Insolvency Act provides an exhaustive list of debts that are not discharged following a discharge order. The most common are arrears in alimony; fines or penalties imposed by a court; as well as student loans, if studies have been completed less than seven years previously.
If your debt is among the types listed in the law, you can pursue your recovery efforts once the LIT is released from managing the bankruptcy.
Ginsberg Gingras professionals are at your service
As licensed insolvency trustees we can help you and guide you in the process. For any questions related to creditors’ rights and recourse, please contact a Ginsberg Gingras professional.