Proceedings of the Standing Senate Committee on
Banking, Trade and Commerce
Issue 23 - Evidence, June 4, 2003
OTTAWA, Wednesday, June 4, 2003
The Standing Senate Committee on Banking, Trade and Commerce met this day at 4:05 p.m. to examine on the
administration and operation of the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act.
Senator E. Leo Kolber (Chairman) in the Chair.
The Chairman: Good afternoon, ladies and gentlemen. The Committee on Banking, Trade and Commerce is
meeting today to continue its examination of the Bankruptcy and Insolvency Act and the Companies' Creditors
Arrangement Act. Our first witnesses are from the Canadian Bar Association.
Welcome. It is a pleasure to have you here. I understand that two of your members will be making opening
Senator Kelleher: Honourable senators, before we start, I would like it noted for the record that two of the
gentlemen appearing before us today from the Canadian Bar Association are partners of mine.
The Chairman: This is a fact-finding meeting and you have no conflict of interest.
Senator Kelleher: I know that. There will be no charge.
Ms. Tamra L. Thomson, Director, Legislation and Law Reform, Canadian Bar Association: Honourable senators, the
Canadian Bar Association is very pleased to have the opportunity to appear before the Banking Committee today to
make its comments on the five-year review of the Bankruptcy and Insolvency Act and the CCAA.
The Canadian Bar Association is a national association that represents over 38,000 jurists across Canada. Among
our primary objectives are improvements in the law and in the administration of justice. From that point of view, we
have made the written submission that you have received and with which we make our oral statements today.
The introductory comments will be relatively brief. I will ask Mr. Cohen to address the corporate insolvency and
reorganization issues with the assistance of Mr. Shea. Mr. Klotz will address the personal bankruptcy and insolvency
issues, and then we will be pleased to take questions.
Before passing the floor to Mr. Cohen, I would like to say that the bankruptcy and insolvency law section of the
Canadian Bar Association has long taken an interest in the issues related to bankruptcy and insolvency reform. This is
not the first exercise in reform where we have appeared before this committee. The comments build on those past
submissions and, indeed, are the result of consultations with section members across the country.
I will now ask Mr. Cohen to address the commercial insolvency issues.
Mr. David F. W. Cohen, Chair, National Bankruptcy and Insolvency Law Section, Canadian Bar Association: Thank
you, senators, for having us here today. I will first address the corporate insolvency and reorganization submissions for
the Canadian Bar Association. It is important, as a preface to our submissions, to note that the Canadian Bar
Association's goals in making these submissions are, broadly speaking, focused primarily on four issues. Those are
accessibility of the legislation, fairness, efficiency and certainty.
Reference to these four touchstones of accessibility, fairness, efficiency and certainty in reviewing the Canadian
federal liquidation and reorganization regimes is critical to formulating amendments and revisions to those regimes
that enhance the utility and functionality of our system, both domestically and abroad.
Our written submissions on the corporate matters today will deal with five points, which are submitted to you in
writing. We will not deal with them all in our introduction. The first are priority issues, which give way to issues of
fairness. The second is the participation, or what we call governance, issues, which give rise to issues of accessibility
and fairness competing with the issues of efficiency. The third is cross-border insolvency, which gives rise to
accessibility and certainty issues; debtor-in-possession financing, which focuses on issues of efficiency and certainty,
and interim receivership, which gives rise to issues of accessibility driven by uncertainty and fairness.
I would like to give an example of how we have used these touchstones in examining this legislation and
amendments. As an example of the importance of the touchstones, we would like to briefly review our anecdotal
experience in Canada with cross-border lending and insolvency matters. American participants in large reorganization
cases that straddle the Canadian and U.S. systems view the Canadian system as unpredictable, both in fairness and
accessibility. This unpredictability results in uncertainty. This not only has an impact upon American willingness to
participate in the Canadian reorganization regime, but also, arguably, upon American willingness to contribute to and
participate in Canadian debt and equity markets. Canadian credit capital markets are dominated by mainstream
institutional lenders. That is, there are fewer non-bank sources of capital in Canada than in the United States, even on
a relative size basis. We are speaking here of sources of private capital, such as venture capital. The importance of
attracting this capital to Canadian markets should not be underestimated and should be incorporated into the Senate
review in these circumstances. Structural barriers to a flow of capital from the south to the north, and from abroad,
include multiple securities regulation regimes, multiple personal property security regimes, multiple priority regimes,
interprovincial priority regimes and the exercise of open-ended and unpredictable judicial decision-making in
All of these examples arguably impede this flow of capital to the Canadian markets and equally impede the
enhancement and growth of residential and capital markets. The relative scale of the Canadian capital market to its
American counterpart necessitates that Canada have a much more efficient and accessible system than the U.S. in
order to attract, as opposed to discourage, this flow of capital. This capital is needed within the reorganization context
specifically in order to support insolvent companies while they attempt their reorganization. The absence of this type of
capital contributes to more liquidation and less reorganization, in the experience of the CBA members who debated
this issue. We believe that macroeconomic issues such as these should be studied in more detail than to date, and that
the results of these studies should be factored into your deliberations on bankruptcy and insolvency reform. This is just
one example of how the use of these touchstones helps to understand the implications of each proposed amendment.
There are highlights of these recommendations that we wish to specifically draw to your attention.
We recommend the adoption of a wage-earner protection fund, sourced from a levy on employers and employees, to
provide limited relief for unpaid wages in a bankruptcy situation.
We recommend that if Parliament wishes to maintain unpaid suppliers' rights under section 81.1 of the Bankruptcy
and Insolvency Act, that section should be amended to increase the notice period for the exercise of those rights to
make it more effective.
Our recommendations on governance are designed to enhance accessibility to the system, to improve the perception
of independence of court officers and to level the playing field for unsecured creditors as far as access to information
and the ability to organize as a group is concerned. We would refer you to our submissions for more details on the
For cross-border insolvency, we recommend the adoption of the UNCITRAL model law, subject to modifications
we identified in our written submissions.
We concur with the recommendations of the joint task force of the Insolvency Institute of Canada and the Canadian
Association of Insolvency and Restructuring Professionals for the codification of debtor-in-possession financing, to
entrench the right to DIP financing, when certain tests are made, in the legislation. However, we diverge from the joint
task force submissions in that we believe that DIP financing should be available to both large and small companies,
and therefore, those rights should be entrenched in the Bankruptcy and Insolvency Act in addition to the Companies'
Creditors Arrangement Act.
Because of the divergent interim receivership practices across Canadian insolvency jurisdictions, we recommend the
role of the interim receiver be more clearly defined in the act to reflect how the office is being used today. We invite you
to review our corporate submissions and ask questions of us. Mr. Klotz will now introduce our submissions on
personal bankruptcy and insolvency.
Mr. Robert A. Klotz, Executive Member and Past Chair, National Bankruptcy and Insolvency Law Section, Canadian
Bar Association: Honourable senators, for your information, I served as a member of the Personal Insolvency Task
Force under Mr. Goldstein's chairmanship and I congratulate you on choosing him as your adviser. By and large, we
see the task force report as a good one and we adopted many of their proposals in our submission. I will highlight some
we see as important. First, on student loans, we agree with the trustees' organization and Mr. Stehelin, from whom you
have heard, that the current provisions are too harsh. I spoke before you in 1998 and said the same thing. We recognize
the financial concerns that led to the initial reform in this area. We believe that these harsh reforms have led to a new
attitude in the courts and amongst students. It will effectively control the abuse problem if those measures are now
made more reasonable and fairer. We believe the current law is badly designed, because it forces students who might be
eligible for the court's "mercy'' hearing to wait 10 years before having that hearing. To use an analogy, it is like being
sent to jail for 10 years with the right, after serving your time, to have a hearing to see if you should serve the time. That
hearing should be available before, not after. It is a bad design. We said that in 1998, and we say it again. That is why
we agree with the task force report on reducing the ten years down to five, and allowing for a one-year period after
ending studies before the hardship hearing.
We agree with the task force approach to RRSP exemption. The policy goal of retirement saving is a very important
one, as is the policy favouring repayment to creditors. We believe that if money is to be preserved from creditors'
claims for the purpose of retirement saving, then that money should be locked in. The creditors will have the comfort
of knowing that it will indeed be utilized for that socially valuable purpose and the legislation will ensure that the
purpose is fulfilled. We ought not to exempt money that could be treated as a savings account and spent shortly
following bankruptcy. That does not serve any goal.
Anti-collusion control is essential. Without a mandatory clawback, there is no effective remedy to control debtors
who choose to put money towards retirement that should go to unpaid creditors, whether in the form of unpaid taxes,
family law property claims, or general debts incurred shortly before bankruptcy. In our view, it is too easy to make a
blanket RRSP exemption, as has been done in Saskatchewan. What is more difficult, as the task force has attempted to
do, is to design an RRSP savings protection strategy without bringing the system into disrepute because of insufficient
or inadequate anti-collusion controls. We believe the task force recommendations reflect a proper balance, subject to
the minor variations indicated in our submissions.
We agree with the task force proposal to overrule implied reaffirmations, which are agreements that a debt will
survive despite bankruptcy through unconscious or unknowing behaviour. However, we strongly oppose the remaining
recommendation for the reasons set out in the dissent on page 32 of the English version of the task force report. For
your information, that is my dissent. We see no need for the drastic change, which is ill-designed to control the problem
and departs significantly from the ethical underpinnings of our laws.
On international personal insolvency, we see the need for and usefulness of an appropriately crafted remedy where
there is no remedy available to help Canadians who filed for bankruptcy while living in the United States or another
country. This is a labour mobility issue. We should not force them to go bankrupt again when they return to Canada.
The task force recommendation does this effectively, with appropriate safeguards, in our view.
I shall comment briefly on a proposal that is not in our submissions or the task force report, but which has been
raised before you; namely, voidable transactions. We are strongly opposed to any limitation being placed upon the
trustee's right to initiate proceedings under provincial fraudulent conveyance laws. We are also concerned that if
fraudulent preference legislation is amended to set up an effects-based standard, we require significant consultation
and dialogue to ensure that the exceptions to such a test are properly designed to avoid injustice. Our submissions in
this respect mirror those of Mr. Telfer, who made many of the same points.
Our final comments relate to the task force's streamlining proposal, which we support. However, we emphasize the
philosophical importance of maintaining the central role played by the trustee in maintaining public confidence in the
system. If we reduce that role too much or eliminate too many of the formal proceedings in bankruptcy, we will allow
an unacceptable degree of abusive conduct and strategic behaviour to slip through the system. Some of this conduct
does slip through the system in any event. It is essential for the integrity of the system and the confidence of the creditor
community, not to mention the Canadian public, that the trustee plays an active and substantive role in personal
Senator Kelleher: Thank you, gentlemen, for being with us today. I want to ask you about the support for a scheme
for workers' wage protection. We noted that the Colter report in 1986, the advisory committee on adjustment in 1989
and Bill C-22 in 1991 all supported the creation of a wage-earner protection fund as being a fair and administratively
Your specific suggestion is that such a fund be administered under the Employment Insurance regime and that
employees be compensated for up to 90 per cent of wages for one pay period, to a maximum of $2,000. Has anyone
ever bothered to try to determine the cost of such a scheme?
Mr. Cohen: No, senator.
Senator Kelleher: Do you not think that as legislators making recommendations to the government, we should have
some idea of what this would cost before we propose it?
Mr. Cohen: I think the first question for us to consider was whether it was appropriate to have some form of
protection or not, because of wage-earners being captives in insolvent businesses. I think the conclusion drawn by our
section of the Canadian Bar Association, the executive, and the members from across the country who joined us in that
debate, was that they are a class deserving of protection.
In terms of the quantification, we viewed that the source of the funds would be from the employers and the
employees, not from the government coffers, per se. In other words, it is a form of insurance like EI. It is a burden on
the employers and employees, but that sort of imposition of expense is necessary to protect the group that is captive in
the circumstances. We support a quantification of that, absolutely.
Senator Kelleher: Do any of your people have the expertise to take a shot at trying to quantify what this might cost?
Mr. Cohen: We could go back to the labour section of the Canadian Bar Association and work with them to develop
what the costs and expenses of this would be, if the senators wish us to do so.
Senator Kelleher: Mr. Chairman, do you feel that would be helpful?
The Chairman: Certainly.
Mr. Klotz: Senator Kelleher, I am not sure that we would be best suited to do this. We are lawyers, not accountants.
It may be that Industry Canada would be better suited to do this kind of study. We can certainly make the effort, but
one might have some concerns about whether the results would be of interest to the accounting and finance people.
Senator Kelleher: I am aware of the limitations of lawyers. Unfortunately for you, you are here before us, and I
thought I might ask. If you could take a shot at it and come up even with a ballpark figure, it would be helpful to us.
The Chairman: Apropos your suggestion of a fund, would that not appear to the public to be an additional tax?
Mr. Cohen: It probably would. Anything that the public has to pay is probably perceived as an additional tax.
The Chairman: I think we would have trouble recommending that. I only speak for myself.
Senator Kelleher: A number of stakeholders who have come before us have already suggested that we consider
recommending legislation that would require the monitor in a CCAA reorganization to be someone other than the
debtor's auditor. Others have suggested that, in the interests of saving possibly substantial sums of money, the auditor
of the debtor is the person best suited to be the monitor because the auditor already has significant knowledge of the
Do you consider that this knowledge on the part of a company's auditor is sufficiently useful to warrant allowing
that auditor to be the monitor?
Mr. Cohen: I hate to say it depends. We approached the issue by saying that the monitor has to observe a standard
of independence. If the monitor believes that he could not maintain independence because he was the auditor, he
should excuse himself and avoid acting in those circumstances. However, if, in the circumstances, he believes it is in the
best interests of everybody and nobody can come to the table with a viable challenge, then the Canadian Bar
Association is not suggesting that the auditor be excluded as a monitor.
Senator Kelleher: We note that you recommend adoption of the UNCITRAL model law with respect to cross-
border insolvency proceedings, subject to certain reservations. Your recommendation appears to indicate that it should
be adopted as part of the Bankruptcy and Insolvency Act, but you do not appear to recommend that it also be adopted
with respect to the CCAA, only that provisions be coordinated within the CCAA. Is this intentional, or a typing error?
Mr. Cohen: It is not intended to differentiate between the two.
Mr. E. Patrick Shea, Member, National Bankruptcy and Insolvency Law Section, Canadian Bar Association:
Honourable senators, on page 14 of our report, we recommend the adoption of the UNCITRAL model law as part of
the BIA and/or the CCAA. We leave it open as to whether it becomes part of both pieces of legislation. As we
understand it, it is still open to debate as to whether we will have two pieces of legislation or one.
Senator Kelleher: Assuming we end up with two, would you be recommending that it become part of both?
Mr. Shea: It should become part of the Canadian insolvency process. If the entire section is included in the BIA,
then reference should be made to that section in the CCAA, so that we have parallel provisions in both laws.
The Chairman: I am informed that Human Resources Development Canada has some costing figures on what you
were asking about before. Either we can call them or you can call them.
Senator Kroft: Good afternoon. I listened carefully to your introductory comments and was interested in your
exhortation to us to put these specific pieces of legislation into a broader economic context. I thank you for your
suggestion that we look at them to see whether they are helpful in the gathering of capital and the general workings of
our economy. It is useful for us to be reminded sometimes where these issues fit in that broad economic context.
I also listened carefully to the comments on the view in the United States of the uncertainties inherent in,
particularly, the CCAA and larger bankruptcies. It is an important area that is of particular interest to me. Chapter 11
processes in the U.S. are pointed to as being a better guideline. The last point was about dealing with contracts with
Rather than going to one of your specific suggestions, I would ask you to elaborate on the 22 paragraphs of the
CCAA and the latitude and the flexibility that provides to the judge in the circumstance. Obviously the flipside of that
is the uncertainty that you have talked about.
On one day or another we will have one side or the other pointed to as being the advantageous approach. I would be
interested in your observations.
Mr. Cohen: It is important to state that we are not suggesting that chapter 11 is the panacea. In fact, chapter 11
lengthens the process of reorganization in the United States and is a costly way of doing things. While there are no
comparative studies of running a reorganization proceeding in Canada versus the U.S., we suspect that the U.S.
proceedings are much longer. We can take judicial notice of the fact that they are a lot more expensive.
We picked that example because there is some tangible evidence of forum shopping in the insolvency area. Even
within the United States, there is forum shopping between different states. Debtors choose Delaware because the
Delaware bench goes out of its way to appear to be debtor friendly. Even if you have only a tenuous connection to
Delaware, your proceeding would be filed there.
The issue between Canada and the U.S. is different. It is not a matter of selecting where it is debtor friendly,
although I believe that the U.S. chapter 11 proceedings are generally more debtor friendly. People would agree with
The issue between Canada and the U.S. is that we have a much smaller piece of the economic pie in these large
insolvencies, except in the obvious ones such as Air Canada, which is centred here. We have a so much smaller piece
that they would prefer to simply not deal with our system if they could avoid it, rather than try to understand our
system and grasp the nuances of what the judges in Toronto or B.C. might do.
That throws up an immediate barrier to the choice of the Canadian forum over the U.S. forum. That puts Canadian
creditors and the country as a whole on a bad footing vis-à-vis the United States.
To expand on that thought a little more, I will use the anecdote of Little Rock, Arkansas. There is more venture
capital found in Little Rock, Arkansas, than in all of Canada. With that massive pool of money available, the lenders
have a tendency to a broader spectrum of risk.
They are prepared to take more risk in the United States. They are prepared to roll up their sleeves and invest in a
near-insolvent company. They are prepared to invest money and take a turnaround role. There are turnaround
professionals in the United States who have a venture capital fund parallel to their advisory services. The turnaround
specialists put their own money into the company. That makes a difference. That is the real difference between the
Canadian and the U.S. situations.
Senator Kroft: This is intriguing to me. Those people who are engaged in one way or another in issues of bankruptcy
and insolvency are those who are in a position to provide the venture capital to bring about the solution to the
problem? It is a conjoined effort?
Mr. Cohen: The U.S. system has matured to that point. There is excess cash available. They are prepared to assess
the risk, but in order to do that and invest in that business, they participate more heavily in the process. They
understand the process. It is codified. It is clear. They know that they can invest in it, and they will follow a path.
In Canada, they do not have that certainty up front. They do not know what their footing is on the priority of the
initial money that they put in because we do not have entrenched rights to debtor-in-possession financing, for example.
When it is done, we do not have a clear indication of the priority, the test of the priority, the lien that is created in
respect of debtor-in-possession financing.
They will not put their money in at the get-go to save the business. They would not make that decision. That is a loss
to the Canadian economy because the result is that the company languishes or is prematurely liquidated. There are
The Canadian financial institutions do what they do very well. They lend money, and then they try to get the money
back. The lending of their money is not predicated on detailed control of the businesses. They are not involved in the
day-to-day operations. Therefore, when it comes to taking a risk on debtor-in-possession financing, they may not be
the best ones to do it unless they are already halfway into the company through much debt. They would be looking to
make a bad story good.
Senator Kroft: If I can pursue the avenue that you have opened, there may be various factors in applying any public
policy. Fairness and predictability are two. You are putting a very high premium on predictability. You would
presumably be urging us to look at the entire exercise with a view to enhancing the predictability of outcome in our
One of the points you mentioned is the multiple jurisdictional areas, and of course the Americans have 50 to our 13.
You would urge us to look for certainty of outcome in a number of these issues, and presumably at the sacrifice of
I return to the flexibility of the CCAA. What would you have us do to bring more predictability to large bankruptcy
Mr. Cohen: There are suggestions on debtor-in-possession financing in the joint task force report. They have done a
good job of encapsulating the tests of when funding should be available that have evolved in certain jurisdictions in
Canada, certainly in Ontario.
However, there is no certainty. Ontario is becoming the preferred forum for filing because the Ontario courts deal
with that issue in a most sophisticated manner.
Senator Kroft: Judges become the attraction.
Mr. Cohen: Yes. What is different, I think, from some of the submissions that you may have heard, is the people
who make up the Canadian Bar Association, the lawyers who sat around the table, came from every one of these
jurisdictions, from large and small firms, from right across the country. We had representation from coast to coast,
from Newfoundland to British Columbia. There was a divergence of views. It is also the case in interim receivership,
and I will talk about that in a second. "Our courts do this in B.C. We would never get the order that you get in
Ontario.'' Because of that, filings that could or should happen in B.C. because most of the creditors are located there
might in fact happen in Ontario — if there is a sufficient connection to get over the venue tests in, for example, the
Then they say that is prejudicial to the small, unsecured creditors who are sitting in Nanaimo, who cannot appear in
a Toronto court and cannot afford to hire a lawyer in B.C. to instruct a lawyer in Ontario to represent their interests. It
also impedes the ability of those unsecured creditors to organize as a group so that their interests can be properly
In the case of interim receiverships, it is the same issue. Interim receivership orders have evolved in Ontario to be
very broad vehicles. In a recent article that I wrote for the Canadian institute, I called it the
"secured creditors' CCAA''
— the use of the interim receiver to obtain a stay equivalent to a CCAA stay without having to have a creditors' vote.
You can get that order in the court in Toronto. You cannot get that order in Alberta. Lawyers in Alberta lose work
in the process, first of all. That is one point. That is not the thrust of our submissions, but they also lose the ability to
properly represent the interests of the parties outside of Ontario.
Senator Kroft: In the macro picture, it creates uncertainties that make it difficult to obtain capital.
Mr. Cohen: That is right. The Americans, or even Canadians who are making proposals to invest in companies in
Canada, look at it and say, "I cannot invest in something when I do not know whether certainty is attached to the
outcome.'' Or, "I am prepared to take a risk but not an uncalculated risk; and I will not get a lawyer's opinion
calculating that risk with a level of certainty with which I will be comfortable.''
Senator Oliver: The one area in your presentation today that is different from some of the things that you talked
about in your report is your concept of the debtor in possession. Even though the topic is bankruptcy and insolvency,
this committee should be looking at a lot of other things, such as the barriers to venture capital and other capital
coming into Canada to help out at a time of debtor in possession.
GE Capital has come to Canada a number of times to help companies from the United States by providing some
substantial sums at a time of possession — so there are some American lenders already here. Even though this
committee is studying bankruptcy and insolvency, are you saying that in our recommendations, we should look outside
that base at such things as the structure of the securities regulators in Canada?
There is already a blue-ribbon committee struck by the government to do just that, so surely you are not asking us
to duplicate that. How far would you like to see this committee go in making some of these more embracing
recommendations to attract new capital and help out with the debtor-in-possession position?
Mr. Cohen: I think it is not an issue of having to go outside of the sphere. I am suggesting that in the context of
making changes, you at least pay some attention to the economic implications. We can easily get wrapped up in the
very partisan process of whose interests do we protect? Do we protect wage earners or trade suppliers — do we protect
this party or that party? That debate goes on, and it is partisan and very much a division of the pie.
What we do not necessarily do is stand back and ask if this makes us competitive, and we should. When the
Canadian Bar Association reviewed this, we looked at it — and by the way, it is not our mandate either to improve the
Canadian economy — keeping in mind that we hear enough about the inaccessibility of the Canadian system and that
it is held to be suspect. We hear enough about that anecdotally to know that that is something that we do need to
In the context of reviewing what you have before you and the partisan issues, do not lose sight of the fact that you
are making economic decisions about how competitive the Canadian economy will be. In the technology of lending, as
I think you have heard before, things are being streamlined and commoditized below certain dollar levels. The more
accessible we make our economy, and our lending and insolvency scenarios, to those types of commoditized practices,
the more capital our country will attract. I believe that is a significant issue.
The Chairman: Could you try to amplify this a little? I am getting slightly confused. As you have just said, our
mandate here is not to figure out ways of attracting capital; but we have to be quite sure, or almost sure, that the
recommendations we make will alleviate the process. Do you agree that is where we should be coming from?
Senator Oliver: I was just going to ask him that. When you went a little out on the limb, was one of your implicit
concerns that, in bankruptcy and insolvency legislation, we should be looking at new and better ways of trying to save
major Canadian companies, rather than just having them wound up? If there were new and greater pools of venture
capital and other capital coming into Canada — and there were not so many barriers keeping that capital out — would
that, in your opinion, be in Canada's interest?
Mr. Cohen: We believe it would be in Canada's interests. We gave the example of the external capital attraction, but
that is not the only one. It is also internal to the country and the way that the financial institutions in Canada approach
insolvencies. If the system is predictable, we believe it will run more smoothly.
You do not want to delay it. That is the big concern with codifying, that you end up delaying it and the costs are
layered on — and that the Canadian economy cannot support that kind of cost. I do not know that we agree with
leaving it completely open to courts. There are particular areas, such as contractual rights, on which we have not
actually commented in our paper, but on which others have commented to you. The protection or the repudiation of
contractual rights in certain specific circumstances is an important issue. Financing is an important issue. Receivership
is an important issue. All of those issues have to be examined in that context.
Fixing them so that we make our system more attractive to foreign capital improves our domestic situation as well.
Keeping your eye on that ball and making yourself more competitive vis-à-vis the world makes you better internally as
well. I think that is the point.
If you step back and look at it from that perspective, and look at us as one complete system, as opposed to a group
of small, provincial competing systems, that is when you make the breakthrough. That is why, as you said, we went out
on a limb in the introduction. It was quite deliberate, to draw your attention to the fact that for the most part, we have
a relatively parochial and partisan debate going on, and that it needs to be first order, not second order. We have to
step back. That was the reason for it.
Senator Oliver: Senator Kelleher announced that two of you were his partners, trying to ensure there was no
conflict. I have a similar kind of conflict question for you. You recommended that the restriction against practising
lawyers acting as licensed trustees be removed. Are you not concerned that if lawyers are acting as trustees, there will
be a tendency for the lawyer-trustees to act as their own lawyer, thereby removing a level of independence that is
probably healthy for the system?
Mr. Shea: Our recommendation is that, as a matter of licensing, there should be no restriction on a practising lawyer
being able to act as a trustee. We are not advocating in any way a lawyer acting as trustee and as counsel on the same
Senator Oliver: It would be like acting as proctor and lawyer and executor on the same estate.
Mr. Shea: The existing rules that govern lawyers, and the rules that we are proposing for independence of trustees,
would prohibit a lawyer from acting as trustee and lawyer on the same estate. If he were trustee, he would have to
retain independent counsel. It is also important to note that we are not advocating that lawyers could become trustees
without passing the required examinations. Any lawyer wishing to become a trustee would still have to go through the
required course of study and pass the examinations, but there would not be any arbitrary restriction on lawyers acting
Mr. Klotz: Your question ties in with another one of our recommendations. That is, we note that there is a proposal
to increase the consumer proposal limit, perhaps to $250,000. Under the current rules, the trustee cannot use any
money from the estate to hire a lawyer. If we want to encourage a trustee to take legal advice, surely we would not want
him to have to dip into his own pocket.
Senator Moore: Thank you, witnesses, for being here. I wanted to ask about your recommendation that the BIA and
CCAA require that insolvency administrators and the debtor provide full, true and plain disclosure of every material
document that is issued in an insolvency proceeding. We would have thought that, because the insolvency
administrator is an officer of the court, the administrator would already be seized with that obligation.
Are you aware of any specific examples where the insolvency administrator has misled creditors or has not made full
and frank disclosure?
Mr. Cohen: No, and we were not focusing on that as a result of a specific example. We were trying in our submission
to bring certainty to the system through a written standard of conduct in disclosures, just as there is in securities
regulation. You would hope that issuers of securities would also live up to that standard, but it is stated nonetheless. I
believe a stated standard will assist trustees and monitors in attending to and addressing that issue. They can then turn
to the company they act for and say that this is their role and this is the scope of the role and this is the standard to
which they must adhere according to the statute. Frankly, I think it is easier for them, under the circumstances, if that
standard is stated and they can point it out to the debtor.
Senator Moore: I would suggest that the Superintendent of Bankruptcy is in a position to discipline those insolvency
administrators who do not make complete and frank disclosure. Would that disciplinary power not be sufficient?
Mr. Cohen: The superintendent is not in a position to discipline a monitor. Only the court can do that. Technically
speaking, the monitor is not recognized and governed by the superintendent's office. It is not fulfilling a role of trustee
or proposal trustee, so that is a gap.
Mr. Shea: I see the counsel to the committee is reacting. We are trying to say that as the statute currently stands, a
monitor is not required to be a licensed bankruptcy trustee. As a matter of practice, licensed bankruptcy trustees are
appointed as monitors. If a licensed trustee were appointed as a monitor, then certainly the superintendent would have
jurisdiction to discipline the trustee. The legislation, however, is separate and monitors do not have to be licensed
Senator Moore: With respect to personal bankruptcies, we note that while you support the PITF recommendation to
give some protection to RRSPs, you do not support the three-year clawback, preferring two years, or the proposed
Can you give us some indication of how you arrived at two years rather than three? Could you provide us with your
opinion on the possibility of having a one-year clawback?
Mr. Klotz: I will offer some background to that question, but because I was a member of the task force, I will leave it
to Mr. Cohen to give the more specific views. We agreed with the structure of the proposal. We agreed with the
clawback and that it should be for a number of years. We agreed that it is essential to design a cheap, effective remedy
because no appropriate remedy is available now.
We do not want a fraud test. The word "fraud'' does not have a value in this context. We are not trying to say that
anyone who contributes to an RRSP is a fraud artist. We think that is the wrong language. It is a question of policy.
When someone goes bankrupt in the near future, how many years of their RRSP contributions should be paid to
creditors as a matter of policy and justice? That is why we need a specific number of years.
We had divisions within our group. There was division on the task force; the consensus was three. Within the CBA,
the consensus was that two years is probably enough. That is where it stands.
We do not believe that one year is sufficient. You have to remember that the bankrupt has control of the timing. In
almost all cases, 99 per cent, personal bankruptcies are voluntary filings. Petitions in bankruptcy are very rare. The
bankrupt has almost total control of when that bankruptcy is to be filed.
A one-year period would allow a degree of abuse and strategizing; it is too short. Some would say that two years is
two short. On balance, the CBA felt two years was enough. The task force felt three years was enough. No matter what
time period you choose, some people who were in fact not insolvent will contribute at the end of that period. We
suggest that is few. With two years, it is fewer. One year is not enough.
The task force noted some problems with the cap. RRSPs, unlike pensions, can be self-administered. You raise the
spectre of people who invested quite wisely, perhaps in Microsoft in the 1980s, and are able to exempt a multi-million-
dollar RRSP. One might say, "Good for them.'' However, there are creditors who will be hurt. It is important for this
committee to understand, as a philosophical matter, that the public will weigh this provision in the case of a very bad
person who has borrowed money from vulnerable senior citizens. The seniors have had their retirement savings
destroyed, but the bad person with the very large RRSP is protected. It will be very uncomfortable to live with that.
If there is no limit, there is a possibility of this exemption putting the system into disrepute. On the whole, however,
the bar association felt that the artificialities that a cap creates are of concern. We were not convinced that the cap was
appropriate. On the other hand, we felt the cap devised by the task force worked; the numbers it generated were
You might note that the Colter commission — I think in 1986 — recommended a cap of $50,000. The task force cap
is substantially more than that but it has the benefit of being easy to calculate and to apply. It generates fairly
substantial numbers, and we have given examples.
We are not convinced that a cap is necessary, but if one is chosen, this is the way to go. Whether the cap is necessary
or not is really a political judgment on the contempt that might be brought upon the system when we have people with
multi-million-dollar RRSPs facing creditors who have nothing because of the conduct of those bankrupts. That will be
very hard to stomach.
Senator Angus: Good afternoon. Is it fair to say that your various committees and subcommittees represent fully the
insolvency bar? Does the panel generally embrace the practitioners' views, at least?
Mr. Klotz: We have provincial chairs, who reflect the views of their members. In addition, we have consultations
among all our members. The provincial insolvency sections are fairly active.
Senator Angus: I want to follow up on your interchange with Senator Kroft on forum shopping and your comment
that Alberta lawyers, for example, are losing business and so on.
The current Air Canada restructuring process is very high profile, maybe the highest profile situation we have ever
had. A lot of Quebec lawyers are complaining about losing business due to the fact that Air Canada's head office is in
Montreal, and they filed in Ontario. It has become quite a talking point. I have seen it in the media.
Do you have any comments on that? Would that be an example of inappropriate forum shopping?
Mr. Cohen: Without commenting on an active case in which I am personally involved, in which my firm is involved,
and applying it more to a general suggestion —
Senator Angus: It is meant to be a general question, but it is such a good example.
Mr. Cohen: The answer is that in scenarios of large corporate insolvencies of the nature of Air Canada, there may be
strong connections to multiple jurisdictions. It does not have to be the strongest connection, or simply a formal
connection with respect to the incorporating jurisdiction or location of head office. I could be incorporated in
Delaware but carry on all my business in Ontario. An Ontario filing would be more appropriate in those
It is very convenient for people to say, "We have been hard done by because this company was incorporated here,
but the filing went somewhere else.'' The reality is the incorporation is a mere formality. You have to look beyond it to
see where there is another strong physical connection.
Senator Angus: There could be several strong connections, and it could be wholly appropriate in one or more of
Mr. Cohen: Absolutely. That is not the test in the U.S. In the U.S., you can have a plaque on a wall and you are
qualified to file in that state. File first.
Senator Angus: Forgive me if you have covered this ground. I want to get your view on the record. Some witnesses
have suggested that the provisions of the BIA and the CCAA should be all included in one act. Do you have a view on
Mr. Cohen: We do have a view. It is not stated in the report.
Senator Angus: No, I went through it again.
Mr. Cohen: It was discussed broadly. I believe the view of the group would be, and certainly we have discussed it
before coming here, that whether it one or two is a bit of a red herring. They both have to be right for the
circumstances in which they are used. Whether you have two different parts in the same piece of legislation, with
thresholds for large corporate and small corporate entities, or two separate statutes that are properly harmonized, does
not make a significant difference.
Senator Angus: A bit of a red herring?
Mr. Cohen: Yes.
Senator Angus: The other question on which I wanted to get your view, and you have made reference to it, is the
American provisions, chapter 11. You made a lot of comments about cross-border insolvencies and globalization,
where certain industries are very much involved in a number of non-Canadian jurisdictions. I have asked other
witnesses this question. What is your view, or do you have one, on legislating for specific industries such as the airline
industry, or another obviously global industry that is covered already by special statute, so that this issue that we have
seen in the papers lately would not come up? There is so much discretion, it seems, under the present CCAA, that there
is uncertainty and nobody really knows right now what the law is here.
Mr. Cohen: We did not debate it, and it is therefore difficult for us to speak on behalf of the Canadian Bar
Association. From the hypothetical standpoint, I am not sure that it makes a difference.
Mr. Shea: Senator Angus was asking about dealing with an international corporation by enacting special legislation.
One of the practical difficulties with that, from a domestic point of view, is that if, by definition, the company operates
in more than one jurisdiction, then enacting special reorganization legislation in Canada will not prevent that company
from filing in another jurisdiction such as the United States if chapter 11 is more favourable to the company's
reorganization. Then you are in a situation where the company has filed in the United States and has creditors in the
United States, so how do you coordinate that with the special legislation in Canada? I do not think special legislation
necessarily solves the problem.
Mr. Cohen: I was struggling with the concept of where you stop.
Senator Angus: I agree. It is a big problem. However, the reality is that it seems to me the best example again is the
current one, with these labour negotiations and people saying maybe Judge Farley has the jurisdiction. If we had
chapter 11, they would be able to go into those collective agreements. It seems to me there is no clarity under the
Mr. Cohen: Then we fix the sections dealing with interference with contractual rights, if we believe that that is the
right public policy. We fix the sections and we live with the fact that that is available to all organizations. We do not try
to determine which industries have a bad labour situation this year that we need to deal with specifically.
It would be a mistake to be so narrow, in the circumstances. We would be making legislation to judge a labour
relationship that exists in a particular industry at a particular time. If we wish to do that, then I believe that the
legislator ought to move on the Air Canada issue now if there is a belief that that is an important public policy
I do not believe the CBA would disagree that we should not go around looking for the industries that have that
problem and say, "Okay, we need to pre-empt that one and this one and that one.'' I think if it is sufficiently important,
you deal with it at the time, or you enact something that can be applied across the board and live with it.
Senator Angus: I believe the U.S. law, chapter 11, is not industry specific. Therefore, the issue for the legislator, for
public policy here, would be do we import chapter 11 type provisions into our laws generally or not?
Mr. Cohen: We first make a decision on whether we import chapter 11 or look at the U.S. experience and decide it is
too codified, too specific and clearly represents one interest over another. Second, we move on to say that if that is not
appropriate for the Canadian environment, which is admittedly different, and we like what we have here, we are not
proposing chapter 11 as a panacea. If we find there is some level of inequity that has to be dealt with, then deal with it
in a Canadian way, by maybe providing a specific test or a standard that might give a little more discretion in those
circumstances for the judge to act.
I know that is preaching a little uncertainty out of the left side of my mouth while I talk about certainty out of the
right side, but in some circumstances, that may be needed.
Mr. Shea: Chapter 11 is not necessarily the only model. UNCITRAL is a good place to start. Not the UNCITRAL
model, but other UNCITRAL initiatives in insolvency are good places to start looking for international best practices
in the area.
Senator Hervieux-Payette: I am in favour of your recommendation on getting rid of the waiting period, the two
weeks, for unemployment insurance. I suppose that when you are in that situation, you are not to blame for losing
your job. Like my colleague, I do not favour the suggestion of a fund. However, is there not a mechanism by which the
employees can take over the management when the company does not put the money aside, stops contributing, or
defaults on the pension fund? Very often, when nearing bankruptcy, companies were running the whole show. Of
course, the employees were the ones to suffer at the end of the day. I think it was Singer, in Quebec, where we heard
many years later that all the money was gone with the wind.
If the trustee of that fund is using the money for other purposes, is there not a way of preventing that? I look at
Enron and all the people that went through major disasters. People who are in their 60s have worked all their lives and
they end up with no income or security whatsoever.
It is not happening overnight. The companies stop contributing when things turn sour. Have you looked at different
kinds of mechanisms? I do not know if it is a federal or a provincial responsibility. When we make a recommendation,
it should be global. How should we approach the question of the trustee of the fund, management, not complying with
Mr. Cohen: The first point is that often the horse is out of the barn. When do you have sufficient information to
impose employee control of a plan? That is probably also when the provincial or federal regulatory authority could
step in to deal with the issue — the money is already gone.
I do not pretend to be an expert in the area of pensions, but there are a number of issues that arise. Actuaries change
their minds about their assumptions and then the pension fund is underfunded overnight. It is not just a matter of not
The contributions may be being made. They may not be sufficient. The actuarial assumptions may be incorrect, or,
as has happened in the U.S., the company has access to the pension funds in certain circumstances to buy back their
own stock. That is not the case here.
The Chairman: I am not sure that is the question the senator asked.
Senator Hervieux-Payette: I understand why you are saying that; however, is there a way to prevent it? You say no,
because it is always too late when we learn about it or the actuaries have changed their minds. Usually when there is a
big disaster, it is due to something that has been going on for some time. If they contribute every week, the money
cannot be gone the week after.
For some funds, it is only the employer who contributes. However, most of time it is the employer and the employee.
The employees have that deduction on their paycheque. Week after week it has to be sent to a certain place. Should
they not monitor that and see what is happening more often than every five years?
The Chairman: That is not a bankruptcy, though.
Senator Hervieux-Payette: When the bankruptcy occurs, we are faced with the problem that all these people have
lost their pension funds. It is one of the major problems in bankruptcy.
The creditors will lose some money. People who have lent money will lose money. To me, people losing their job, all
their savings and their pension is the greatest damage from bankruptcy.
The Chairman: Is that to be examined under the question of how do you look after pension funds?
Mr. Klotz: I was about to say something to the same effect, Mr. Chairman. Bankruptcy interacts with provincial
laws. Administration of pensions, particularly of provincial pension plans, should be dealt with by the provincial
pension board. It does not matter whether there is a bankruptcy, a reorganization, the company stops carrying on
business or is happily carrying on business, if it is underfunded, the provincial pension board should be monitoring
that provincial pension plan.
I am not sure if this committee can address that issue. It is an important issue, I agree. It relies on properly
functioning provincial legislation, and I presume in the case of federal industries, federal pension legislation as well.
Senator Hervieux-Payette: You recommend establishing a fund at the provincial level? You say that there should be
another fund to which people would contribute and that that is a federal authority.
I have a problem with that. I am of the same mind as my colleagues. I do not want to add another level of
administration and another deduction for all the workers.
Mr. Cohen: We anticipated that concern because of issues such as Enron, senator. You will notice that the
recommendation on the wage fund differs from the recommendation on the unpaid pension fund.
It says that the CBA recommends that if Parliament wishes to provide protection to contributors of unremitted
pension contributions during bankruptcy, it should do so in a similar fashion to wage earners.
We were not recommending that it be done. We were saying that if you think it is fit and appropriate for the federal
government to impose a protection in the circumstances, then the model to use is the wage-earner model, as opposed to
a priorities model, running ahead of secured creditors, for example.
I do not mean to "pass the buck.'' You have raised an important issue, but we were not measuring the relative
importance of that interest in the circumstances. We were saying that if Parliament wishes to do it, then this is the way
we would recommend it be done.
That differs from what we are saying in the wage earner recommendation. In that case, we are saying that it should
be done. That is the distinction.
The Chairman: You might have in the CCAA some kind of clause stating that as part of the yearly audit, the
auditors must report on the condition of the pension plan. It seems to me that worrying about the pension plan when
bankruptcy is declared is too late. The cat is out of the bag.
Mr. Cohen: I would agree.
Senator Kroft: I want to raise a question that arises from a news report last week regarding the enormously complex
settlement of WorldCom's affairs. Apparently, as part of that settlement and based on the provisions of the new
Sarbanes-Oxley Act, with which this committee has become familiar, they have agreed that shareholders will get U.S.
$500 million. The number is not important, but it appears, from the attempts to bring in corporate rationality post-
Enron, that shareholders will have rights in a bankruptcy situation ahead of creditors, which is the point of this report.
I know that we have to be compatible with and attractive to the Americans, but it also works the other way around.
I do not know if you had any sense of this. I am really leaning on you on both this subject and the other one. Are you
aware of this at all? Is there any parallel discussion happening in this country? Does this come as a complete surprise to
Mr. Shea: In the context of a Canadian insolvency proceeding, typically, shareholders do not receive anything for
Mr. Cohen: There was one scenario in the second Eatons reorganization, where in order to convey the tax losses to
Sears when the business was sold, they had to convey the shareholdings of the company to allow the Eatons entity to
be amalgamated with Sears. In that way, the tax losses could be used to offset Sears' profits.
Senator Kroft: Presumably, that was a mechanism for another purpose. It was not a cash transfer.
Mr. Cohen: It was a requirement of Sears that they kept the shares so that they could avail themselves of the tax
losses. I acted for probably one of the largest creditors in the Eatons scenario. It sat ill with us that the shareholders got
a $20-million note that was paid on the never-never plan — they were not sure if they would be able to take advantage
of the tax losses. I think that they were quite sure. If they were able to take advantage of the tax losses, they would pay
on the note.
They immediately took advantage of the tax losses and I think the Eatons shareholders got almost $20 million. Mr.
Justice Farley commented on that in a number of decisions on Eatons, but he said there was no other game in town if
you wanted that deal at that dollar level from Sears. It provided a lot more money to the unsecured creditors than in a
liquidation scenario, where Sears was buying the skeletal remains. You had to pay to get shareholder cooperation.
Whether $20 million was the right amount of money or not, I leave for other people to assess. I will not tell you my
personal view on that. That is an anomaly within the Canadian context.
Senator Kroft: You have confirmed that conceptually and in principle, it would be foreign to the Canadian context.
However, you have also made a secondary point, which is that it attests to the incredible flexibility of the CCAA that
Justice Farley can again leap over that principle and that broad fundamental of our law, in order to make an
accommodation on the basis that it was the only game in town.
Mr. Cohen: He had the ultimate word in the sanctioning, but before that, the unsecured creditors voted and
approved. There was a 99 per cent approval level. CCRA abstained from voting and there were a few trade creditors
who declined. It was voted on in those circumstances because it was in fact the best scenario.
Senator Kroft: It may be arising in an agreement with the creditors here as well, but I was interested in your reaction.
Mr. Cohen: I think there would be a fairly strong negative reaction to shareholders' interests being served in that
The Chairman: Thank you very much for your excellent presentation.
Our second witness is not only from the International Insolvency Institute, but, I am told, is the founder. He is a
pioneer in formulating the UNCITRAL model law on bankruptcy. Before you say anything, please accept our
Welcome to the committee. I assume you have an opening statement.
Mr. Bruce Leonard, Chairman, International Insolvency Institute: I have a brief opening statement.
Thank you, honourable senators, for the invitation to appear today. I appear on behalf of the International
Insolvency Institute, which despite its name, is actually a Canadian non-profit corporation.
The goal of the institute is to gather the leading academics, judges and regulators from around the world into a
single forum where we can concentrate on improving international systems and procedures. It is a limited membership
organization. We are limited to 150 members from around the world. At the moment, we have about 40 countries in
our membership. We try to have the outstanding practitioners and judges from each of those jurisdictions join us in our
We are a fairly young organization. We are only three years old, but we show signs of being here for the long term.
In terms of material for the committee, I believe you should have all received a copy of the English version of the
institute's written submission. My apologies to the senators for not having the French version available. I had
promised Mr. Robert that I would deliver succinct remarks, but I broke my promise. I said I would deliver them in a
timely fashion, and I broke that promise, too. He has not been able to obtain the French translation yet, but it will be
available shortly. I apologize for my tardiness.
You should have received also a CD with source material on international insolvency. It brings together in a single
place material that is not available anywhere else. I hope everybody has access to the CD ROM because it has good
source material in it for your deliberations. Everybody should have received a copy of the UNCITRAL model law,
with the guide for enactment.
Thank you, Mr. Robert, for making those arrangements in a timely fashion.
I will break my opening remarks into two segments. The first is Canada's place in the world and our need to
coordinate our systems with those of our major trading partners. How does Canada fit into the international scheme of
Second, how do Canada's domestic insolvency procedures compare in the competitive sense with our major trading
Part one of my remarks will focus on the UNCITRAL model law and our strong recommendation that this
committee consider recommending its adoption in Canada. A little background to the model law would probably be in
UNCITRAL stands for the United Nations Commission on International Trade Law. It is the United Nations'
commercial arm and is headquartered in Vienna. Over the past 30 to 40 years, since the Second World War,
UNCITRAL has prepared a number of model laws, conventions and statutes that have been recommended to member
I asked the Department of External Affairs to give me a short note on how many UNCITRAL conventions Canada
has adopted. I have not heard back from them yet. There may be six or eight UNCITRAL creations that Canada has
formally adopted. This would be another one in that series.
UNCITRAL began this project in 1994. The object was to increase the ability of insolvency representatives in
different countries to access the courts of countries where their debtors had assets. This concerns multinational
organizations and insolvencies.
Prior to the early 1990s, there were very few international reorganizations. The dominant theory internationally at
that time was territoriality. Each country took over the assets of a company within its jurisdiction and would not share
or cooperate, by and large, with other countries that had other parts of the same company's assets.
The UNCITRAL model law was designed to try to allow for international coordination in insolvency and
reorganization cases because everybody involved in the process recognized that a business that was a going concern
was always more valuable than a liquidated business. Stakeholders in each country would benefit from having the
business reorganized successfully as a whole, instead of being torn apart by individual proceedings in individual
The UNCITRAL model law was considered by 60 countries and Canada was prominent in the deliberations that led
to its development. The chair of the UNCITRAL working group that produced the model law was a lawyer from the
Department of Justice. Canada was very prominent in the development and promulgation of the model law.
The model law received approval from the United Nations in late 1997. As far as any of us know, that is the fastest
that the United Nations has ever approved a project. It was three years from start to finish.
What is the model law? It is a system. It is a framework for cooperation. It is not intended to change anybody's
substantive legislation. It is more procedural than substantive. It sets up a framework so that international
reorganizations and liquidations can be coordinated to preserve value for the stakeholders of the companies that run
into financial difficulty.
International acceptance is quite good. The United States has had a version of the model law on its books since
1998. It has been part of their bankruptcy reform process. That has been hung up with a number of extraneous issues
that you would just not believe unless you followed the U.S. process.
At last count, the various houses of Congress had passed the model law seven times. That is sincerity. It has been
passed seven times, three times by the House of Representatives and four times by the Senate. It falls into sessional
breaks without passing in both houses.
Senator Oliver: Where is it now?
Mr. Leonard: That is a very good question. It was passed most recently by the House of Representatives in this
current session and has gone to the Senate. It has not been controversial. I am expecting that the Senate will pick it up.
There will then be a conference between the Senate and the House of Representatives, and it will be passed by both
houses this time. However, I have said that before.
Other countries have adopted it. The first major country to adopt it was Mexico. Mexico took it pretty much as is
and put it into their bankruptcy law in 2001. South Africa has also passed it. However, the III member in
Johannesburg has informed me that for some reason that he does not understand, the South African legislation has not
yet been proclaimed.
Remarkably, Japan has passed a variant of the model law. Japan is a civil law country with territorial jurisdiction.
Prior to the model law, they would not recognize foreign insolvency proceedings nor would they extend the effect of
domestic proceedings abroad. For Japan to recognize the law and incorporate it into their legislation is truly
In England, legislation has been passed to enable the adoption of the model law. Australia has produced a report
recommending the adoption of the model law. I have checked with a III member on the progress of that legislation.
They expect to have the model law in place in that country later this year or early next year. New Zealand has prepared
a report recommending adoption of the model law, and it is expected to be adopted there as well.
The last country on the list that UNCITRAL sends to me is Eritrea. It has passed the model law.
They count. They have a vote at the United Nations, just like we do.
Senator Kelleher: Is there anybody there with any money?
Mr. Leonard: The Eritrean experience seemed to be connected to a project involving the U.S. Agency for
Senator Oliver: The U.S. has a big base there.
Mr. Leonard: That would be the logical conclusion. I think the model law has received a high level of international
acceptance. If the Americans pass it, I think the British will. I think they are waiting for the U.S. to make the first
If you include England, the United States, Mexico, Japan and Australia — the countries that have indicated that
they are prepared to or have passed the model law — in one group, I think it becomes almost imperative that Canada
join that system and incorporate the model law into both of its statutes as part of the overall insolvency framework in
Questions have been raised as to whether the interests of domestic Canadian creditors are protected with the
adoption of the model law, and the answer is that they are. The reference in the III brief is on page 11. In any adoption
or application of foreign insolvency proceedings, the model law indicates that the interests of domestic creditors are to
be taken into account.
The adoption of the model law would not amount to an abdication of any kind of Canadian responsibility.
Canadian courts would still be able to take care of Canadian creditors. I simply commend the references and the text of
the model law to the committee.
On the CD ROM, we have the Australian report, the New Zealand report and the U.K. act that allows the adoption
of the model law. Hopefully, this will be of some assistance to the committee in its deliberations.
To comment briefly on where Canada fits in the world in terms of the domestic competitiveness of its insolvency
system, at this juncture, the submissions are that our system is in drastic need of overhaul. I commend this committee
very much for its interest in the topic.
Over the years, this committee has spent more time on and paid more attention to insolvency reform than most
other committees. I remember being here in 1996 in connection with the 1997 amendments, and I think I recognize
some of the faces. In my view, this committee is probably Canada's last chance to develop acceptable, modern
It has been a legislative orphan all the way along. Nobody is paying much attention to it. However, it is
tremendously important framework legislation and it deserves a better ride in Parliament than it has had to this point.
I would like to sum up the criticisms that have been levelled internationally, primarily at the CCAA, in four points. I
suspect my four points will elicit some questions, so I will then defer to them.
In my view, and in the submissions of the III, the Canadian system lacks transparency. There seems to be — and I
am sorry to say this — a lack of integrity in the system. There certainly seems to be a lack of predictability; and it is
almost beyond question that there is a lack of success in our system in reorganizing companies.
I thought that would provoke Mr. Goldstein. It may well do.
I hope that is enough to stimulate some questions and I will amplify upon my remarks in responding to them, if I
Senator Oliver: I will leave questions about transparency, integrity, predictability and success to others. I would like
to ask why your institute is limited to 150 members. You said you have 40 members now, but that you have a cap of
150. Why was that imposed? Is there a statute?
Mr. Leonard: No, it is self-imposed — insolvency being the peculiar discipline that it is.
Senator Oliver: Why could it not be 151?
Mr. Leonard: It could. It is an arbitrary number because insolvency is a peculiar discipline that is not likely to have
mass appeal. There was a certain cachet to being one of only 150 members of an organization in the world. It has
proved successful. I think as we expand and take on other tasks, we will probably enlarge the membership.
Senator Oliver: I just could not understand that. Thank you for that answer. Second, you gave the names of a
number of countries — U.S., U.K., Mexico, Japan, South Africa, Australia, New Zealand, Eritrea and so on — who
like your code, and some have partly adopted it. The main thing you are asking this committee to do is to recommend
adoption to the Government of Canada.
Would you consider it appropriate to stipulate in the model law that it would be applicable to foreign
representatives in Canada only if the country from which they come has also adopted the model code, or has
bankruptcy and insolvency provisions substantially the same as ours?
Mr. Leonard: No, but I can elaborate on the answer. That is really a very live issue. South Africa in fact adopted a
reciprocity provision — over the disagreement of the people who did the report there.
To explain my answer, let me go back to the current provisions of the BIA and CCAA that were adopted in 1997. In
1997, the UNCITRAL model law was almost completed. There were a few more meetings to be held. There was a small
subcommittee established in 1996, which I was privileged to co-chair, to deal with international provisions.
At that time — and our recommendations made it into the BIA and the CCAA largely verbatim — we looked at the
UNCITRAL model law and decided that this looks like where UNCITRAL is going, so let us pick up these principles
and put them into our legislation. Parliament adopted that in the fullness of time. We have the current provisions
because that is where UNCITRAL was at the time.
Subsequent to our having to go to Parliament to have the act amended in 1997, the UNCITRAL process concluded
in a manner that no one had anticipated. The real answer is that the delegate from France, who had been slowing the
process down — I should not be critical — and who had been raising a lot of interesting questions about the process,
suddenly bought into it. A tremendous international consensus suddenly developed that produced a more well-formed
view of international cooperation than we were able to get into the act at that time.
We did not go for reciprocity at that time, so the Canadian system, as it exists now, does not require reciprocity. The
Canadian system for recognizing foreign insolvency proceedings basically says,
"Okay, if the foreign insolvency
representative is validly appointed in a proper proceeding in his country, we will recognize him.'' We are not asking for
a quid pro quo. It just seems fair, if he is authorized and able to deal with the business —
Senator Oliver: I think there should be a quid pro quo. I think there should be reciprocity.
Mr. Leonard: I am not sure it is an exercise in sovereign rights. It is a commercial —
Senator Oliver: Earlier, you said do not worry; Canadian domestic creditors will be protected. What if a large
company had domestic creditors in South Africa, Mexico, Japan and the United States, and also in Canada? Will there
be any priority in how these creditors will be protected, or will it be identical to the way that the foreign creditors will
be protected? Will Canada's creditors receive any sort of priority?
Mr. Leonard: The answer to that is if the Canadian creditors were inclined, the model law allows them to start a
domestic proceeding. The assets in Canada would be administered in a domestic Canadian proceeding.
Senator Oliver: It would cover assets only in Canada and not in the other jurisdictions, such as in South Africa or
Mr. Leonard: That is the deal. There is an overall international umbrella for the organization, but domestic assets
are dealt with internally on a country-to-country basis. There will be only one master proceeding. If there is an
international asset, the master proceeding takes the international assets, but the domestic creditors are able to exercise
their rights under their domestic legislation.
Senator Oliver: However, they cannot get anything internationally? If there were more international assets in Japan
or Mexico or South Africa, you are saying that Canadian domestic creditors could not benefit from that in any way?
Mr. Leonard: Not if there were a domestic Japanese proceeding. We take the UNCITRAL model law, its progress
on the international level, a step at a time. The model law is an advance over where we were, but it is not the end of the
story. Ultimately, if you want to get to the fairest system for all creditors, it would have to be one administration
treating all creditors evenly.
Senator Oliver: That is my point.
Mr. Leonard: The politics of the UNCITRAL system were such that we could not get there in the first phase. That
would be something to which we would ultimately try to work toward. We were not able to get there the first time. It
was enough of a miracle to get what we did — we are grateful for that — and we will work on improving it. We are
getting there, but we are not yet where you think we should be. I think we should be there too.
Senator Kroft: You have provided irresistible temptations with that last list. I thank Senator Oliver for resisting that
temptation. I will not attempt to deal with all of them, but I will pick two.
Let us start with what you mean by "integrity.''
Mr. Leonard: By "integrity,'' I mean, primarily, conflict of interest. There are no rules in the CCAA covering
conflict of interest.
We have insolvency administrators with multiple positions, multiple responsibilities, and what bothers me is that
some of the multiple responsibilities are conflicting. It is not just the auditor being the monitor, which is the first
instance of a conflict of interest, and which was statutorily enshrined in 1992.
Parliament bought into the argument that we would save a lot of money if the auditors, who already knew about the
business, could be the monitors. Prior to the 1992 amendments, there had been cases in which the courts had
disqualified firms from acting as monitor — informally, because it was not in the legislation. Firms had been
disqualified because they were the auditors and it was an obvious conflict. In 1992, Parliament bought into the
argument that you would save a lot of money if you used the auditor as the monitor. Therefore, it was put into the
legislation that that could happen, but that does not excuse the conflict.
Other countries cannot believe that we have a statutorily enshrined conflict of interest like this. There it is. Our
recommendation would be that that should be revoked. That is the first thing.
The next series of conflicts comes from the fact that the monitor often acts as either the financial adviser to the
debtor or the financial adviser to the secured creditors.
The monitors, who are appointed by the court, are supposed to be fiduciary to all the creditors — and they all say
they are. Then they take on these multiple representations where they can act for creditor A, who has an interest
inconsistent with creditor B, but they are also acting for creditor B. It gets worse, because sometimes, when a plan fails,
the monitor is first in line to say, "I can be the receiver.''
Another area of conflict is that the receiver owes his obligations primarily to the first secured creditor, but as
monitor, he is also acting for the unsecured creditors, and as auditor, he is acting for the shareholders of the company.
It gets too complicated for words.
My recommendation would be that we go with the one-hat theory. Could everybody involved in a CCAA
reorganization please only wear one hat?
Senator Kroft: I do not want to seem naive in your eyes, but why do you think that you are the first witness, to my
knowledge, who has raised this point?
Mr. Leonard: I can only speculate. If it has not been raised at this committee, it has certainly been shouted about
enough at professional gatherings. I would be alarmed if my comments were a surprise to the committee. Some of my
background involves U.S. practice. I have been involved peripherally in the U.S. legislative process. I believe I am the
only Canadian member of the National Bankruptcy Conference in the United States, which is a non-profit
organization that makes submissions on improving U.S legislation, so I see how their system works. They have a test
called "disinterestedness.'' If you are to be appointed as an insolvency administrator or a professional adviser in a U.S.
case, you must pass the test of being "disinterested,'' which means, when you take on a position, you do that job and
no others. Your interest is directed to your constituency, and you are not to share it, divert it or act in ways that are
inconsistent with the interests of the people you are appointed to represent. In Canada, under the CCAA, there are no
restrictions, so you have insolvency administrators wearing two, three, and, occasionally, four hats. To whom are they
responsible? How do they carry out their responsibilities?
The other point I would make, in response to a very good question, is that you might be able to live with a system
like that if there were any independent creditor representation in a case.
The BIA contemplates a board of inspectors that are supposed to advise the trustee-in-bankruptcy. The CCAA
should, and this is part of our recommendations, provide for creditors' committees, so that the people who have the
investment in the situation are able to organize themselves and make their views known to the monitor, to the court
and so on. However, there is no provision in the act for the creditors to be represented in that fashion. It is as if the
CCAA has gone out of its way to squeeze out whatever remnants of creditor democracy slopped over from the BIA.
Under the CCAA, you have to rely on the monitor.
The monitor, of course, usually has these conflicting responsibilities. The other disadvantage of the monitor system,
since I am on the topic, is that the monitor should be responsive to the needs and wishes of the creditors, but they
almost never call meetings of creditors. They must divine the wishes of the creditors by osmosis, because they never ask
for their views. Nobody elects a monitor. It is a bad situation that cries out for reform. That is why I say there is a
There was a question earlier about whether these monitors make full, true and plain disclosure. I would differ a little
from the Canadian Bar Association's answer and say they do occasionally. There is no question that sometimes they
do. That means that sometimes they do not.
One of my best examples is a major CCAA cross-border case. I cannot, because of the record, tell you what it is
now, but I can tell you afterwards. There was a monitor appointed in a major case out of Toronto, from where most of
the CCAA problems seem to emerge.
This is a company with a turnover of hundreds of millions of dollars a year. Part way through the case, I raised my
hand and said, "Please, sir, can we have a report on how the business is doing? We are a substantial creditor. There was
no creditors' committee. How can we find out what is going on? You are our eyes and ears.'' The monitor, a national
firm represented by a national law firm, wrote back through counsel, saying, "We do not have an obligation to report
to you. When we go back to the court next, we will report, but in the meantime, there is nothing in the statute that
requires us to report to you. Stop bothering us.''
Being the good-natured person I am, I did not take offence; however, it is not a great system.
Senator Kroft: You have hinted at that and I understand your reticence.
What measurements or standards do you use to measure success?
Mr. Leonard: It is subjective. There is no real test for measuring success. I take
"success'' as the debtor entity
reorganized into a condition similar to that it was in before, maybe with different ownership, maybe not, but carrying
on in substantially the same form as it entered the proceedings. That is success.
Let me make another contrast with the U.S. to explain my comment. The U.S. system is based on the
principle. They believe, as an article of faith, that a company that runs into financial difficulty should have the
opportunity to make a fresh start. There are historical reasons for that, but that is their theory.
We inherited from England a respect for people who lend money. Our system promotes a rapid and efficient
realization on assets in an insolvency case. Our system, with its short time frames, no creditor participation and
insolvency administrators who have varying loyalties, promotes sale of assets. Our system does not seem to be intended
to promote reorganizations. A successful CCAA case, and I will give you another example of this, is a quick sale of the
assets to an American company.
One of the largest manufacturing concerns of its kind in Canada went into a CCAA process last year. You would
think that that would lead to reorganization, recapitalization, some sort of rescheduling of debt, or conversion of debt
to equity. No, that is not the Canadian way. Within 60 days, the monitor had organized a sale of the assets, as a going
concern, to a large American company. There was, of course, no creditor participation in the system, apart from those
that held first security on the assets. The monitor went to the court and said,
"Look, if we can sell this business to this
huge American company, we can save a number of jobs and the business will continue.''
The assets were sold to the American company in a fairly short time frame and life goes on. It is now a subsidiary of
an American company that is carrying on, but the company is dead. The creditors who had money in the company got
nothing and the shareholders, of course, were wiped out. That is a typical Canadian reorganization.
I think we, as a country, can do better. We need some motivation to do that.
Senator Kelleher: I get the feeling that you would urge upon us the adoption of the model law here in Canada. Is that
a fair statement?
Mr. Leonard: Yes.
Senator Kelleher: Do you have any further reasons you would like to give us for that?
Mr. Leonard: Thank you; that is a good question. I think if Canada adopted the model law, we would probably
stem, or at least slow down, the flow of Canadian reorganizations that are going to the United States. I guess I have to
back up. There have been half a dozen cases in the last two or three years of major Canadian companies reorganizing
in the United States. You ask yourself why that is. Is our system not adequate to handle our reorganizations? Of course
it is. Apart from the other things I have mentioned about predictability and lack of success, why do they go down
there? Loewen went to the United States and reorganized and is now an American company with a head office there.
Laidlaw is now an American company, or will be when it emerges shortly. Livent went down to the United States.
Philip Services, a decades-old company in Hamilton, is now a company in Chicago.
Why do these people do that? I think they saw some advantages to the U.S. system. There is a recommendation in
the brief, because one of the things that all those companies shared was a liability of securities class actions against
them. In the United States, securities class action claims are treated as equity. In Canada, they are treated as debt. This
distinction meant that they could not reorganize successfully in Canada, so they had to go to the United States.
If the UNCITRAL model law were in place, and if it is passed by Congress one more time, a proceeding that is
taken in the "centre of main interests'' of the reorganizing company would be recognized. That is a European term, but
it means the head office jurisdiction. If the UNCITRAL model law had been in place in Canada and the United States
when Philip Services, Laidlaw and Loewen filed, the U.S. would have recognized the Canadian proceeding. You would
not need to go into the United States. If that will help us reorganize Canadian companies in Canada, I think that is a
worthy objective, apart from the other more general comment that anything that promotes an international
reorganization rather than an international liquidation is a good thing, because it maintains greater stakeholder value.
Senator Kelleher: To your knowledge, have other countries that have adopted the UNCITRAL model law inserted
provisions that protect local creditors first?
Mr. Leonard: The model law, in the references on page 11 of the report, does itself contain provisions that say that
the courts must have regard to the interests of domestic creditors. So anyone who has applied or adopted the text of the
model law would have that protection built in.
Senator Moore: Are they given priority, though?
Mr. Leonard: Priority is tougher. Are they given priority over other creditors?
Senator Moore: Are domestic creditors given priority over other creditors?
Mr. Leonard: In a sense they are; however, it is not under that provision. Where it comes from is that the model law
allows domestic proceedings to take place and the domestic proceedings then govern.
Senator Moore: Have any of the countries that have adopted it put in a proviso that their domestic creditors come
Mr. Leonard: I do not think so. There are local preference clauses. You will never get France to back off from
labour claim priorities. Those kinds of things cannot be dealt with.
The Chairman: Thank you for being with us. It was interesting and we appreciate your candour and the information.
Our last witness of the day is appearing as an individual. Mr. Bob van Leeuwen, President of van Leeuwen
Engineering Limited. I understand you have an opening statement.
Mr. Bob van Leeuwen, President, van Leeuwen Engineering Limited, As an individual: I have a set of slides, of which I
believe you have a copy. Essentially, I am here to help try to prevent bankruptcies or reduce the number and also the
effect of bankruptcies when they do occur. My title is "Ethics, Profits and Taxes'' — trying to increase profits for
Canadian corporations through ethical credit relationships and more efficient transactions.
I will give some background on ethics. From my perspective, bad debt is approximately a $10-billion-a-year
problem in Canada. Fraud is about a $25-billion-a-year problem. These are my estimates, backed up by other people's
estimates. The global default rate, as estimated by Standard and Poor's, is at 3.499 per cent. Their analyst is Diane
Vazza. That is pretty close to the 3.5 per cent that I estimate for Canada for the combination of bad debt and fraud —
$35 billion out of a one-trillion-dollar economy.
I will be talking about transaction costs and whether they are appropriate. The cost of electronic money currently is
about two per cent of revenue, should you decide to use it, and that is most commonly available in the form of a credit
card. You may be aware that credit cards cost businesses in the order of 1.5 to 5 per cent of revenue. The smaller you
are, the higher the percentage.
My uncle started the first credit card company in the Maritimes, possibly in Canada, so I know a little about the
credit card business, where it comes from and where it is going.
I am asking for two things. One is a provincial responsibility and the other is federal.
Under provincial responsibility, I am asking for establishment in law of something that I call a
interest'' or a "shared security interest.'' This would allow you to share the first, second or third interest in a piece of
property with a number of creditors. This would have to be structured, obviously, in the same way that banks have to
use a structured approach when they give you a line of credit against your house.
It would allow you to have multiple credit relationships using the same piece of security. It would be of benefit in
terms of allowing smaller debts to be secured, which would reduce bad debt.
I have a transaction instrument on which I have a one-pager that we can cover a little later that should help in fraud
reduction by giving a period to the transaction. This particular instrument, if used properly, would allow for an interest
cost reduction for all firms because you would be using credit instead of real money.
On the federal level, I am looking for "electronic money.'' It is a generic term. I am basically looking for a port, for a
financial institution that is not a bank, to plug into the Canadian Payments Association.
That is important, because if you want competition in transaction methodologies, you need to be able, as a small
start-up, to plug into the electronic payment system and grow. It is very difficult as a small start-up to be asked for $5
million in deposits — a $20,000 deposit to apply to be a member of the CPA and all the infrastructure and continuing
costs associated with that.
Just as all new computers have a USB port, I think there ought to be a new port on the Canadian Payments
Association where small start-up financial-transaction companies can plug in and try out their methodologies. If they
grow, they can either eventually migrate to being a bank or, if the committee so decides, some other form of structure.
You would want electronic money for paperless monetary exchange, for distance monetary exchange and for
removal of a key e-commerce barrier. I view this as about a 0.1 per cent GDP improvement and an efficiency
improvement. It is actually a zero-cost or 100-per-cent efficiency improvement. If we look at profit level — and we will
a little later — it ends up being a 10-times factor for profit improvement.
I believe partial security interests would help reduce bad debt and fraud, which cost companies approximately 3.5
per cent of revenue. If we use an artificial value of 10 per cent profit for an average firm — I understand from the
Canadian Payments Association that 10 per cent is actually a fairly good number for the average profit level in
Canadian corporations — we would be looking at a 35-per-cent potential improvement in profit levels. For electronic
money, a 0.1-per-cent GDP increase would therefore increase profits by approximately 1 per cent.
Obviously there is a tax implication. If your profits were 35 per cent higher, your taxes would be 35 per cent higher.
There is actually a fairly good economic benefit to the government in implementing this kind of thing.
From discussions that I have had with the Bank of Canada, they are doing an initial study on this at a very high
level. I interpret that to mean, "We might do this in 10 years, if we are lucky.'' However, there is some agreement that it
is just a matter of time before we have some sort of electronic money in Canada, so that I can transfer $50 to my son's
electronic wallet from my electronic wallet.
I will not go into how those things might be better used, because maybe you want to ask a few questions?
The Chairman: Can you tell us how this affects bankruptcy?
Mr. van Leeuwen: Maybe I will use the visual aid that I borrowed from my son. In bankruptcy, all the creditors are
in line. You service the first creditor or the first security interest first. Then the other creditors get their turn. I am
suggesting that a partial security interest would allow creditors to choose to be at the front of the line.
For example, I have a line of credit against my house with a zero balance owing. I am a mechanical engineer. If I
want to buy an injection-moulding tool, it might cost $16,000 and take 20 weeks to be delivered. If I wanted to order
one of those things right now, I would have to pay the money up front because the moulding company will not believe
that I am creditworthy. If I had a partial security interest, I could effectively give them the same interest in my house
that a construction lien would give a construction company. They could therefore see that I am creditworthy. I would
not have to write the cheque until I actually got the tool. That would save me 20 weeks' worth of interest. These days,
that is not as significant a saving as it was a few years ago. However, it is still a cost and one that I would like to avoid.
The Chairman: What does this have to do with bankruptcy?
Mr. van Leeuwen: In bankruptcy law, you are looking at different sorts of interests. The Canadian Apparel
Federation has asked for a different kind of interest for their membership. The Canadian Labour Congress has asked
for a priority interest. The Ottawa Airport Authority has asked for reservation of a priority interest for airport
improvement fees. All of these things are done with what I would call micro-payments. In other words, the payments
are less than $150,000 and they are serial; there is a stream of them.
The only way you can guarantee that kind of thing at the present is with a letter of credit. Letters of credit are
incredibly difficult to implement. I am talking about something that would be essentially as easy to use as a credit card
but which would give you a secured interest in a piece of property. It allows you to become a secured creditor in
bankruptcy when otherwise you would not be considered one.
The Chairman: To be perfectly blunt about it, we are having some trouble with your presentation. You obviously
have a level of intelligence beyond mine because I do not understand it. My adviser does not understand it.
Mr. van Leeuwen: I have been an unsecured creditor, as has my dad, as has his dad before him. When you go into
bankruptcy as an unsecured creditor, you are left unsatisfied pretty well 100 per cent of the time. The only way a
company like mine, which provides engineering services, can ensure that it gets paid by a client in bankruptcy is to get a
security interest. At present, I cannot get a security interest so that I am assured of that process as a secured creditor,
unless it happens prior to bankruptcy.
The Chairman: You would get your security interest through this joint payment guarantee instrument?
Mr. van Leeuwen: The joint payment guarantee instrument would be a way to supply that, yes. However, it does not
need to be done that way. It could be done just by issuing a partial security interest through the local property office in
the Ottawa courthouse on Elgin Street.
The Chairman: What does this have to do with electronic money?
Mr. van Leeuwen: The electronic money is a way to provide these kinds of services through financial firms. I believe
your committee is also looking at ways to stimulate competition in the insurance and banking industries.
The Chairman: Wait, you are way off topic.
Mr. van Leeuwen: It is another subject.
The Chairman: You can say whatever you want, but you are going into a whole other realm.
Mr. van Leeuwen: This is a contingency trade credit instrument that allows you to have a claim in bankruptcy as a
secured creditor where you otherwise would not.
Senator Kroft: Suppose there is a security that would be "shared,'' in your language. You talked about registering
that security at the property office; would that be like a land titles registration, for instance? Would the mechanism
allow a charge against that asset through an existing mechanism, like a land titles office or other property registration?
Or are you looking at creating something new to manage this?
Mr. van Leeuwen: There are two ways this could be managed. One is through the land registry office. However, if it
was the buyer's bank that issued this partial security interest, they could also manage that within their own purview.
The issue, as I understand it, is the need to register the security with the property office in order for it to be a legal
Senator Kroft: Let us not complicate it. Let us say, instead of a house worth $100,000, that you had $100,000 cash.
You want to use that to leverage your credit or support your credit as much as possible, so you give your bank the
$100,000 cash. The bank holds it. Then you want to order your injection moulder and do some other things.
Mr. van Leeuwen: Effectively, this would clear the amount of the cheque before it was written.
Senator Kroft: Therefore the bank would set aside the agreed-upon amount. Perhaps you are allowed to purchase
merchandise worth up to 75 per cent of your asset. The bank would put a claim for that amount against your $100,000
until you had used up to the 75-per-cent leverage level?
Mr. van Leeuwen: Right.
The Chairman: Excuse me, is that not identical to a letter of credit?
Senator Kroft: That is what I was getting to, Mr. Chairman.
You said earlier that the only way of achieving this now is through a letter of credit, which is complex. If I want to
establish a letter of credit, I have to do essentially what I have described, plus I must pay a fee to whoever is
establishing the letter of credit to have it confirmed — or not confirmed — and go through other processes.
Really, that is what we are talking about. You want to add on to that a delivery mechanism through this card
Mr. van Leeuwen: The delivery system that I am talking about makes it different from a letter of credit and also
different from escrow; yet it is similar to both. The distinction between this suggestion and a letter of credit is that once
a letter of credit is issued, the seller is paid as soon as the invoice is issued. There is no way for the buyer to stop that
from happening. You cannot disrupt that process. A letter of credit is inviolable once it has been issued.
With this suggested instrument, if the invoice is sent but the buyer does not sign off as being satisfied, then the
purchase amount is put into a joint account controlled by both the buyer and the seller. The funds cannot be dispersed
unless both the buyer and the seller agree. That would make it something like escrow, but not exactly like it. The reason
it is not exactly like escrow is that it would only be issued to the account once there was a problem, whereas an escrow
account is created prior to any transaction.
The Chairman: Mr. Van Leeuwen, I am going to give your submission and this one-pager to our consulting and
expert staff at the Library of Parliament to see if they can explain it to me and to our committee.
If we need further explanation, we will come back to you. Thank you for being with us. This meeting is adjourned.