Trust and Loan Companies Act (S.C. 1991, c. 45)

Marginal note:Costs of liquidation

361 A liquidator shall pay the costs of liquidation out of the property of the company and shall pay or make adequate provision for all claims against the company.

Marginal note:Final accounts

• 362 (1) Within one year after the appointment of a liquidator and after paying or making adequate provision for all claims against the company, the liquidator shall apply to the court

  • (a) for approval of the final accounts of the liquidator and for an order permitting the distribution, in money or in kind, of the remaining property of the company to its shareholders, if any, or to the incorporators, according to their respective rights; or

  • (b) for an extension of time, setting out the reasons therefor.

• Marginal note:Shareholder application

  (2) If a liquidator fails to make the application required by subsection (1), a shareholder of the company or, if there are no shareholders of the company, an incorporator may apply to the court for an order for the liquidator to show cause why a final accounting and distribution should not be made.

• Marginal note:Notification of final accounts

  (3) A liquidator shall give notice of the liquidator’s intention to make an application under subsection (1) to the Superintendent, to each inspector appointed under section 354, to each shareholder of the company or, if there are no shareholders, to each incorporator and to any person who provided a security or fidelity bond for the liquidation.

• Marginal note:Publication

  (4) The liquidator shall publish the notice required under subsection (3) in the Canada Gazette and once a week for two consecutive weeks in one or more newspapers in general circulation in each province in which the company has transacted any business within the preceding twelve months or as otherwise directed by the court.

Marginal note:Final order

• 363 (1) If the court approves the final accounts rendered by a liquidator, the court shall make an order

  • (a) directing the company to apply to the Minister for letters patent dissolving the company;

  • (b) directing the custody or disposal of the documents, records and registers of the company; and

  • (c) discharging the liquidator except in respect of the duty of a liquidator under subsection (2).

• Marginal note:Delivery of order

  (2) The liquidator shall forthwith send a certified copy of the order referred to in subsection (1) to the Superintendent.

Marginal note:Right to distribution of money

• 364 (1) If in the course of the liquidation of a company the shareholders resolve to, or the liquidator proposes to,

  • (a) exchange all or substantially all of the remaining property of the company for securities of another entity that are to be distributed to the shareholders or to the incorporators, or

  • (b) distribute all or part of the remaining property of the company to the shareholders or to the incorporators in kind,

  a shareholder or incorporator may apply to the court for an order requiring the distribution of the remaining property of the company to be in money.

• Marginal note:Powers of court

  (2) On an application under subsection (1), the court may order

  • (a) all of the remaining property of the company to be converted into and distributed in money; or

  • (b) the claim of any shareholder or incorporator applying under this section to be satisfied by a distribution in money.

• Marginal note:Order by court

  (3) Where an order is made by a court under paragraph (2)(b), the court

  • (a) shall fix a fair value on the share of the property of the company attributable to the shareholder or incorporator;

  • (b) may in its discretion appoint one or more appraisers to assist the court in fixing a fair value in accordance with paragraph (a); and

  • (c) shall render a final order against the company in favour of the shareholder or incorporator for the amount of the share of the property of the company attributable to the shareholder or incorporator.

Marginal note:Dissolution by letters patent

• 365 (1) On an application made pursuant to an order under paragraph 363(1)(a), the Minister may issue letters patent dissolving the company.

• Marginal note:Company dissolved

  (2) A company in respect of which letters patent are issued under subsection (1) is dissolved and ceases to exist on the date of the issuance of the letters patent.

General

Definition of shareholder and incorporator

366 In sections 368 and 369, shareholder and incorporator include the heirs and personal representatives of a shareholder or incorporator.

Marginal note:Continuation of actions

• 367 (1) Notwithstanding the dissolution of a company under this Part,

  • (a) a civil, criminal or administrative action or proceeding commenced by or against the company before its dissolution may be continued as if the company had not been dissolved;

  • (b) a civil, criminal or administrative action or proceeding may be brought against the company within two years after its dissolution as if the company had not been dissolved; and

  • (c) any property that would have been available to satisfy any judgment or order if the company had not been dissolved remains available for that purpose.

• Marginal note:Service on company

  (2) Service of a document on a company after its dissolution may be effected by serving the document on a person shown as a director in the incorporating instrument of the company or, if applicable, in the latest return sent to the Superintendent under section 499.

Marginal note:Limitations on liability

• 368 (1) Notwithstanding the dissolution of a company, a shareholder or incorporator to whom any of its property has been distributed is liable to any person claiming under subsection 367(1) to the extent of the amount received by that shareholder or incorporator on the distribution.

• Marginal note:Limitation

  (2) An action to enforce liability under subsection (1) may not be commenced except within two years after the date of the dissolution of the company.

• Marginal note:Action against class

  (3) A court may order an action referred to in subsections (1) and (2) to be brought against the persons who were shareholders or incorporators as a class, subject to such conditions as the court thinks fit.

• Marginal note:Reference

  (4) If the plaintiff establishes a claim in an action under subsection (3), the court may refer the proceedings to a referee or other officer of the court who may

  • (a) add as a party to the proceedings each person found by the plaintiff to have been a shareholder or incorporator;

  • (b) determine, subject to subsection (1), the amount that each person who was a shareholder or incorporator must contribute towards satisfaction of the plaintiff’s claim; and

  • (c) direct payment of the amounts so determined.

Marginal note:Where creditor cannot be found

369 Where a creditor, shareholder or incorporator to whom property is to be distributed on the dissolution of a company cannot be found, the portion of the property to be distributed to that creditor, shareholder or incorporator shall be converted into money and paid in accordance with section 371.

Marginal note:Vesting in Crown

370 Subject to subsection 367(1) and sections 371 and 372, property of a company that has not been disposed of at the date of the dissolution of the company vests in Her Majesty in right of Canada.

Marginal note:Unclaimed money on winding-up

• 371 (1) Notwithstanding the Winding-up and Restructuring Act, where the business of a company is being wound up, the liquidator or the company shall pay to the Minister on demand and in any event before the final winding-up of that business any amount that is payable by the liquidator or the company to a creditor, shareholder or incorporator of the company to whom payment thereof has not, for any reason, been made.

• Marginal note:Records

  (2) Where a liquidator or a company makes a payment to the Minister under subsection (1) with respect to a creditor, shareholder or incorporator, the liquidator or company shall concurrently forward to the Minister all documents, records and registers in the possession of the liquidator or company that relate to the entitlement of the creditor, shareholder or incorporator.

• Marginal note:Payment to Bank of Canada

  (3) The Minister shall pay to the Bank of Canada all amounts paid to the Minister under subsection (1) and shall provide the Bank of Canada with any document, record or register received by the Minister under subsection (2).

• Marginal note:Liquidator and company discharged

  (4) Payment by a liquidator or a company to the Minister under subsection (1) discharges the liquidator and the company in respect of which the payment is made from all liability for the amount so paid, and payment by the Minister to the Bank of Canada under subsection (3) discharges the Minister from all liability for the amount so paid.

Marginal note:Liability of Bank of Canada

• 372 (1) Subject to section 22 of the Bank of Canada Act, where payment has been made to the Bank of Canada of an amount under subsection 371(3), the Bank of Canada, if payment is demanded by a person who, but for subsection 371(4), would be entitled to receive payment of that amount from the liquidator, the company or the Minister, is liable to pay to that person at its head office an amount equal to the amount so paid to it, with interest thereon for the period, not exceeding ten years, from the day on which the payment was received by the Bank of Canada until the date of payment to the person, at such rate and computed in such manner as the Minister determines.

• Marginal note:Enforcing liability

  (2) The liability of the Bank of Canada under subsection (1) may be enforced by action against the Bank of Canada in the court in the province in which the debt or instrument was payable.

Marginal note:Custody of records after dissolution

373 A person who has been granted custody of the documents, records and registers of a dissolved company shall keep them available for production for six years following the date of the dissolution of the company or until the expiration of such shorter period as may be ordered by the court when it orders the dissolution.

Marginal note:Insolvency

• 374 (1) In the case of the insolvency of a company,

  • (a) the payment of any amount due to Her Majesty in right of Canada, in trust or otherwise, except indebtedness evidenced by subordinated indebtedness, shall be a first charge on the assets of the company;

  • (b) the payment of any amount due to Her Majesty in right of a province, in trust or otherwise, except indebtedness evidenced by subordinated indebtedness, shall be a second charge on the assets of the company;

  • (c) the payment of the deposit liabilities of the company and all other liabilities of the company, except the liabilities referred to in paragraphs (d) and (e), shall be a third charge on the assets of the company;

  • (d) subordinated indebtedness of the company and all other liabilities that by their terms rank equally with or subordinate to such subordinated indebtedness shall be a fourth charge on the assets of the company; and

  • (e) the payment of any fines and penalties for which the company is liable shall be a last charge on the assets of the company.

• Marginal note:Priority not affected

  (2) Nothing in subsection (1) prejudices or affects the priority of any holder of any security interest in any property of a company.

• Marginal note:Priorities

  (3) Priorities within each of paragraphs (1)(a) to (e) shall be determined in accordance with the laws governing priorities and, where applicable, by the terms of the indebtedness and liabilities referred to therein.

PART VIIOwnership

DIVISION IInterpretation

Marginal note:Definitions

374.1 The following definitions apply in this Part.

agent

agent means

• (a) in relation to Her Majesty in right of Canada or of a province, any agent of Her Majesty in either of those rights, and includes a municipal or public body empowered to perform a function of government in Canada or any entity empowered to perform a function or duty on behalf of Her Majesty in either of those rights, but does not include

  • (i) an official or entity performing a function or duty in connection with the administration or management of the estate or property of a natural person,

  • (ii) an official or entity performing a function or duty in connection with the administration, management or investment of a fund established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons, or moneys derived from such a fund, or

  • (iii) the trustee of any trust for the administration of a fund to which Her Majesty in either of those rights contributes and of which an official or entity that is an agent of Her Majesty in either of those rights is a trustee; and

• (b) in relation to the government of a foreign country or any political subdivision thereof, a person empowered to perform a function or duty on behalf of the government of the foreign country or political subdivision, other than a function or duty in connection with the administration or management of the estate or property of a natural person. (mandataire)

eligible agent

eligible agent means an agent or agency of Her Majesty in right of Canada or of a province or an agent or agency of a government of a foreign country or any political subdivision of a foreign country

• (a) whose mandate is publicly available;

• (b) that controls the assets of an investment fund in a manner intended to maximize long-term risk-adjusted returns and that fund is

  • (i) one to which, as the case may be, Her Majesty in right of Canada or of a province or the government of a foreign country or political subdivision contributes, or

  • (ii) established to provide compensation, hospitalization, medical care, annuities, pensions or similar benefits to natural persons; and

• (c) whose decisions with respect to the assets of the fund referred to in paragraph (b) are not influenced in any significant way by, as the case may be, Her Majesty in right of Canada or of the province or the government of the foreign country or the political subdivision. (mandataire admissible)

Marginal note:Associates

• 374.2 (1) For the purpose of determining ownership of a company by an eligible agent, where two persons, at least one of whom is an eligible agent, are associated with each other, those persons are deemed to be a single eligible agent who beneficially owns the aggregate number of shares of the company beneficially owned by them.

• Marginal note:Associates

  (2) For the purposes of subsection (1), a person is associated with another person if

  • (a) each person is an agent or agency of Her Majesty in right of Canada;

  • (b) each person is an agent or agency of Her Majesty in right of the same province;

  • (c) each person is an agent or agency of a government of the same foreign country or a political subdivision of the same foreign country;

  • (d) one person is Her Majesty in right of Canada and the other person is an agent or agency of Her Majesty in that right;

  • (e) one person is Her Majesty in right of a province and the other person is an agent or agency of Her Majesty in right of that province; or

  • (f) one person is a government of a foreign country or any political subdivision of a foreign country and the other person is its agent or agency.