Winding-up and Restructuring Act (R.S.C., 1985, c. W-11)

Contributories

Marginal note:List of contributories

50 As soon as possible after the commencement of the winding-up of a company, the court shall settle a list of contributories.

Marginal note:Classes distinguished

51 In the list of contributories referred to in section 50, persons who are contributories in their own right shall be distinguished from persons who are contributories as representatives of or liable for the debts of others.

Marginal note:Adding heirs to list

52 It is not necessary, where the personal representative of any deceased contributory is placed on a list of contributories, to add the heirs or devisees of the contributory, but the heirs or devisees may be added as and when the court thinks fit.

Marginal note:Liability of shareholders

• 53 (1) Every shareholder or member of a company or his representative is liable to contribute the amount unpaid on his shares of the capital or on his liability to the company, or to its members or creditors, as the case may be, under the Act, charter or instrument of incorporation of the company, or otherwise.

• Marginal note:Liability an asset

  (2) The amount that a shareholder is liable to contribute under subsection (1) shall be deemed an asset of the company, and a debt due to the company, payable as directed or appointed under this Act.

Marginal note:Liability after transfer of shares

• 54 (1) Where a shareholder has transferred his shares under circumstances that do not, by law, free him from liability in respect thereof, or where he is by law liable to the company or its members or creditors, as the case may be, to an amount beyond the amount unpaid on his shares, he shall be deemed a member of the company for the purposes of this Act and is liable to contribute, under subsection 53(1), to the extent of his liabilities to the company or its members or creditors, independently of this Act.

• Marginal note:An asset

  (2) The amount that a shareholder is liable to contribute under subsection (1) shall be deemed an asset and a debt described in subsection 53(2).

Marginal note:Liability of contributory a debt

55 The liability of any person to contribute to the assets of a company under this Act, in the event of the business of the company being wound up, creates a debt accruing due from that person at the time when his liability commenced, but payable at the time or respective times when calls are made, under this Act, for enforcing that liability.

Marginal note:Provable against his estate

56 In the case of the bankruptcy or insolvency of any contributory, the estimated value of his liability to future calls, as well as calls already made, may be proved against his estate.

Marginal note:Handing over money and books

57 A court may, at any time after making a winding-up order, require any contributory for the time being settled on the list of contributories as trustee, receiver, banker, agent or officer of the company, to pay, deliver, convey, surrender or transfer forthwith, or within such time as the court directs, to or into the hands of the liquidator, any sum or balance, books, papers, estate or effects that are in his hands for the time being, and to which the company appears to be entitled.

Marginal note:Payment by contributory

58 A court may, at any time after making a winding-up order, make an order on any contributory for the time being settled on the list of contributories, directing payment to be made, in the manner mentioned in the order, of any moneys due from him or from the estate of the person whom he represents to the company, exclusive of any moneys that he or the estate of the person whom he represents is liable to contribute by virtue of any call made in pursuance of this Act.

Marginal note:Calls on contributories

59 A court may, at any time after making a winding-up order, and either before or after it has ascertained the sufficiency of the assets of the company, make calls on and order payment thereof by all or any of the contributories for the time being settled on the list of contributories, to the extent of their liability, for payment of all or any sums it deems necessary to satisfy the debts and liabilities of the company, for the costs, charges and expenses of winding-up and for the adjustment of the rights of the contributories among themselves.

Marginal note:Consideration of possible failure to pay

• 60 (1) A court may, in making a call, take into consideration the probability that some of the contributories on whom the call is made may partly or wholly fail to pay their respective portions of the call.

• Marginal note:Maturity of debt

  (2) No call compels payment of a debt before the maturity thereof and the extent of the liability of any contributory is not increased by anything in this section.

Marginal note:Order for payment

• 61 (1) A court may order any contributory, purchaser or other person from whom money is due to the company to pay the money into a bank or Government savings bank, to the account of the court instead of the liquidator.

• Marginal note:Enforcement

  (2) An order under subsection (1) may be enforced in the same manner as if it had directed payment to the liquidator.

Marginal note:Rights of contributories

62 The court shall adjust the rights of the contributories among themselves.

Meetings of Creditors

Marginal note:Meetings

63 A court may, if it thinks expedient, direct meetings of the creditors, contributories, shareholders or members of a company to be summoned, held and conducted in such manner as the court directs, for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any of those meetings, and to report the result of those meetings to the court.

Marginal note:Votes according to amount of claim

• 64 (1) In the case described in section 63, regard shall, with respect to creditors, be had as to the amount of the debt due to each creditor and with respect to shareholders or members, as to the number of votes conferred on each shareholder or member by law or by the regulations of the company.

• Marginal note:Preliminary proof

  (2) The court may prescribe the mode of preliminary proof of creditors’ claims for the purpose of any meeting directed to be held under section 63.

Marginal note:Court may summon creditors to consider any proposed compromise

65 Where any compromise or arrangement is proposed between a company in the course of being wound up under this Act and the creditors of the company, or by and between any of those creditors or any class or classes of those creditors and the company or is proposed by the liquidator, the court, in addition to any other of its powers, may, on the application, in a summary way, of any creditor or of the liquidator, order that a meeting of those creditors or class or classes of creditors be summoned in such manner as the court shall direct.

Marginal note:Sanction of compromise

66 If a majority in number, representing three-fourths in value, of the creditors or class or classes of creditors referred to in section 65, present either in person or by proxy at the meeting summoned under that section, agree to any arrangement or compromise, the arrangement or compromise may be sanctioned by an order of the court, and in such case is binding on all the creditors or on the class or classes of creditors, as the case may be, and also on the liquidator and contributories of the company.

Marginal note:Chairman of meeting

67 In directing meetings of creditors, contributories, shareholders or members of a company to be held as provided in this Act, the court may either appoint a person to act as chairman of the meeting or direct that a chairman be appointed by the persons entitled to be present at the meeting, and, in the event the appointed chairman fails to attend the meeting, the persons present at the meeting may elect a qualified person as chairman who shall perform the duties prescribed by this Act.

Marginal note:Voting to be in person or by proxy

68 No creditor, contributory, shareholder or member of a company shall vote at any meeting unless present personally or represented by a person acting under a written authority, filed with the chairman or liquidator, to act as the representative at the meeting, or generally.

69 and 70 [Repealed, 1996, c. 6, s. 152]

Creditors’ Claims

Marginal note:What debts may be proved

• 71 (1) When the business of a company is being wound up under this Act, all debts and all other claims against the company in existence at the commencement of the winding-up, certain or contingent, matured or not, and liquidated or unliquidated, are admissible to proof against the company and, subject to subsection (2), the amount of any claim admissible to proof is the unpaid debt or other liability of the company outstanding or accrued at the commencement of the winding-up.

• Marginal note:Uncertain claims valued

  (2) In case of any claim subject to any contingency or for unliquidated damages or which for any other reason does not bear a certain value, the court shall determine the value of the claim and the amount for which it shall rank.

Marginal note:Claims of clerks and employees privileged

72 Clerks or other persons in, or having been in the employment of, a company, in or about its business or trade, shall be collocated in the dividend sheet by special privilege over other creditors, for any arrears of salary or wages due and unpaid to them at the time of the making of a winding-up order in respect of the company, not exceeding the arrears that have accrued to them during the three months immediately preceding the date of that order.

Marginal note:Law of set-off to apply

• 73 (1) The law of set-off, as administered by the courts, whether of law or equity, applies to all claims on the estate of a company, and to all proceedings for the recovery of debts due or accruing due to a company at the commencement of the winding-up of the company, in the same manner and to the same extent as if the business of the company was not being wound up under this Act.

• Marginal note:Trust money

  (2) For greater certainty, where the business of a trust company is being wound up under this Act, the law of set-off applies in respect of all moneys received or held by the company as deposits, without regard to whether those moneys are considered to be received or held by it in a trustee-beneficiary relationship.

Marginal note:Time for sending in claims

74 A court may, with respect to the winding-up of a company, fix a certain day or certain days on or within which creditors of the company may send in their claims, and may direct notice thereof to be given by the liquidator, and may determine the manner in which notice of the day or days so fixed shall be given by the liquidator to the creditors.

Marginal note:Creditors required to prove claims

• 75 (1) The liquidator may give notice in writing to creditors who have sent in their claims to him or of whose claims he has notice, and to creditors whose claims he considers should not be allowed without proof, requiring them to attend before the court on a day to be named in the notice and prove their claims to the satisfaction of the court.

• Marginal note:Disallowance on default

  (2) Where a creditor does not attend in pursuance of the notice given under subsection (1), his claim shall be disallowed, unless the court sees fit to grant further time for the proof thereof.

• Marginal note:Disallowance on hearing

  (3) Where a creditor attends in pursuance of the notice given under subsection (1), the court may on hearing the matter allow or disallow the claim of that creditor in whole or in part.