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

Procedure

Marginal note:Describing liquidator

108 In all proceedings connected with a company, a liquidator shall be described as the “liquidator of the (name of company)” or, in the case of an authorized foreign bank, the “liquidator of the business in Canada of the (name of the authorized foreign bank)” and not by individual name only.

Marginal note:Similar to ordinary suit

109 The proceedings under a winding-up order shall be carried on as nearly as may be in the same manner as an ordinary suit, action or proceeding within the jurisdiction of the court.

Marginal note:Powers exercised by a single judge

110 The powers conferred by this Act on a court may, subject to the appeal provided for in this Act, be exercised by a single judge thereof, and the judge may exercise those powers in chambers, either during term or in vacation.

Marginal note:Court may refer matters

111 After a winding-up order is made, the court may, subject to an appeal according to the practice of the court in like cases, as to the court may seem meet, by order of reference, refer and delegate, according to the practice and procedure of the court, to any officer of the court any of the powers conferred on the court by this Act.

Marginal note:Service of process out of jurisdiction

112 A court has the power and jurisdiction to cause or allow the service of process or proceedings under this Act to be made on persons out of the jurisdiction of the court, in the same manner, and with the like effect, as in ordinary actions or suits within the ordinary jurisdiction of the court.

Marginal note:Order of court deemed judgment

113 Every order of a court or judge for the payment of money or costs, charges or expenses made under this Act shall be deemed a judgment of the court, and may be enforced against the person or goods and chattels, lands and tenements of the person ordered to pay in the manner in which judgments or decrees of any superior court obtained in any suit may bind lands or be enforced in the province where the court making the order is situated.

Marginal note:Ordinary practice in case of discovery

114 The practice with respect to the discovery of assets of judgment debtors, in force in the superior courts or in any superior court in the province where any order is made under section 113, is applicable to and may be availed of in like manner for the discovery of the assets of any person who by that order is ordered to pay any money or costs, charges or expenses.

Marginal note:Attachment and garnishment

115 Debts due to any person against whom an order for the payment of money, costs or expenses has been obtained may, in any province where the attachment and garnishment of debts is allowed by law, be attached and garnished in the same manner as debts in that province due to a judgment debtor may be attached and garnished by a judgment creditor.

Marginal note:Witnesses attendance

116 In any action, suit, proceeding or contestation under this Act, the court may order the issue of a writ of subpoena ad testificandum or of subpoena duces tecum, commanding the attendance, as a witness, of any person who is within Canada.

Marginal note:Arrest of absconding contributory, etc.

117 A court may, at any time before or after it has made a winding-up order, on proof being given that there are reasonable grounds to believe that any contributory or any past or present director, manager, officer or employee of the company is about to quit Canada or otherwise abscond, or to remove or conceal any of his goods or chattels, for the purpose of evading payment of calls or for avoiding examination in respect of the affairs of the company, cause that person to be arrested, his books, papers, moneys, securities for money, goods and chattels to be seized, and that person and property to be safely kept until such time as the court orders.

Marginal note:Examination

118 A court may, after it has made a winding-up order, summon before it or before any person named by it any officer of the company or person known or suspected to have in his possession any of the estate or effects of the company or supposed to be indebted to the company, or any person whom the court deems capable of giving information concerning the trade, dealings, estate or effects of the company.

Marginal note:Person summoned refusing to attend

119 If any person summoned under section 118, after being tendered a reasonable sum for his expenses, refuses, without a lawful excuse, to attend at the time appointed, the court may cause that person to be apprehended and brought up for examination.

Marginal note:Production of papers

120 The court may require any officer or person described in section 118 to produce before the court any book, paper, deed, writing or other document in his custody or power relating to the company.

Marginal note:Lien on documents

121 If any person claims any lien on papers, deeds, writings or documents produced by him, that production is without prejudice to the lien, and the court has jurisdiction in the winding-up to determine all questions relating to the lien.

Marginal note:Examination on oath

122 The court or a person named by it may examine, on oath, either by oral or written interrogatories, any person appearing or brought up in the manner described in section 119, concerning the affairs, dealings, estate or effects of the company, and may reduce to writing the answers of the person and require him to subscribe the answers.

Marginal note:Inspection of books and papers

• 123 (1) After a winding-up order has been made, the court may make such order for the inspection, by the creditors, contributories, shareholders or members of the company, of its books and papers, as the court thinks just.

• Marginal note:Limitation of inspection

  (2) Any books and papers in the possession of the company may be inspected in conformity with the order of the court, but not further or otherwise.

Marginal note:Officer of company misapplying money

124 When in the course of the winding-up of the business of a company under this Act it appears that any past or present director, manager, liquidator, receiver, employee or officer of the company has misapplied or retained in his own hands, or become liable or accountable for any moneys of the company, or been guilty of any misfeasance or breach of trust in relation to the company, the court may, on the application of any liquidator or of any creditor or contributory of the company, notwithstanding that the offence is one for which the offender is criminally liable, examine into the conduct of the director, manager, liquidator, receiver, employee or officer and, after that examination, may make an order requiring him to repay any moneys so misapplied or retained, or for which he has become liable or accountable, together with interest at such rate as the court thinks just, or to contribute such sums of money to the assets of the company, by way of compensation in respect of the misapplication, retention, misfeasance or breach of trust, as the court thinks fit.

Marginal note:Dispensing with notice

125 The court may, by any order made after a winding-up order and the appointment of a liquidator, dispense with notice required by this Act to creditors, contributories, shareholders or members of the company or to the authorized foreign bank, its creditors or persons who hold security on its assets, where in its discretion the notice may properly be dispensed with.

Marginal note:Courts and judges auxiliary

126 The courts of the various provinces, and the judges of those courts respectively, are auxiliary to one another for the purposes of this Act, and the winding-up of the business of a company or any matter or proceeding relating thereto may be transferred from one court to another with the concurrence, or by the order or orders, of the two courts or by an order of the Supreme Court of Canada.

Marginal note:Order of one court enforceable by another

127 When any order made by one court is required to be enforced by another court, an office copy of the order so made, certified by the clerk or other proper officer of the court that made the order, under the seal of that court, shall be produced to the proper officer of the court required to enforce the order.

Marginal note:Proceeding on order of another court

128 The court required to enforce the order mentioned in section 127 shall, on the production of the certified copy of the order, take the same proceedings thereon for enforcing the order as if it were the order of that court.

Marginal note:Rules with respect to amendments

• 129 (1) The rules of procedure, for the time being, with respect to amendments of pleadings and proceedings in the court, apply, as far as practicable, to all pleadings and proceedings under this Act.

• Marginal note:Authority to apply

  (2) Any court before which proceedings under this Act are being carried on has full power and authority to apply to those proceedings the appropriate rules of that court with respect to amendments.

Marginal note:Irregularity or default

130 No pleading or proceeding is void by reason of any irregularity or default that may be amended or disregarded, but the pleading or proceeding may be dealt with according to the rules and practice of the court in cases of irregularity or default.

Marginal note:Powers conferred are supplementary

131 Any powers conferred by this Act on a court are in addition to, and not in restriction of, any other powers at law or in equity of instituting proceedings against any contributory or the estate of any contributory, or against any debtor of the company or the estate of any debtor of the company, for the recovery of any call or other sum due from the contributory, debtor or estate, and those proceedings may be instituted accordingly.

Marginal note:Wishes of creditors

132 A court may, with respect to all matters relating to the winding-up of the business of a company, have regard, so far as it deems just, to the wishes of the creditors, contributories, shareholders or members of the company, as proved to it by any sufficient evidence.

Marginal note:Solicitors and counsel representing classes of creditors

• 133 (1) A court, if satisfied that, with respect to the whole or any portion of the proceedings before it, the interests of creditors, claimants or shareholders — or, in the case of a federal credit union, members, creditors, claimants or shareholders — can be classified, may, after notice by advertisement or otherwise, nominate and appoint a solicitor and counsel to represent each or any class for the purpose of the proceedings, and all the persons composing any such class are bound by the acts of the solicitor and counsel so appointed.

• Marginal note:Service of solicitor

  (2) Service on the solicitor appointed to represent a class of notices, orders or other proceedings of which service is required shall for all purposes be, and be deemed to be, good and sufficient service thereof on all the persons composing the class represented by him.

• Marginal note:Costs

  (3) The court may, by the order appointing a solicitor and counsel for any class, or by subsequent order, provide for the payment of the costs of the solicitor and counsel by the liquidator of the company out of the assets of the company, or out of such portion thereof as to the court seems just and proper.