Draft Directive No. 1R5, Counselling in Insolvency Matters

Issued:

(Supersedes Directive No. 1R4 issued on January 29, 2018, on the same topic.)

Interpretation

In this Directive,
- “Act” or “BIA” means the Bankruptcy and Insolvency Act;
- “Assign” means the selection by an LIT of a BIA Insolvency Counsellor who is registered against the LIT’s licence, to provide insolvency counselling on a specific insolvency filing;
- “Bankrupt” is as defined in section 2 of the Act;
- “BIA Insolvency Counsellor” means an individual registered by an LIT with the OSB and for whom the LIT is accountable, whom the LIT may assign to provide insolvency counselling on a specific insolvency filing in fulfillment of the LIT’s duties pursuant to subsection 157.1(1) and paragraph 66.13(2)(b) of the Act, and in accordance with this Directive;
- “Debtor” is as defined in section 2 of the Act;
- “Insolvent person” is as defined in section 2 of the Act;
- “Intermediary” means a third-party individual or organization who, in return for direct or indirect consideration, provides advice to insolvent persons in relation to the BIA or to any aspect of the insolvent persons’ finances, or acts as a go-between with insolvent persons and LITs. This includes those who derive consideration or a benefit from selling insolvent persons a range of services before, during, or after an insolvency filing under the BIA. Such services include, but are not limited to: advocacy, preparing information for a debtor in relation to an insolvency proceeding, representation, restructuring services, credit rebuilding, loans in various forms, or insurance;
- “Licensed Insolvency Trustee (LIT)” means a trustee or licensed trustee, as defined in section 2 of the Act and an administrator of consumer proposals as defined in section 66.11 of the Act;
- “LIT’s authorized office” means an office that has been registered with the OSB and is distinct and physically separate from any office of an individual who is: (a) ineligible to be registered against an LIT’s licence pursuant to paragraph 12 of this Directive; and, (b) an unlicensed third party operating in the debt advisory industry;
- “LIT-in-Charge” means, where an LIT firm operates under a corporate licence, the individual LIT authorized to act on behalf of the corporate LIT in respect of the corporate licence;
- “OLAA” means the OSB Licence Administration Application;
- “OSB” means the Office of the Superintendent of Bankruptcy;
- “PCIC” means the Practical Course on Insolvency Counselling, a course offered by the Canadian Association of Insolvency and Restructuring Professionals (CAIRP) and recognized by the OSB as confirming that individuals possess: (a) the knowledge and ability to perform BIA insolvency counselling; and, (b) knowledge of the BIA insolvency counselling curriculum;
- “Referral Arrangement” means an arrangement characterized by a pattern of activity whereby an individual or organization directs debtors to specific LITs for a professional engagement, and as consideration for the referrals, the LIT demonstrates a pattern of providing for their BIA insolvency counselling obligations by directing all or a proportion of their individual bankrupts or consumer debtors to the individual or organization that arranged the referrals. Referral arrangements may also arise from other direct and indirect exchanges of consideration;
- “Referral Arranger” means an individual or organization in the debt advisory industry (whether for-profit or not-for-profit) that participates in a formal or informal referral arrangement with an individual LIT or corporate LIT;
- “Register” is the act of attesting and verifying that an individual meets the registration requirements defined in this Directive. Once registration is validated, the OSB shall consider the conduct and actions of the registered individual with regard to the delivery of insolvency counselling services and compliance with this Directive as if it were the conduct of the LIT, with regard to any and all obligations associated with the LIT’s licence;
- “Rules” means the Bankruptcy and Insolvency General Rules made pursuant to subsection 209(1) of the Act;
- “Third-party office” means the office of a registered third-party BIA Insolvency Counsellor.

Authority and Purpose

This Directive is issued pursuant to the authority of paragraphs 5(4)(b) and (c) of the Act and in accordance with section 157.1 and paragraph 66.13(2)(b) of the Act.
Subsection 157.1(1) and paragraph 66.13(2)(b) of the Act require that the LIT provide, or provide for, counselling for an individual bankrupt or consumer debtor in accordance with directives issued by the Superintendent.
Consistent with relevant BIA provisions that apply to an LIT, the purpose of this Directive is to:

(a) Identify the accountability and duties of an LIT with regard to providing, or providing for, insolvency counselling;

(b) Establish the requirements necessary for an LIT to register a BIA Insolvency Counsellor whom the LIT may assign to provide insolvency counselling on a specific insolvency filing, an individual for whom the LIT accepts responsibility with regard to the provision of insolvency counselling; and,

(c) Establish the required content and process for the delivery of insolvency counselling to an individual bankrupt or consumer debtor.

Accountability for Insolvency Counselling

Having satisfied all the requirements to obtain a licence to act as an LIT, an LIT is qualified under and by virtue of the Act to provide insolvency counselling to individual bankrupts or consumer debtors.
An LIT is accountable for the provision of insolvency counselling to each individual bankrupt and consumer debtor on whose behalf the LIT has filed an insolvency proceeding. The accountability of the LIT is the same regardless of whether they provide counselling, or provide for it.
The LIT is required to maintain knowledge of the insolvency counselling curriculum, consistent with paragraphs 20 through 22 of this Directive.
An LIT shall fulfill their obligation to provide insolvency counselling personally, or by assigning on a specific insolvency filing: (a) an individual who has been registered as a BIA Insolvency Counsellor against the LIT’s individual licence or corporate licence; or, (b) another LIT. The LIT that filed the insolvency proceeding is accountable for the insolvency counselling provided by the assigned individual.

Registration of a BIA Insolvency Counsellor

Registration (Individual Licence)

Using the OLAA, an LIT is required to register against their individual licence any individual whom they propose to rely on as a BIA Insolvency Counsellor with regard to the fulfillment of their BIA obligations for the provision of insolvency counselling.
An LIT shall not register against their individual licence any individual whom they know, or should reasonably suspect, does not meet the eligibility requirements in paragraph 11 or is ineligible to be registered pursuant to paragraph 12 of this Directive.
In accordance with the OSB registration process, and subject to the OSB’s review, the registering LIT shall attest that this individual meets the following requirements:

Education

(a) has successfully completed either a high school diploma or high school equivalency certificate (having passed the General Educational Development (GED) test), plus one of:

(i) a minimum of three (3) years of relevant practical work experience supporting an LIT or registered BIA Insolvency Counsellor; or,

(ii) a minimum of thirty (30) credit hours of post-secondary study completed in a diploma or degree program from a recognized post-secondary institution;

(b) has successfully completed the PCIC, or, at the date of issuance of this Directive, held a valid ICQC certificate;

Knowledge and Competencies

(c) has demonstrated, to the LIT’s satisfaction, a knowledge of the insolvency counselling curriculum as specified in this Directive and, as personally validated by the LIT. One method the LIT could use to validate this knowledge is, for example, by directly observing the individual providing a number of insolvency counselling sessions pursuant to paragraph 11(f) of this Directive that the LIT feels is adequate;

(d) possesses the necessary competencies, is known by the LIT to be of good character, and has the capabilities, knowledge, skills, and proficiency to provide insolvency counselling in accordance with this Directive as personally validated by the LIT. One method the LIT could use to validate these attributes is, for example, by directly observing the individual providing a number of insolvency counselling sessions pursuant to paragraph 11(f) of this Directive that the LIT feels is adequate;

(e) undertakes to complete, every two years, a minimum of three-and-one-half (3.5) hours of professional development training as acknowledged to be appropriate by the LIT;

Experience

(f) has obtained experience, to the LIT’s satisfaction, in providing insolvency counselling in each of the different required insolvency counselling sessions pursuant to this Directive to individual bankrupts or consumer debtors This experience could have been acquired, for example:

(i) by delivering a number of insolvency counselling sessions, that the LIT feels is adequate, under the direct observation of the registering LIT, an LIT of the same firm as the registering LIT, or a BIA Insolvency Counsellor registered against an LIT’s licence through the OLAA who already has a minimum of one (1) year of experience in providing insolvency counselling for the registering LIT or for an LIT of the same firm as the registering LIT; or,

(ii) by delivering a number of insolvency counselling sessions, that the LIT feels is adequate, as a BIA Insolvency Counsellor previously registered against an LIT’s licence through the OLAA, pursuant to this Directive and within thirty-six (36) months prior to the date of the application.

Liability and Employee Dishonesty Insurance

(g) is covered by the LIT’s professional liability insurance and employee dishonesty insurance (also known as fidelity insurance); or, in the case of a non-employee, has provided to the LIT current documentation demonstrating that the non-employee is covered by adequate professional liability insurance of their own.

Ineligibility

An individual is ineligible to be registered against an LIT’s licence as a BIA Insolvency Counsellor if they are directly or indirectly involved in activities that are inconsistent with the LIT’s obligations under the Act and the Rules, including those representing a real, potential or perceived conflict of interest. Activities which preclude an individual’s eligibility to be registered as a BIA Insolvency Counsellor include:

(a) being engaged in or involved with the provision of financing and lending services to individual bankrupts or consumer debtors including, but not limited to, credit rebuilding services, loans in various forms and insurance;

(b) acting as an Intermediary, or being employed by or associated an Intermediary; or

Registration (Corporate Licence)

In accordance with the requirements and application process specified in paragraphs 9 to 12 of this Directive, the LIT-in-Charge may register an individual against the firm’s corporate licence (in the OLAA), where one or more LITs within the same firm intend to provide for insolvency counselling by assigning the same individual and if this individual:

(a) is already validly registered by one of the firm’s individual LITs as a BIA Insolvency Counsellor pursuant to the requirements of the individual registration process specified in this Directive;

(b) is employed by the corporate LIT;

(c) is not employed by, nor receiving compensation from, Intermediaries, Referral Arrangers, individuals who are ineligible to be registered against an LIT’s licence pursuant to paragraph 12 of this Directive, or any other unlicensed third party operating in the debt advisory industry;

(d) does not have professional activities, investments, or financial interests related to insolvent persons; and,

(e) is covered as an employee under the corporate LIT’s professional liability insurance and employee dishonesty insurance (also known as fidelity insurance).

Providing, or Providing for, Insolvency Counselling

When assigning a BIA Insolvency Counsellor who is not an employee of the LIT’s firm, the LIT shall attest that neither the assigned BIA Insolvency Counsellor, nor an organization or person with which the assigned BIA Insolvency Counsellor has a relationship, is directly or indirectly receiving any other remuneration or consideration from the individual LIT or corporate LIT, other than the amount prescribed for providing the insolvency counselling sessions.
(1) When providing, or providing for, insolvency counselling for a specific insolvency filing, the LIT shall:

(a) submit to the OSB,

(i) at the end of each session the Report on Insolvency Counselling Session 1 or Report on Insolvency Counselling Session 2, as the case may be, signed by the individual bankrupt or consumer debtor and the LIT; or,

(ii) at the end of the second session, the Report on Insolvency Counselling Session 1 and Report on Insolvency Counselling Session 2, signed by the individual bankrupt or consumer debtor and the LIT; and,

(b) validate and attest that the BIA Insolvency Counsellor’s delivery of insolvency counselling was in compliance with the process and standards as set out in this Directive.

Delivery

In-person Insolvency Counselling

(1) An LIT shall provide, or provide for, the delivery of insolvency counselling in-person at the LIT’s authorized office.

(2) Subject to paragraph 16(1) of this Directive, when an LIT provides for insolvency counselling using a third-party, in-person insolvency counselling may be provided at the third-party office location of a registered BIA Insolvency Counsellor upon request of the individual bankrupt or consumer debtor, and if the LIT agrees it is feasible and appropriate.

Insolvency Counselling by Videoconference

(1) By exception, and for reasons of avoiding significant debtor inconvenience, an individual bankrupt or consumer debtor may request to the LIT that this LIT provides, or provides for, insolvency counselling by videoconference.

(2) Insolvency counselling by videoconference is subject to the following additional conditions:

(a) Both the LIT/BIA Insolvency Counsellor and the individual bankrupt or consumer debtor have the necessary means and capacity to participate and the LIT agrees it is feasible and appropriate;

(b) The individual bankrupt or consumer debtor only receives insolvency counselling at a location that offers privacy and that is not an office of an individual who is ineligible to be registered against an LIT’s licence pursuant to paragraph 12 of this Directive;

(c) Insolvency counselling by videoconference is provided only on an individual basis and not on a group basis, nor in the presence of an individual who is ineligible to be registered against an LIT’s licence pursuant to paragraph 12 of this Directive.

(1) Where extraordinary circumstances may prevent insolvency counselling from being performed in accordance with paragraphs 16(1) and (2) or 17(1) of this Directive, an individual bankrupt or consumer debtor may request, to the LIT, that insolvency counselling be provided by telephone or in-person at a location other than the LIT’s office, if:

(a) Both the LIT and the individual bankrupt or consumer debtor have the necessary means and capacity to participate and the LIT agrees it is feasible and appropriate;

(c) Insolvency counselling by telephone or at a location other than the LIT’s office is provided only on an individual basis and not on a group basis, nor in the presence of an individual who is ineligible to be registered against an LIT’s licence pursuant to paragraph 12 of this Directive.

(2) For the purpose of paragraph 18(1), extraordinary circumstances means cases were the individual bankrupt or consumer debtor:

(a) Has no means of transportation to the LIT or third-party BIA Insolvency Counsellor’s office;

(b) Resides at a distance from the LIT or the third-party BIA Insolvency Counsellor’s office that represents a significant barrier to travelling;

(d) Has a medical condition, illness, or incapacitation that represents a significant barrier to travelling to the LIT or third-party Insolvency Counsellors’ office, or is hospitalized; or

(e) Does not have the necessary means and capacity to participate to the insolvency counselling by videoconference.

Timing of Insolvency Counselling Sessions

The counselling referred to in section 157.1 and paragraph 66.13(2)(b) of the Act shall consist of the following two sessions:

(a) a first session to be conducted

(i) between ten (10) and ninety (90) days following the date of the initial bankruptcy event or the filing of a consumer proposal, or

(ii) within ten (10) days following the first meeting of creditors held pursuant to paragraph 57(c)(i) of the Act where a Division I Proposal was refused by the creditors; and

(b) a second session to be conducted after a period of at least thirty (30) days following the first session, but prior to the discharge, in the case of an individual bankrupt, or of the issuance of the certificate of full performance, in the case of a consumer debtor.

Content of Insolvency Counselling Sessions

(1) By the end of both insolvency counselling sessions, the LIT or assigned BIA Insolvency Counsellor shall have presented information and provided the individual bankrupt or consumer debtor with consumer advice on:

(a) budgeting;

(b) achieving financial goals;

(d) responsible use of credit; and,

(e) any other information the LIT or assigned BIA Insolvency Counsellor deems appropriate.

(2) Subject to paragraph 20(1)(a),

(a) the LIT or assigned BIA Insolvency Counsellor shall assist the individual bankrupt or consumer debtor in developing a budget tailored to their specific needs;

(b) the LIT shall retain, in accordance with paragraph 20(2)(a) of this Directive, a copy of the budget developed by the individual bankrupt or consumer debtor; and,

(3) Subject to paragraph 20(1)(b),

(a) the LIT or assigned BIA Insolvency Counsellor shall assist the individual bankrupt or consumer debtor in developing at least three financial goals tailored to their specific needs and an appropriate plan to achieve those goals;

(b) the LIT shall retain, in accordance with paragraph 20(3)(a) of this Directive, a copy of the financial goals developed by the individual bankrupt or consumer debtor.

(4) The LIT is encouraged to use online modules provided by the OSB to enhance the delivery of insolvency counselling sessions.

Where appropriate, the LIT or assigned BIA Insolvency Counselor shall assist the individual bankrupt or consumer debtor to identify the non-budgetary causes (such as gambling abuse, compulsive behaviour, substance abuse, employment and marital or family difficulties) that may have contributed to the individual bankrupt or consumer debtor’s financial difficulties, and, if appropriate, refer the individual bankrupt or consumer debtor to specialized counselling to deal with non-budgetary causes of insolvency.
Where the LIT or BIA Insolvency Counsellor provides counselling to a person who is financially associated with the individual bankrupt or consumer debtor, such counselling shall be provided at the same time as the insolvency counselling provided to the individual bankrupt or consumer debtor.

Remuneration

Once the LIT provides the insolvency counselling to the individual bankrupt or consumer debtor, the LIT may withdraw from the estate trust account, to the LIT’s benefit, the prescribed amount for the payment of the specific insolvency counselling session.
Where an LIT provides for insolvency counselling using a registered third-party BIA Insolvency Counsellor, the BIA Insolvency Counsellor shall receive remuneration from the LIT only in accordance with, and in the amount specified in the tariff prescribed by the Rules.
Where an LIT provides for insolvency counselling using a registered BIA Insolvency Counsellor, the LIT shall not make any payment prior to the counselling services having been provided, at which point the LIT may withdraw from the estate trust account and remit to the assigned BIA Insolvency Counsellor the prescribed amount for the payment of the specific insolvency counselling session.

Renewal

To maintain the registration of a BIA Insolvency Counsellor, the LIT shall, when fulfilling the LIT’s annual licence renewal requirements using the OLAA:

(a) validate that all information relating to the BIA Insolvency Counsellors registered against the LIT’s licence is accurate and up to date;

(b) attest that the BIA Insolvency Counsellor maintains the necessary competencies, capabilities, knowledge, skills, and proficiency to provide insolvency counselling in accordance with this Directive, and is known to the LIT to be of good character; and,

(c) validate that the LIT has retained documentation demonstrating that each registered BIA Insolvency Counsellor has completed a minimum of three-and-one-half (3.5) hours of appropriate professional development training in the previous twenty-four (24) months.

Cancellation

(1) In accordance with the established process, an LIT or the LIT-in-Charge may, at any time, cancel the registration of any BIA Insolvency Counsellor whom they have previously registered against their individual licence or corporate licence.

(2) For clarity, instances of failure to comply with the requirements of this Directive remain the responsibility of the LIT, and survive an LIT’s cancellation of a registration of any individual the LIT previously registered pursuant to this Directive.

Transparency

The Registry of Licensed Insolvency Trustees maintained on the OSB website, pursuant to paragraph 11.1(1)(c) of the Act, shall include the names of BIA Insolvency Counsellors registered against LITs’ licences.

Monitoring

Complaints raised against any assigned BIA Insolvency Counsellor shall be treated by the OSB as a complaint against the LIT who assigned the BIA Insolvency Counsellor.

Transitional Provisions

Insolvency Counselling Education

Until such a time as enrollment in the PCIC opens, Insolvency Counsellor’s Qualification Course (ICQC) certificates earned after the date of issuance of this Directive will be recognized as meeting the requirements of paragraph 11(b) of this Directive.

Insolvency Counselling Reporting Forms

(1) To report on insolvency counselling sessions completed prior to the coming into force of this Directive, the LIT may submit:

(a) the Report on Insolvency Counselling Session 1 and/or Report on Insolvency Counselling Session 2, in accordance with paragraph 15 of this Directive, if the insolvency software used by the LIT has been updated to make the forms available; or

(b) the Forms related to paragraphs 19 and 27 of Directive No. 1R4, Counselling in Insolvency Matters.

(2) For insolvency counselling sessions completed after the coming into force of this Directive, the LIT shall submit the Report on Insolvency Counselling Session 1 and/or Report on Insolvency Counselling Session 2, in accordance with paragraph 15 of this Directive.

Coming into Force

Enquiries

For any questions pertaining to this Directive, please contact the Office of the Superintendent of Bankruptcy at ic.osbregulatoryaffairs-affairesreglementairesbsf.ic@canada.ca.

Elisabeth Lang
Superintendent of Bankruptcy

Report On Insolvency Counselling Session 1 (Appendix A)

Report On Insolvency Counselling Session 1 (Title Form 1)

Report On Insolvency Counselling Session 2 (Appendix B)

Report On Insolvency Counselling Session 2 (Title Form 1)

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