The Toronto Registrar's Court Committee met on November 1, 2023 and discussed the following topics. The Committee has asked that stakeholders review the notes to ensure that they are compliant with the Court's expectations. A printable copy of the meeting notes is available here.
 
MAG Update and Court Statistics:
 
Bankruptcy Court Filing Portal:
Caselines and the BSO portal will be used for the foreseeable future. Information sharing has begun, but the project will take years to implement in all Courts.
Timing for motion dates once requested is currently ten weeks.
Geographic Jurisdiction – Hamilton vs Toronto

• Legacy files are still heard in Toronto Court – continue to follow the paper trail.
• Review the Certificate of Appointment or filing to determine the divisional court, for example, Division No. 07 is Hamilton, Division No. 09 is Mississauga

Between January and October, 2023, the Court has heard or read 3675 matters, including:

• 641 Short Discharges
• 206 Long Discharges (under 59 minutes)
• 660 Trustee Discharges
• 950 Taxation of SRD or Bill of Costs
• 391 In Writing Motions
• 150 Zoom Motions under 1-hour
• 15 Special Appointments over 1-hour
• 80 requests for Special Appointments
• 69 Case Conference
• 606 In Writing Conditions Met

 

• The inventory of 89 Long Zoom Discharges from March was cleared by the end of August.
• The inventory of 594 Trustee discharges from March was cleared by the end of September.
• Currently doing August 2023 request forms for both Trustee discharges and Taxations.
• Taxations are being filed at an 80-100 a month pace.
• The January 2024 schedule was just released.

Filing of Court Materials:
 
There continues to be deficiencies in materials filed. LITs and Counsel are asked to be mindful of the following:

1. Hearings unable to proceed for the following reasons: 

1. No materials filed - 10% of hearings. Check Caselines three days before the hearing to ensure your material has been uploaded.
2. Improper service to the stakeholders
3. Improper swearing of affidavits
4. Failure to provide information on the SRD on what happened during the file administration

2. Uploading Materials:

1. Many Trustees are still appearing without draft orders, disposition sheets or case information sheets for discharge hearings.
2. Materials must be uploaded both to the BSO portal for the court file, and to Caselines for the Associate Justice to view. Many firms are still filing material to the portal but not uploading material to Caselines.
3. The Associate Justices do not have access to the BSO portal/court file.
4. Case Information Sheets are mandatory for each hearing until an order has been issued.
5. The Notice to Profession requires that materials be filed 5 days before the hearing. This has been slipping, and we have been getting Supplementary Reports uploaded the morning of, or occasionally during, the hearing.
6. Participation sheet should be uploaded 2 days prior to the hearing.

3. Supplemental Reports

1. These must be a proper report to the court.  The quality of the reports has decreased over time.
2. Reports must contain evidence for what is being sought and why it should be granted.
3. The report should outline what has happened over the years, including the story of the debtor’s insolvency and any relevant major events in the bankrupt’s life during that period.
4. Relevant information must be stated in the report, with exhibits serving as support for those statements. For example, stating only that “Notices of assessment are at Exhibit D” is insufficient. Rather, the Report should state, e.g., “Post-bankruptcy income tax returns have been filed, with no amounts owing. Notices of Assessment are attached as Exhibit D.”
5. Trustees must provide full and frank disclosure of material facts.
6. The deliberate omission of facts relevant to the relief sought is misleading and improper.

4. Conditions Met Supplemental Reports

1. Prior endorsements and orders should be included in your Report. Do not rely on pervious uploads being available or accessible though Caselines.
2. Where the date of bankruptcy was more than three years ago, the following must be provided by way of affidavit:
   1. Proof of tax compliance
   2. Disclosure of post-bankruptcy assets
   3. Disclosure of post-bankruptcy debt
3. If there was a credit ban or tax compliance, compliance must be demonstrated.

Division 1 Proposals:

1. Registrars Jurisdiction

1. Section 192(1) of the BIA outlines the Power of Registrars
2. Registrars cannot approve a Division 1 proposal that is opposed under s. 192 (1)(d) or items relating to DIP financing, extensions, sales process relief, etc.
3. Please review s. 192(1) before submitting material.

2. Materials

1. Materials must reveal prior insolvencies and other Section 173 facts.
2. The LIT is required to disclose any s. 173 facts in the LIT report. Section 59(3) of the BIA needs to be provided.
3. The Associate Justice will not approve a proposal which does not comply with s. 59(3)
4. LITs must outline efforts to obtain security if none is available to support proposal payments.

3. In-Writing Hearings for Proposal Approval 

1. Previously, draft orders were uploaded with the date of the IW hearing.
2. Unavoidable delays in the orders being signed potentially cause the appeal period to expire, or default to occur, before the orders were even signed.
3. Orders will be dated on the date signed, not the date it is scheduled to be heard.
4. Draft orders should be provided without a date.

4. Fee approval

1. Where fees are based on the terms of a Proposal and there is no breakdown in SRD or Affidavit of the calculation, the Trustee must explain how they calculate the fee of “15% of the funds available for distribution”
2. If you submit an FSRD for taxation and your fees are based on a percentage of funds available for distribution, please include how the rate was calculated in your report.
3. The Associate Justice wants to see the mathematical calculation in the report.
4. WIP is still required.

Additional issues:

1. Attendance at Court:

1. COUNSEL AND TRUSTEES SHOULD BE LOGGED IN 10-15 MINTUES BEFORE THE ZOOM HEARING.
2. The Trustee attending court should know the file and be prepared to answer questions regarding the Statement of Affairs, the s. 170 Report, any Supplementary Reports, and the bankrupt’s current situation.
3. Recommendations for Discharge are the Trustee’s responsibility, and must be offered. The recommendation is not the responsibility of the Court or opposing creditors.

2. Affidavit of Service or Sending

1. Specify whether the materials have been served on “known creditors” or “proven creditors.”
2. BIA has different requirements depending on the relief sought.
3. Saying the materials have been sent “to creditors listed on exhibit A” is not sufficient, as this does not confirm whether the right people have been properly served.

3. Affidavits of Trustee

1. Affidavits are regularly incomplete and not properly commissioned.
2. Writing “Exhibit 1” on a document does not make it admissible as an exhibit to the affidavit. Each exhibit must be properly commissioned.

4. Associate Justice Jurisdiction – WEPPA order in liquidating proposal

1. Discussion ensued relating to the eligibility of WEPPA and a liquidating proposal.
2. The claims are dischargeable.
3. Is it an order or a declaration?
4. Cases were shared for review among counsel and justices.

5. Consumer Proposal Court Revival

1. An explanation, including evidence, must be provided to explain why it is necessary to revive a CP, for example:
1. What caused the proposal to fail?
2. Is the Proposal still viable?
3. Will the revival prejudice any party?

6. In-Writing Orders for Consumer Proposal Revivals and other time-sensitive matters

1. Previously, draft orders were uploaded with the date of the IW hearing.
2. Unavoidable delays in the orders being signed potentially cause the appeal period to expire, or default to occur, before the orders were even signed.
3. There are occasionally other types of in-writing Orders where the date of the Order may trigger actions that need to be taken shortly after the date of the Order.
4. The Justices now advise that in-writing orders for consumer proposal revivals will now be dated on the date it is signed, not the date it is scheduled to be heard.

7. Reappointment of Trustee

1. Reappointment must meet the test in the BIA.
2. Evidence must be provided to demonstrate why the reappointment is being sought