词条 | Winding-up and Restructuring Act | ||
释义 |
The Winding-up and Restructuring Act[1] ({{lang-fr|Loi sur les liquidations et les restructurations}}) ("WURA") (the Act) is a statute of the Parliament of Canada that provides for the winding up of certain corporations and the restructuring of financial institutions. It was passed in 1985, and has been amended since. Predecessors of the act date back to 1882. HistoryFollowing the 1880 repeal of Canadian insolvency law at the federal level,[2] the Parliament of Canada returned to the field in 1882, passing legislation "for the purpose of winding-up insolvent banks, and insolvent trading companies," known as An Act respecting Insolvent Banks, Insurance Companies, Loan Companies, Building Societies and Trading Corporations.[3]{{sfn|Telfer|Welling|2008|p= 235}} Until the passage of the Bankruptcy Act in 1919,[4] it was the only federal statute governing insolvency, and it only extended to corporations. The 1919 Act covered individuals and corporations, so corporations were given a choice as to how to proceed with the liquidation of their affairs. In 1899, provision was made for compromises and arrangements to be made during winding-up proceedings, subject to the approval by the creditors and the court.[5]{{efn|one commentator has suggested that the provision has been largely unused since that date{{sfn|Telfer|Welling|2008|p= 266}}}} In 1966, bankruptcy proceedings were given precedence over winding-up proceedings,{{sfn|Telfer|Welling|2008|p= 236}} and any of the latter instituted prior to a bankruptcy petition or assignment coming into effect had to be abated forthwith.[6] In 1996, the Act was retitled as the Winding-up and Restructuring Act,[7] and provision was made for the restructuring of insurance companies.[8] Application
A company is deemed insolvent when:[13]
ExceptionsThe Act cannot be used when proceedings have already been instituted under the Bankruptcy and Insolvency Act,[15] but it is the only route for insolvent financial institutions to take, as they are not covered by the BIA.[16] It also offers a little-used route for corporations (other than those governed by the CBCA, CCoopA or CNPCA) to seek liquidation or winding-up that does not necessarily call for being insolvent (except for provincially incorporated companies, where the insolvency requirement is mandatory).{{sfn|Telfer|Welling|2008|loc= p.239, fn. 36}} Companies for which there is no provision for winding-up either within their native statutes or under applicable provincial legislation[17] comprise those incorporated under:{{sfn|IIC|2000|p= 6}}
OperationNature relative to the Bankruptcy and Insolvency ActThe WURA contains several provisions that stand in contrast to the BIA:
Nature of liquidatorIn Coopérants, Mutual Life Insurance Society (Liquidator of) v Dubois,[25] the Supreme Court of Canada held that a liquidator appointed under the Act was conceptually distinct from a trustee in bankruptcy appointed under the Bankruptcy and Insolvency Act: {{cquote|Contrary to what occurs in the case of bankruptcy, the company continues to own its property, which is not transferred to the liquidator. Under s. 33 of the Winding‑up Act, the liquidator takes all the company's property, effects and choses in action "into his custody or under his control"...[26] The liquidator is an officer of the court, appointed by the court to perform the functions prescribed by the Act and exercising his powers and performing his duties under the court's supervision. The corporate state and all the powers of the corporation continue after a winding‑up order is made; but from the time of such order the corporation is to cease to carry on business, except in so far as the liquidator considers it necessary for its beneficial winding up (s. 19). Even then, the liquidator must have the court's approval to do so under s. 35.[27] }} See also
Further reading
Notes{{notelist}}References1. ^{{cite web|title=Winding-up and Restructuring Act (R.S.C., 1985, c. W-11)|url=http://laws-lois.justice.gc.ca/eng/acts/W-11/index.html |accessdate=December 31, 2011}} 2. ^{{Cite canlaw|short title =An Act to repeal the Acts respecting Insolvency now in force in Canada|abbr =S.C.|year =1880|chapter =1|link= https://hdl.handle.net/2027/mdp.39015074701296?urlappend=%3Bseq=171}} 3. ^{{Cite canlaw|short title =An Act respecting Insolvent Banks, Insurance Companies, Loan Companies, Building Societies and Trading Corporations|abbr =S.C.|year =1882|chapter =23|link= https://hdl.handle.net/2027/mdp.39015074701197?urlappend=%3Bseq=294}} 4. ^{{Cite canlaw|short title =The Bankruptcy Act|abbr =S.C.|year =1919|chapter =36|link= https://archive.org/stream/actsofparl1919v01cana#page/n339/mode/2up}} 5. ^{{Cite canlaw|short title =The Winding Up Amendment Act, 1899|abbr =S.C.|year =1899|chapter =43|section=3|link= https://hdl.handle.net/2027/mdp.39015074723068?urlappend=%3Bseq=361}}, now ss. 65-66 of the current Act 6. ^{{Cite canlaw|short title =An Act to amend the Bankruptcy Act|abbr =S.C.|year =1966-67|chapter =32|section=21|link= https://archive.org/stream/actsofparl196667v01cana#page/244/mode/2up}} 7. ^{{Cite canlaw|short title =An Act to amend, enact and repeal certain laws relating to financial institutions|abbr =S.C.|year =1996|chapter =6|section=133|link= https://archive.org/stream/actsofparl1996v01cana#page/n179/mode/2up}} 8. ^1996 Act, s. 161 9. ^{{Cite canlaw|short title =Canada Business Corporations Act|abbr =R.S.C.|year =1985|chapter =C-44|section=3|subsection=3|link= http://laws-lois.justice.gc.ca/eng/acts/C-44/section-3.html}} 10. ^{{Cite canlaw|short title =Canada Cooperatives Act|abbr =S.C.|year =1998|chapter =1|section=3|subsection=4|link= http://laws-lois.justice.gc.ca/eng/acts/C-1.7/section-3.html}} 11. ^{{Cite canlaw|short title =Canada Not-for-Profit Corporations Act|abbr =S.C.|year =2009|chapter =23|section=3|subsection=2|link= http://laws-lois.justice.gc.ca/eng/acts/C-7.75/section-3.html}} 12. ^WURA, s. 6(1) 13. ^WURA, s. 3(1) 14. ^WURA, s. 4 15. ^{{Cite web|title = Bankruptcy and Insolvency Act, S. 213 | url = http://laws-lois.justice.gc.ca/eng/acts/B-3/page-108.html}} 16. ^{{Cite web|title = Bankruptcy and Insolvency Act, S. 2, definition of "corporation" | url = http://laws-lois.justice.gc.ca/eng/acts/B-3/FullText.html}} 17. ^such as, in Ontario, the {{Cite canlaw|short title =Corporations Act|abbr =R.S.O.|year =1990|chapter =C.38|part= VI|link= https://www.ontario.ca/laws/statute/90c38#BK235}}, the {{Cite canlaw|short title =Business Corporations Act|abbr =R.S.O.|year =1990|chapter =B.16|part= XVI|link= https://www.ontario.ca/laws/statute/90b16#BK179}} or the {{Cite canlaw|short title =Co-operative Corporations Act|abbr =R.S.O.|year =1990|chapter =C.35|section= 161|link= https://www.ontario.ca/laws/statute/90c35#BK199}} 18. ^{{Cite canlaw|short title =Canada Corporations Act |abbr =R.S.C.|year =1970|chapter =C-32|link= http://laws-lois.justice.gc.ca/eng/acts/C-1.8/index.html}} 19. ^{{Cite canlaw|short title =Defence Production Act|abbr =R.S.C.|year =1985|chapter =D-1|section =6|subsection =1|link= http://laws-lois.justice.gc.ca/eng/acts/D-1/section-6.html}} 20. ^{{Cite canlaw|short title =Pension Fund Societies Act|abbr =R.S.C.|year =1985|chapter =P-8|section =3|link=http://laws-lois.justice.gc.ca/eng/acts/P-8/section-3.html}} 21. ^WURA, ss. 96-99 22. ^WURA, s. 100(2) 23. ^WURA, s. 94 24. ^WURA, s. 72 25. ^{{cite CanLII|litigants=Coopérants, Mutual Life Insurance Society (Liquidator of) v Dubois|link=|year=1996|court=scc|num=242|format=canlii|pinpoint=|parallelcite=[1996] 1 SCR 900|date=1996-04-25}} 26. ^Coopérants, par. 30 27. ^Coopérants, par. 33, citing {{cite book |last= Sutherland|first= Harry|date= 1993|title= Fraser and Stewart: Company Law of Canada|url= |location= Toronto|publisher= Carswell|page= 845|isbn= 0-459-56778-0|edition= 6th}} 4 : Canadian federal legislation|Canadian insolvency legislation|1882 in Canadian law|Corporate law |
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