Area of Law: Credit, Debt and Bankruptcy
Answer # 258
Licensed Insolvency Trustees: Services, fees and licensingRegion: Ontario Answer # 258
What is a Licensed Insolvency Trustee (LIT) ?
A licensed insolvency trustee (LIT) is a professional licensed and regulated by the Office of the Superintendent of Bankruptcy Canada (OSB). LITs were formerly known as trustees in bankruptcy. However, in April 2016, the OSB issued a directive requiring trustees to use the professional designation of licensed insolvency trustee to more accurately reflect the services they provide.
What services can an LIT provide?
Like other types of debt consultants and credit counsellors, LITs provide services such as debt solutions, as prescribed under the Bankruptcy and Insolvency Act (BIA).
Unlike other professionals, an LIT is an Officer of the Court, and as such, is the only debt relief professional in Canada legally allowed to administer insolvency procedures regulated under the BIA. Specifically, LITs are licensed to file, manage and supervise consumer proposals and bankruptcies. When filing a proposal or bankruptcy, LITs will guide the debtor through the entire process and will prepare and file the necessary paperwork, as well as deal directly with the creditors.
What services can’t an LIT provide?
The LIT’s statutory duties, owed to both creditors and the administration of the consumer proposal process, prevents LITs from acting as advocates for debtors when making consumer proposals.
LIT fees and expenses
LIT fees for consumer proposals and bankruptcy services are a standard amount set by the Federal Government in the BIA. In addition, there are government fees which must be paid to file these applications.
It is important to note that LITs have a potential financial conflict of interest in consumer proposals and bankruptcies, in that the more money that a debtor repays to the creditors under a consumer proposal or bankruptcy, the greater the financial compensation earned by the LIT.
1. Consumer proposal fees
Pursuant to the BIA, “the fees and expenses of the administrator of a consumer proposal” are as follows:
- $750 payable on filing a copy of the consumer proposal,
- $750 payable on the approval of the consumer proposal by the Court,
- 20% of the moneys distributed to creditors under the consumer proposal,
- The fee for filing a consumer proposal ($100),
- The costs of counselling at a rate of $85 per session if counselling is provided on an individual basis, and $25 per person per session if counselling is provided on a group basis,
- The fee payable to the registrar, and
- The applicable federal and provincial taxes for goods and services.
LIT fees for consumer proposals
The largest portion of the LIT’s fees for filing and administering a consumer proposal comes from their fee of 20% of the amount offered to the creditors. For example, if a debtor makes a consumer proposal to pay creditors $30,000, and the creditors accept it, the LIT will take $6,000 as part of their fee, and will also pay the necessary filing fees, registrar’s fees and taxes from the $30,000. So, the creditors will get a total of about 65%-75% of the proposal amount.
2. Personal bankruptcy fees
The cost of going bankrupt depends on several factors, including monthly income, assets that the debtor owns, and a minimum amount payable.
Base cost of filing bankruptcy. At a minimum, the cost of bankruptcy is $1,800.
Surplus Income cost. When you file for personal bankruptcy, you are allowed to keep all of your income up-to the threshold amount set by the government. If your earnings are above this limit (and depending on your family size) you are required to contribute half of that income, called surplus income, into your bankruptcy estate. The LIT will then distribute it to your creditors. Each year the OSB increases these limits based on inflation.
LIT fees for bankruptcies
LIT fees are regulated by the Federal Government and paid through the bankruptcy process. The LIT’s fees and expenses depend on whether the administration is considered summary or ordinary.
In a Summary administration, the LIT’s fees, after deducting necessary expenses and paying any secured creditors, are as follows:
- 10% on the first $975 or less of receipts,
- 35% on the portion of the receipts more than $975 but less than $2,000, and
- 50% on the portion of the receipts exceeding $2,000.
In addition to these amounts, an LIT in a summary administration may claim:
- The costs of counselling as set out in the legislation,
- Filing fees,
- Registrar’s fee under paragraph 1(a) of Part II of the schedule,
- Applicable federal and provincial taxes for goods and services, and
- A lump-sum of $100 in respect of administrative disbursements.
In an Ordinary administration the LIT fees may be decided by ordinary resolution at any meeting of creditors.
Requirements to become an LIT
To receive the LIT designation, a person must be licensed by the OSB. To be granted a licence, individuals must complete the Chartered Insolvency and Restructuring Professional Qualification Program (CIRP), which is administered by the Canadian Association of Insolvency and Restructuring Professionals (CAIRP).
To become an LIT, an individual must meet certain qualifications, including:
- Be of good character and reputation,
- Be solvent,
- Successfully complete the CIRP Qualification Program (CQP), National Insolvency Exam and the Insolvency Counsellor’s Qualification Course (ICQC),
- Pass an Oral Board of Examination, and
- Acquire a minimum of 2,400 hours of relevant insolvency experience throughout the duration of the Program.
Once they have met all the qualifications, candidates can apply for a trustee licence online. Most LITs either work for themselves or are a member of a firm. For more information on applying for an LIT licence, visit the OSB.
2. Other requirements needed to practice as an LIT
Along with being licensed, there are other requirements that LITs must meet in order to legally work as a trustee. For example, to work as a sole practitioner, the LIT shall:
- Not practice an incompatible activity,
- Have sufficient financial resources to properly administer professional engagements,
- Have adequate facilities and personnel to administer professional engagements in the district(s) in which he or she is entitled to act, and
- Have adequate professional liability insurance and adequate employee dishonesty (also known as fidelity) insurance.
3. Code of Ethics for Trustees
LITs must also adhere to the Code of Ethics for Trustees found in the BIA. These standards involve:
- The information that LITs must provide to creditors,
- The treatment of funds entrusted to LITs,
- Conflicts of interest,
- The sale and purchase of the property of a business or individual who has filed for bankruptcy, and
- Standards for advertising by LITs and for maintaining the good reputation of the LITs’ community.
Making a complaint against an LIT
If you wish to make a complaint against your LIT, you can contact the OSB. The OSB is responsible for keeping a record of all complaints received regarding an insolvency matter, and will conduct a review of such complaints to determine if there has been any non-compliance with the BIA.
The types of complaints that the OSB will investigate include:
- Complaints against LITs for issues such as failure to provide required notices or mishandling of trust funds, and
- Complaints concerning the Code of Ethics for Trustees.
The OSB will also handle complaints about creditors and debtors, such as complaints:
- About debtors who have hidden assets or not disclosed all of their liabilities or income to the LIT,
- Against creditors for filing incorrect claims, or for inappropriate collection attempts while the file is subject to a stay of proceedings or after the debt has been discharged, and
- Alleging a bankruptcy-related offence.
The OSB will respond to a complaint within 30 days of the date it is received, unless it is a particularly complex complaint, in which case it may take longer.
If the OSB believes the complaint is valid and there has been non-compliance with the BIA, it will determine if, and what corrective measures or sanctions should be undertaken. The OSB will inform you of its decision and the complaint will be closed.
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