Legal Blog

S. 38 BIA Orders

Re McEwen 2019 Ont SCJ

S. 38 of the Bankruptcy and Insolvency Act is designed for the benefit of creditors, not the bankrupt. A bankrupt has no standing to vary a s. 38 order. Further, a creditor moving for a section 38 order may do so on a without notice basis and, regardless, no notice has to be provided to the bankrupt. Finally, a trustee, regardless of its discharge, still remains the trustee of the estate for the performance of duties incidental to its administration and, therefore, has authority to give an assignment of its interest in property in accordance with s. 38.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.