Directions to the trustee
What is a conservatory measure?
The Superintendent of Bankruptcy puts in place conservatory measures when a bankruptcy or insolvency estate needs protection. It might be in cases of Licensed Insolvency Trustee (LIT) malfeasance or if serious wrongdoing on the part of a LIT puts estate files at risk. Conservatory measures may also be put in place if a LIT becomes ill or dies without a valid succession agreement. Finally, conservatory measures may be put in place if a LIT, for whatever reason, has allowed the administration of his or her practice to become substandard.
In the matter of:
Donna M. Leitch
Directions for Conservatory Measures
(Section 14.03 of the Bankruptcy and Insolvency Act)
Whereas the Bankruptcy and Insolvency Act (the Act) provides the Superintendent of Bankruptcy (the Superintendent) with the general power to supervise the administration of all estates and matters to which the Act applies;
Whereas Donna M. Leitch (the trustee) is the holder of an individual license as trustee in bankruptcy;
Whereas an investigation made by the Superintendent pursuant to section 5(3)(e) of the Act revealed that the trustee had a number of deficiencies in her administration and control of estate trust funds;
Whereas the trustee has failed to maintain employee fidelity insurance or a bond or other suitable financial arrangement, which is a condition of practice;
Whereas a Practice Review commenced in March of 2006 has revealed a number of banking and financial deficiencies detailed below;
Whereas the trustee has drawn funds without authorization from the consolidated trust account;
Whereas in her administration of the summary bankruptcy consolidated trust account the trustee has failed to comply with subsection 25(2) of the Act, which requires that all payments made by a trustee be by cheque drawn on the estate account;
Whereas the trustee has failed to comply with the provisions of Directive 5R, Estate Funds and Banking, which sets out the minimum standards for the accounting for and proper custody of estate trust funds, particularly by:
- failing to maintain up-to-date books and records, including a control ledger, of estate funds;
- failing to advise the Division Assistant Superintendent, in writing, of all outstanding errors that have not been corrected within seventy-five (75) days of the bank statement date;
- failing to adequately document the monthly bank reconciliation with a complete, detailed list of outstanding cheques and deposits, including any cheques outstanding for more than six (6) months, as required;
- permitting the payment of personal expenses from a trust account;
- permitting trust accounts to be overdrawn and not immediately correcting the transactions that caused the overdraft; and
- maintaining a sub-account within the consolidated trust account;
Whereas the deficiencies in the operation and administration of the consolidated trust account identified above have resulted in a reconciliation that is unverifiable;
Whereas the trustee failed to provide a requested response to an Audit Report that was issued to her on May 27, 2004, which identified a number of similar issues as described in these Directions;
Whereas the trustee has failed to ensure that adequate human resources are available to satisfactorily conduct and conclude the administration of estates under the trustee's supervision;
Whereas I believe on reasonable grounds that the estates require protection;
Whereas the Superintendent may, for the protection of an estate, exercise the powers set out in subsection 14.03(1) of the Act, in the circumstances referred to in section 14.03(2) of the Act;
Whereas the Superintendent has delegated to me, in accordance with section 14.01(2) of the Act, the powers of the Superintendent as specified at section 14.03(1) of the Act, in the circumstance referred to in section 14.03(2)(b), a copy of which delegation is attached, along with copies of sections 14.01, 14.02 and 14.03 of the Act;
I, Ann Speers, in my capacity as delegate for the Superintendent, direct:
That, pursuant to section 14.03(1)(a) and (b) of the Act, the trustee shall take all reasonable steps to comply with the directions regarding new estates and banking, which are attached to these directions for conservatory measures, and to aid in their completion;
That, pursuant to section 14.03(1)(a) of the Act, the trustee shall not open any new trust accounts;
That, by close of business day on April 28, 2006, pursuant to section 14.03(1)(a) and (b) of the Act, the trustee is to enter into a signed contract with an auditor (the “Auditor”), who must be approved by the undersigned and who will agree to provide the following services:
- the Auditor will reconcile all of the trust accounts for all open estate matters currently being administered by the trustee, which reconciliation must comply, at a minimum, with all provisions set out in the Directive 5R–Estate Funds and Banking issued November 1st, 2004;
- the Auditor will prepare and provide to the undersigned, documentary evidence of the reimbursement of all estate trust accounts in the name of, administered by or any other way in the control of the trustee;
- the Auditor will agree to undertake to complete the work no later than June 30, 2006, unless otherwise instructed by the undersigned;
That all expenses related to the Auditor and to compliance with these directions shall be borne by the trustee.
That these directions take effect immediately and will stay in place until such time as the undersigned is satisfied that the estates no longer require protection;
That, pursuant to section 14.03(4) of the Act, a person who complies with this direction is not liable for any act done by that person only to comply with this direction.
Signed at the City of Toronto Ontario, this 27th day of March, 2006.
Assistant Superintendent, Trustee Compliance
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