Directive No. 32
Coming into force March 19, 2013
Trustee Electronic Recordkeeping
- In this Directive,
- "Act" means the Bankruptcy and Insolvency Act;
- "conversion" means the process of changing a record from one medium to another or from one form to another;
- "digitization" means the conversion of information that exists in print or paper form to digital or electronic form, resulting in the content being made available electronically;
- "electronic estate record" means an estate record originally created or subsequently generated in digital or electronic form, resulting in the content being made available electronically;
- "electronic recordkeeping system" means a system used to generate, collect, classify, store, retain and otherwise process electronic estate records;
- "electronically readable format" means information supported by a system capable of producing an accessible and useable copy;
- "estate records" means the books, records and documents as referenced in subsection 26(1) of the Act, regardless of format;
- "OSB" means the Office of the Superintendent of Bankruptcy;
- "paper-source estate record" means an estate record originally created or subsequently generated in print or paper form;
- "quality assurance" means a process or program for the systematic monitoring and evaluation of the various aspects of a project, service or facility to ensure compliance and that the standards of quality are being met; and
- "Rules" means the Bankruptcy and Insolvency General Rules.
- This Directive is issued pursuant to the authority of paragraphs 5(4)(b), (c) and (e) of the Act.
Purpose and Scope
- This Directive specifies the conditions, principles and minimum requirements for electronic recordkeeping by trustees to assist them in complying with their administrative and legal requirements to keep estate records under the Act, without dictating the types of technology required.
- This Directive applies to trustees and administrators, as defined in section 66.11 of the Act, who are required to keep estate records under the Act. For ease of reading, the term "trustee" in this Directive is to be read as including an administrator.
- This Directive shall be read in conjunction with Directive 17, Retention of Documents by the Trustee, and Directive 5R4, Estate Funds and Banking.
- This Directive shall be applied in conjunction with the requirements imposed by other statutes, whether federal, provincial/territorial or municipal, to maintain adequate books and records and to satisfy evidentiary requirements.
Retention Principles for Estate Records
- A trustee shall keep estate records in a manner that will ensure the accessibility, authenticity, integrity, reliability, readability and perennity of the information recorded therein. The integrity of a document is ensured if it is possible to verify that the information it contains has not been altered and has been maintained in its entirety, and that the medium used provides stability and the required perennity to the information.
- Estate records may be destroyed after the appropriate retention period has expired pursuant to Rule 68(1).
- Subject to the allowable fees and disbursements under the Act and Rules, the costs associated with the retention of estate records shall not be charged to the estate.
Retention Principles for Electronic Estate Records
- A trustee who digitizes a paper-source estate record shall ensure that the resulting electronic estate record is an intelligible, electronically readable reproduction of that document. The conversion must not result in the loss, destruction or alteration of information and data relevant to the estate record.
- Without limiting paragraph 10 of this Directive, a trustee who keeps estate records electronically shall ensure:
- the electronic estate records are retained in a format that does not change the information contained in the electronic estate records that was originally made, sent or received;
- the information in the electronic estate records is readable and perceivable by any person who is entitled to access or require the production of electronic estate records; and
- if electronic records are sent or received, any information that identifies the origin and destination of the electronic estate record, and the date and time when it was sent or received, is also retained.
- The trustee shall ensure electronic estate records are accessible and intelligible at all times and shall produce electronic estate records for inspection when required under the Act, regardless of where the electronic estate records are located and how they are stored, classified or indexed.
Electronic Recordkeeping System Requirements
- A trustee shall store electronic estate records in a secure electronic recordkeeping system that includes adequate controls to safeguard the accessibility, authenticity, integrity, reliability, readability and perennity of the electronic estate records processed and kept in that system, including, at a minimum, the following features:
- user authentication and permission controls;
- firewall and virus protection;
- disaster recovery and business continuity;
- audit trail capability to detail alterations; and
- system backups.
- Without limiting paragraph 13(d) of this Directive, audit trails shall contain sufficient information to provide evidence of the authenticity of stored electronic estate records, including information about changes to the electronic estate records stored in the system.
- Without limiting paragraph 13(e) of this Directive, a trustee shall ensure that procedures are in place to back up electronic estate records on a daily basis and shall ensure that backed-up copies of electronic estate records are stored in a secure off-site location.
- A trustee shall put in place a quality assurance process or program to ensure the electronic recordkeeping system remains compliant with this Directive.
Destruction of Digitized Paper-Source Estate Records
- Subject to paragraphs 18 to 20 of this Directive, a trustee may destroy a paper-source estate record that has been digitized and stored in a secure electronic recordkeeping system in accordance with this Directive.
- Prior to destroying any paper-source estate record that has been digitized, the trustee shall submit to the Designated Assistant Superintendent an attestation and declaration regarding his or her electronic recordkeeping system, as provided in Appendix A of this Directive. One attestation may be submitted for one or more individual trustees who work in the same firm and/or office, which shall be specified therein.
- A trustee shall not destroy a paper-source estate record after digitization until satisfied that no system failure will result in the loss of the digitized document.
- Pursuant to subsection 26(1) of the Act, regardless of digitization, a trustee shall not destroy the original signed copies of any minutes, proceedings had or resolutions passed at any meeting of creditors or inspectors until the appropriate retention period has expired pursuant to Rule 68(1).
External Service Providers
- A trustee is not relieved of his or her responsibilities under this Directive because of the use of an external service provider to carry out all or part of the functions of its electronic recordkeeping system.
Superintendent of Bankruptcy
Trustee Electronic Recordkeeping Attestation and DeclarationOriginal Subsequent
Name of individual trustee(s):Footnote 1
Name of firm (where applicable):
- I attest that the electronic recordkeeping system for which this attestation is being submitted is in compliance with Directive No. 32, Trustee Electronic Recordkeeping.
- I attest that the electronic recordkeeping system for which this attestation is being submitted includes, at a minimum, the following features:
User authentication and permission controls
Firewall and virus protection
Disaster recovery and business continuity
Audit trail capability to detail alterations
- I attest that the electronic recordkeeping system for which this attestation is being submitted has been verified and approved by an information technology (IT) specialist:Footnote 2
Name: [insert name of IT specialist or software provider]
Declaration and Signature
I, the undersigned, do solemnly declare that I am the individual trustee named in this attestation or that I am authorized to submit the present attestation on behalf of the individual trustees named herein, and that the information set out in this attestation is correct and complete in all respects.
Signature of individual trustee or authorized representative:
Dated at , this day of , 20
Date of receipt of the attestation and declaration by the Office of the Superintendent of Bankruptcy
Dated at , this day of , 20
- Date modified: