Callisto Capital – Federal Court of Appeal finds that creditors’ personal liability, for being paid pre-bankruptcy out of GST/HST deemed-trust property, survives bankruptcy
ETA s. 222(3) provides that payments received by a secured creditor out of property that is subject to the deemed statutory trust under s. 222(1) for collected but unremitted GSTHST is itself subject to a deemed trust in favour of the Crown. However, s. 222(1.1) provides that s. 222(1) “does not apply, at or after the time [the debtor] becomes a bankrupt…to any amounts that, before that time, were collected…by the [debtor] as or on account of tax….”
Rennie JA found that, although s. 222(1.1) causes the deemed trust to disappear on bankruptcy, it does not eliminate the liability of a creditor for having received payments prior to bankruptcy that should have been subject to the Crown’s (at that point, still extant) priority under the s. 222(1) deemed trust, and instead were scooped by it.
In his dissenting reasons, Pelletier JA referred inter alia to s. 67(2) of the Bankruptcy and Insolvency Act, which reflected an intention that “Parliament put the Crown on the same footing as unsecured creditors” in a bankruptcy” – with an exception for employee source deductions, which “is explained by the fact that source deductions are amounts which belong to the employee in question…[and] this money does not belong to the employer anymore.”