The Office of the Superintendent of Bankruptcy (OSB) is asking all Licensed Insolvency Trustees (LITs) to encourage debtors, on an informed consent basis, to provide self-identification data under Section II – Voluntary Self-Identification of the Estate Information Summary (EIS). For many years, self-identification information, such as gender identity, has been collected by LITs and communicated to the OSB, notably in the sworn Statements of Affairs. This information was included in the public records, pursuant to subsection 11.1(1) of the Bankruptcy and Insolvency Act (BIA), and the information had to be provided to any person who requested it. With the coming into force of the updated Statements of Affairs and EIS on January 1, 2022, this self-identification information has been moved to a new section of the EIS in order to better protect debtor’s personal information while also providing more options and clarity to debtors, including a non-binary gender option. This change allows both the OSB and LITs to protect debtors’ personal information.
We are providing the following anticipated questions with suggested answers to assist you in this regard. As mentioned below, analysis of this anonymized data supports the government of Canada’s commitment to equity, diversity and inclusion and helps to ensure that the insolvency system in Canada operates fairly for the benefit of all Canadians, no matter their gender or ethnicity.
Frequently Asked Questions
Question: Why is the OSB collecting self-identification information on the updated EIS and how will the data be used?
Answer: Previously, OSB forms only allowed a debtor to indicate whether their gender was male or female. In efforts to modernize this aspect of its forms, it was determined that a non-binary gender option should be added along with voluntary self-identification information. As part of the duty to supervise all matters related to the BIA, the Superintendent has the authority to collect statistical data and to require that LITs collect it, including self-identification information. Self-identification information, such as gender identity, has been collected by LITs and communicated to the OSB for many years.
The collection of self-identification data supports the government of Canada’s commitment to equity, diversity and inclusion. As part of the Superintendent’s broad duties and responsibilities to supervise and maintain the integrity of the insolvency system, analysis of anonymized data will help shine a light on any unintended barriers or consequences in the insolvency system in Canada and allow the OSB to consider changes necessary to ensure it operates fairly for the benefit of all Canadians, no matter their gender or ethnicity.
The OSB will use anonymized self-identification data for statistical purposes, and to inform public policy research and development. Self-identification information will be reported and considered in aggregate statistics to ensure protection of the identity of individuals.
Question: Is the information collected confidential?
Answer: Yes. Self-identification information is collected, used, disclosed, retained and disposed of by the OSB, as a government institution, in accordance with the Privacy Act and the Access to Information Act. The information will also be managed by the OSB in accordance with Treasury Board Secretariat policies, directives and guidelines on information management and protection of personal information. Additionally, because the self-identification information is included on the EIS, rather than the Statement of Affairs, the information will not form part of the public record pursuant to s. 11.1 of the BIA.
Question: How should LITs manage the self-identification information collected from debtors?
Answer: As noted above, information collected under Section II – Voluntary Self-Identification is excluded from the public record. While neither the Privacy Act nor the Access to Information Act apply to LITs, as they are not government institutions, they should ensure the personal information collected from debtors is kept confidential and is protected in accordance with the Personal Information Protection and Electronic Documents Act (PIPEDA). LITs are also bound by their Code of Ethics to keep confidential this personal information collected in a professional capacity and they may not use or transmit, other than to the OSB, the self-identification information. LITs' responsibilities and liabilities in that respect are the same whether the personal information relates to self-identification information or to other information, e.g. information obtained for the calculation of surplus income.
Question: Will debtors have to sign the EIS in order to give their consent?
Answer: Yes. While the self-identification questions are optional, they provide important data on the Canadian insolvency system. Debtors should be informed about the purpose and use of the information, that it is voluntary, and sign Section II – Voluntary Self-Identification in order to indicate their informed consent for its completion, should they choose to answer any or all of the questions. Debtors also have the option to indicate: “I prefer not to answer.”
Question: Why are debtors asked to sign the EIS to give their consent?
Answer: Debtors are asked to sign Section II – Voluntary Self-Identification of the EIS to indicate their informed consent to the collection, disclosure, and use by the OSB of their personal information for the purpose of statistical analysis, public policy research, and program development. The debtors’ signature only relates to Section II – Voluntary Self-Identification. The debtors’ consent and/or signature in Section II – Voluntary Self-Identification in no way implies the debtor is in agreement or consented to the other sections of the EIS. Debtors are not required to review information other than Section II – Voluntary Self-Identification before signing it.
As noted above, while important and to be encouraged, Section II – Voluntary Self-Identification is optional and has to be signed only if the debtors choose to answer any or all of the questions. Although the requirement for debtors, should they choose to answer any or all of the questions, to sign Section II – Voluntary Self-Identification of the EIS is new, LITs are used to collecting and managing debtors signatures in their professional engagements, notably on the Statements of Affairs.
Question: Considering that the self-identification questions are optional, could LITs choose not to present or ask them to debtors?
Answer: No. The Superintendent has the authority to require LITs to collect and provide such information as the Superintendent may require. The OSB fully expects every LIT to maintain high standards of ethics, to perform their duties and carry out their functions with competence and due care, and to fully cooperate with the Superintendent and the OSB, as stated in sections 34, 36, and 37 of their Code of Ethics.
Question: If the EIS is amended, will debtors have to complete and sign the EIS?
Answer: No. The debtors' personal information and signature in Section II – Voluntary Self-Identification should only be provided once with the original EIS. LITs will be able to file an amended EIS without completing this section or asking the debtors to sign it again. Should debtors wish to correct or annotate their personal information in Section II – Voluntary Self-Identification after the original EIS has been filed, LITs should advise them to contact the OSB National Service Centre.
Question: Will the EIS be rejected in E-filing if the self-identification questions are not completed?
Answer: No. This section of the EIS is not mandatory so there will be no impact on the filing of the EIS if a debtor chooses not to answer the questions.