Oct 19, 2020

Does Bankruptcy Extinguish an Administrative Penalty?

Alberta Securities Commission v Hennig, 2020 ABQB 48 (CanLII)

Regulators are, with increasing frequency, authorized to impose administrative penalties. Administrative penalties are similar to fines but often imposed through a less formal process than that usually associated with fines. In Alberta Securities Commission v Hennig, 2020 ABQB 48, http://canlii.ca/t/j4rnk, Mr. Hennig had a $400,000 administrative penalty imposed for, among other things, “improper financial disclosure and misrepresentations”. The order was filed with the court. Mr. Hennig declared bankruptcy and the regulator received less than $1000 from the estate.

The regulator asserted that the administrative penalty was not extinguished by Mr. Hennig’s bankruptcy as it fell into the exceptions related to debts incurred through fraud, dishonesty or other reprehensible conduct. The Court agreed:

A purposive interpretation of the subsection in view of the intention of section 178 – to preclude dishonest debtors from benefitting from their dishonesty – would surely extend to a decision of a securities commission, charged with enforcing securities laws in order to protect the interesting public and promoting the integrity of the capital markets, in circumstances that would otherwise fit within the subsection.

The decision turned somewhat on the particular conduct underlying the payment order which may not apply to every administrative penalty. But the case does clarify that bankruptcy does not extinguish all administrative penalties.