1E9Ct5D

namely the federal Bankruptcy andInsolvency Act (the “BIA”) and the followingprovincial statutes: the Assignments andPreferences Act in New Brunswick andNova Scotia, the Judgment EnforcementAct in Newfoundland and Labrador, and theFrauds on Creditors Act in Prince EdwardIsland.If a transaction with a debtor has the effectof giving a specific creditor a preferenceover other creditors it will, with respect toany suit or proceeding brought to impeachor set aside such transaction, be presumedto have been made with “fraudulent intent”and to be an unjust preference. In order toestablish that a debtor committed apreference which is liable to be set asideunder section 95 of the BIA, a creditor mustfirst obtain a bankruptcy order against thedebtor.Under the Assignment and Preferences Act,a creditor must establish that the paymentwas made by the debtor at a time when heor she was in insolvent circumstances, wasunable to pay his or her debts in full andwas on the eve of insolvency.In Prince Edward Island, where a debtorgives a preference to another person orcreditor, for sixty days following thetransaction that resulted in the preferencethere is a rebuttable presumption that thetransaction was done to defeat, hinder ordelay other creditors from enforcing theirrights. A creditor may challenge atransaction after the sixty day period, butthe onus is then on the creditor to show thatthe transaction was done to defeat, hinderor delay the creditor’s collection efforts.In Newfoundland and Labrador,impeachable transactions are dealt withpursuant to the Judgment Enforcement Act.These provisions apply to the enforcementof creditor rights under any other legislationor the common law. As such, a creditorneed not have a registered judgment inplace to benefit from the protection offeredunder this statute. Generally speaking, anytransfer of property made by an insolventperson with the intent to defeat, hinder,delay or prejudice one or more of his or hercreditors is void as against the creditor soinjured, delayed or prejudiced.In addition, Newfoundland and Labradorhas a Fraudulent Conveyances Act, whichdefines certain transactions involving real orpersonal property as being void where thereis intent to defeat, delay, hinder or prejudicecreditors.The Statute of Elizabeth, an act ofparliament in England, laid the foundationsfor fraudulent transactions to be unwoundand is part of the law of all the AtlanticProvinces except Newfoundland andLabrador. The Statute of Elizabeth may beapplicable to set aside a conveyance ofproperty made to defraud a creditor even ifthe debtor was not in insolventcircumstances at the time of theconveyance.Enforcement of Creditors’ Rights 139