Creeping Statutory Obsolescence in Bankruptcy Law

Abstract

The current “piecemeal” approach to the reform of Canadian insolvency law came about because of the inability, over three decades ago, to get a comprehensive insolvency bill through Parliament. After several attempts to do so, a less ambitious approach was adopted that would focus on a number of discrete issues that were thought to be the most pressing. Although this undoubtedly led to the introduction of many desirable reforms, it also has had its dark side. While some portions of bankruptcy law have been revised to meet contemporary issues, other portions are in an ever increasing state of disrepair. The problem is one of creeping statutory obsolescence. This paper identifies three different aspects of this problem. In the first class, the difficulty is that the statute continues to adhere to outmoded approaches or terminology – the problem of archaic approaches. In the second class, the difficulty is that the original meaning or purpose of the provisions has been forgotten with the passage of time, or that changes in other areas of law have undercut the legislative provisions – the problem of deciphering forgotten meaning. In the third class, the difficulty is that the provision has lost its function and remains as a dead letter – the problem of vestigial provisions.