Lending and taking security in Canada: overview

A Q&A guide to finance in Canada. The Q&A gives a high level overview of the lending market, forms of security over assets, special purpose vehicles in secured lending, quasi-security, negative pledge clauses, guarantees, and loan agreements. It covers creation and registration requirements for security interests; problem assets over which security is difficult to grant; risk areas for lenders; structuring the priority of debt; debt trading and transfer mechanisms; agent and trust concepts; enforcement of security interests and borrower insolvency; cross-border issues on loans; taxes; and proposals for reform.

To compare answers across multiple jurisdictions, visit the Finance Country Q&A tool. This article is part of the global guide to finance. For a full list of contents visit www.practicallaw.com/finance-mjg.

Alison R. Manzer, Cassels Brock & Blackwell LLP
Contents

Overview of the lending market

1. What have been the main trends and important developments in the lending market in your jurisdiction in the last 12 months?

Sponsor-based funding had substantially disappeared as weakness emerged for the primary sponsors (that is, the hedge and private equity funds). With many of those sponsored funds now in very liquid states and credit quality restored, specialised lenders are again interested in sponsor-based funding and the market is gaining strength.

The asset-based lending sector is currently liquid, and lenders are chasing the few suitable deals, relaxed covenants, increasingly thin spreads and reduced fees. Asset protection terms remain prevalent and credit quality remains the focus. However, with the appetite for loans outstripping demand, there is some spread compression and a lowering of costs.

During the last year there has been more interest in cash flow and covenant light loans, which is a return to the types of transaction that were seen before 2008. These transactions are generally now done using club or syndicate deals, with an emphasis on participation in the banking sector where there is a growing interest in enhancing returns while retaining the borrower credit quality. The excess of liquidity and shortage of good deals has resulted in borrowers with proven track records and credit quality being able to achieve covenant light loan transactions.

Project finance is increasingly attractive, and those with a public aspect and assurance of revenue stream are proving highly attractive in many of the finance sectors. Public interest and private institutional funding has been raised in the ten to 30 year funding range for project finance.

Construction funding has been returning to the market. Completion assurances through performance bonding and similar traditional project finance techniques are being used to provide the needed completion assurances.

Popular structures reflect an appetite for bullet bond structures, with amortising premiums remaining in the 17 to 25 basis point range. Size is increasingly important, with more liquid offerings requiring at least a Can$300 million offering in the Canadian market.

Securitisation as a funding source is returning, but many of the aspects of structured finance have not yet recovered. New issues have been particularly oriented to the automotive, utilities such as telecommunications, credit card, and higher quality residential mortgages. Commercial mortgage backed securitisation products are again showing some interest in the institutional market.

Leasing activity continues to be strong, and bank and near bank participants have been increasing their volumes based on operating lease structures, with some limited synthetic lease products available.

There is a limited appetite for the very complex structures of derivative based debt products. Structures using a more transparent, single level, derivative based structure are increasingly finding a place in the market.

 

Forms of security over assets

Real estate

2. What is considered real estate in your jurisdiction? What are the most common forms of security granted over it? How are they created and perfected (that is, made valid and enforceable)?

Real estate

Real estate is defined as land and the buildings and improvements which are constructed on, and attached to, that land. Real estate also includes an interest in rights or assets which are integrally part of land. This includes timber and timber rights, standing crops, easements, rights to minerals, hydro-carbons and similar, on or under the land, including the rights necessary to access and extract these assets.

Real estate can also include a strata interest, whether a strata or condominium right. This consists of ownership of the rights to an area within a building. That area does not necessarily need to be directly attached to land, but consists of a portion of a building identified by area including height above the land.

Common forms of security

A security interest in real estate is generally known as a charge, mortgage or hypothec.

Other forms of security instruments are used for real estate interests that do not comprise a direct ownership in the land. Leasehold interests are most commonly secured by a form of assignment for security, although some provinces recognise a form of mortgage or charge over a leasehold interest. Other interests such as rights of way, easements, and mineral rights, are secured to a lender using a three party agreement among the lender, the owner of the land and the party holding the right intended to be secured. These interests can be registered against the title registry relating to the real estate.

Formalities

Form of instrument. The form of instrument required to take a security interest in real estate (whether an ownership interest or a contractually created interest such as lease, easement or right of way) is dictated by provincial statutory requirements governing interests in real estate. The basic forms are similar between provinces. There must be an agreement to grant the desired security interest to the lender, setting out:

  • Agreed covenants as to the maintenance of the real estate.

  • Matters such as insurance.

  • Payment requirements.

  • The rights of the secured lender.

Terms can be modified by agreement, but essential terms such as rights to realise and sell, or to foreclose and take ownership of, the real estate are substantially dictated by the applicable statute.

Registration. The form for registration is dictated by the registry system relating to real estate in each province. Most provinces require an electronic submission of the registration document. The registration document generally sets out specific requirements as to:

  • Information relating to the form of the security.

  • The basis for the security interest and charge, such as the amount that is secured by the real estate, the rate of interest, the payment requirements, and the right to repay or prepay.

In all provinces the statutory form must be completed, submitted to the land registry office, accepted for registration and the registration confirmed. The registration, with the details of the security claim against the real estate, is reflected in the title register of the individual parcels of real estate. All title systems have a specific title register for each created parcel of real estate, and the title will reflect ownership, rights granted such as easements and rights of way, and security interests granted with regard to that property.

See also above, Common forms of security.

Tangible movable property

3. What is considered tangible movable property in your jurisdiction? What are the most common forms of security granted over it? How are they created and perfected?

Tangible movable property

The Personal Property Security Act of each of the provinces (other than Québec) defines tangible movable property as goods. Goods are tangible personal property other than chattel paper, documents of title, instruments, money and investment property. Goods include interests such as fixtures, crops and timber, which may otherwise be considered to form part of real estate. This definition is broad enough to effectively include all assets of tangible form, which do not comprise real estate, and includes equipment, machinery, inventory, transportation equipment including aircraft, railway equipment and ships.

Common forms of security

Personal property security is taken under a Personal Property Security Act in all provinces other than Québec (where it is taken under the essentially identical terms of the Québec Civil Code). Security in tangible personal property is taken by the use of a written security agreement and by completing the steps required for perfection of the security interest.

Formalities

Taking of security over tangible personal property in each of the provinces requires:

  • A written agreement granting a security interest.

  • Attachment of the security interest to the collateral. This requires the value be given and that the debtor has the rights in the collateral.

  • Completion of the formal steps for registration in the relevant personal property security register.

Perfection, the effect of perfection and priority of the security created is governed by provincial legislation. The legislation among each of the provinces is essentially identical. Registration may be required in more than one jurisdiction, depending on the location of the tangible personal property.

Financial instruments

4. What are the most common types of financial instrument over which security is granted in your jurisdiction? What are the most common forms of security granted over those instruments? How are they created and perfected?

Financial instruments

The most common types of financial instrument over which security is granted are:

  • Securities.

  • Securities entitlements.

  • Securities accounts.

  • An instrument that is a bill, note or cheque, or letter of credit.

If a financial instrument is a financial asset then it is subject to the relevant Securities Transfer Act in each of the provinces, which defines both a financial asset and a security.

Common forms of security

Security is taken over financial assets that comprise securities, using a written instrument granting the security interest and perfection under both the:

  • Relevant Personal Property Security Act, using registration in the registry.

  • Securities Transfer Act, using registration, possession of a certificate and control over the relevant account for uncertificated securities.

Security taken over other forms of financial instrument is taken under the terms of the Personal Property Security Acts. The Securities Transfer Act does not need to be considered as it deals only with securities and related assets. Security over other financial instruments is taken by the written grant of security interest, attachment, and registration or possession (under the Personal Property Security Act or the equivalent under the Québec Civil Code). Possession can be used to perfect an interest in financial instruments, negotiable documents of title and money while they are actually held as collateral. Otherwise, security must be perfected by registration in the relevant central registry. Security over financial instruments is governed by the separate laws of each province, but the law is essentially identical among the provinces.

Formalities

See above, Common forms of security.

Claims and receivables

5. What are the most common types of claims and receivables over which security is granted in your jurisdiction? What are the most common forms of security granted over claims and receivables? How are they created and perfected?

Claims and receivables

Receivables are defined under the Personal Property Security Act in each province. Receivables constitute a monetary obligation not evidenced by chattel paper or instrument. Personal property in Canada includes only chattel paper, documents of title, goods, instruments, intangibles, money and investment property. It does not differentiate other forms of claims. Accordingly, the most common types of claims and receivables are accounts and other claims that generally fit under the definitions of chattel paper and intangibles.

Common forms of security

Security over claims and receivables is taken by written agreement.

Formalities

The formalities consist of:

  • A written security agreement with a grant of security interest, and proper identification of the claims and receivables which may include future claims and receivables.

  • Perfection by attachment and registration in the relevant centre of registry

Personal property security is governed at the provincial level registration should therefore take place at the provincial central registration system for personal property security.

Cash deposits

6. What are the most common forms of security over cash deposits? How are they created and perfected?

Common forms of security

Personal property under the relevant provincial Personal Property Security Act includes money as personal property. Money is any medium of exchange authorised or adopted as part of the currency of the relevant country. Security is taken by a written security agreement, identifying the money which is the subject matter of the grant of security interest. Traceability must be considered in identifying the cash or money over which security is to be taken. If the cash is deposited in a deposit account, a control account agreement can be used for ease of realisation but is not required in the grant of security.

Formalities

The security interest is taken by:

  • A written security agreement.

  • Perfection by attachment and registration or possession. Possession perfects a security interest in money while the money is actually held as collateral. Money can be held as collateral through possession by control over an account where the money is deposited. Registration is otherwise the appropriate method of perfecting the security interest over cash deposits. Registration will perfect a security interest under personal property security systems in all personal property.

Intellectual property

7. What are the most common types of intellectual property over which security is granted in your jurisdiction? What are the most common forms of security granted over intellectual property? How are they created and perfected?

Intellectual property is not a separately defined category of personal property under the personal property security law or Québec Civil Code system. Intellectual property is a form of intangible. Intangibles are defined as all personal property that is not goods, chattel paper, documents of title, instruments, money or investment property.

Intellectual property is registered with the Canadian Intellectual Property Office. Registration is not required for the valid creation of intellectual property under trade mark or copyright. Intellectual property in Canada is recognised as:

  • Patents.

  • Trade marks.

  • Copyright.

  • Industrial design.

Copyright includes both artistic creations and computer programs.

Common forms of security

Security over intellectual property is taken by way of a written agreement granting the security interest.

Formalities

The formalities consist of:

  • A written security agreement.

  • Perfection by attachment and registration under the relevant personal property security registration system in the relevant province. The relevant province is the province of the head or executive office of the entity.

It is possible to register notice of the security interest in certain of the Canadian intellectual property registers, but this does not create or effect the security interest.

Problem assets

8. Are there types of assets over which security cannot be granted or can only be granted with difficulty? Which assets are difficult or problematic when security is granted over them?

Assets fall under either personal property or real property. There are essentially no assets over which security cannot be granted. Some assets require different steps to perfect the security interest, and others careful consideration over conflicts of laws principles as to where the security must be taken.

Future assets

The Personal Property Security Acts and Québec Civil Code contemplate the ability to take a security interest over future assets. The only requirement is that the grant of the security interest and registration is sufficiently clear as to the future assets, including proceeds of the assets. However, future assets cannot be the subject matter of a security interest granted with regard to real property. This is because real property interest security can only be taken once the real property interest is owned by the debtor granting the security interest.

Fungible assets

Fungible assets can be the subject matter of a grant of security interest. The grant of security interest must be sufficiently clear as to the class and nature of the assets over which security is taken. In the event of competing security interests there may be challenges among secured creditors holding an interest over the same fungible bulk. In addition, traceability issues may impose difficulties in completing effective realisation.

Other assets

Some assets may require additional steps to be taken to grant and perfect a security interest. For example, accounts receivable from the Federal Government must comply with the Financial Administration Act. This requires an absolute assignment and a notice to the Federal Government for completion of the security interest.

 

Release of security over assets

9. How are common forms of security released? Are any formalities required?

Security over personal property and real estate is released relatively easily. The personal property security systems and the register under the Québec Civil Code provide for a simple form of statutorily dictated discharge document. This is filed electronically with the registry system, resulting in the discharge. Discharges are inexpensive, and quickly and easily accomplished. Real property law in each of the provinces requires the delivery of a specific form of written discharge. This can be in paper or electronic form, depending on the province. The forms are statutorily dictated, easily completed, and can be filed with immediate effect. Discharges for real property are relatively simple, and inexpensive, to complete.

 

Special purpose vehicles (SPVs) in secured lending

10. Is it common in your jurisdiction to take security over the shares of an SPV set up to hold certain of the borrower's assets, rather than to take direct security over those assets?

Special purpose vehicles are used in specialised types of financing, particularly in structured finance, securitisation and project finance. Where a special purpose vehicle is included in secured lending, it is common to take security over the shares of the special purpose vehicle, in addition to taking direct security over the special purpose vehicle's assets. It is not common to take only share security in the place of security over the assets.

 

Quasi-security

11. What types of quasi-security structures are common in your jurisdiction? Is there a risk of such structures being recharacterised as a security interest?

Sale and leaseback

Sale and leaseback transactions are frequently used as a financing vehicle. Sale and leaseback transactions must be carefully considered to as to their fit with other lending transactions that may be in place. Many lending transactions restrict the ability to undertake sale and leaseback arrangements. A sale and leaseback can be readily structured using a true sale form of conveyance, with an operating or finance leaseback to the funder. The risk for the funder becomes those relating to ownership of assets and the role of the lessor.

Factoring

Factoring is reasonably common, particularly in certain industries. Factoring can either consist of:

  • True factoring, with the sale of receivables.

  • Finance factoring, which is effectively a form of asset based lending.

Factoring is documented either using a:

  • Receivables sale agreement.

  • Finance agreement with enhanced powers in connection with the collection and control of the accounts receivable which is the subject matter of the factoring arrangement.

Hire purchase

Hire purchase transactions are rarely used. Hire purchase transactions can be documented by a written agreement, with both parties protected by the terms of the agreement and the taking of security interests.

Retention of title

Retention of title or conditional sales agreements are used, but are less common than other forms of finance. It is more likely that a purchase money security interest vendor finance arrangement will be provided than a retention of title. Retention of title is not recognised by the personal property security systems or the Québec Civil Code (which deems them to be a loan based on security over the asset).

Other structures

Leasing (including operating leases, finance leases and synthetic leases) is common and forms a vital part of the equipment finance portions of the finance industry (including vendor finance). Leasing is structured using a lease contract. Leases may be registered as if they are a security interest under the Personal Property Security Acts and Québec Civil Code, depending on the terms of the lease.

 

Guarantees

12. Are guarantees commonly used in your jurisdiction? How are they created?

Guarantees are commonly used to support financing, whether secured or unsecured. Guarantees are provided by written agreement. The essential portions of the written agreement establish a business relationship but also waive defences that may otherwise be available to the guarantor. Guarantees are readily documented and enforceable throughout Canada.

 

Risk areas for lenders

13. Do any laws affect the validity of a loan, security or guarantee (or the terms on which they are made or agreed)?

Very few laws affect the validity of credit documentation and its related security and guarantees. In general, these relationships are actively recognised.

Financial assistance

Financial assistance does not impede the taking of a valid guarantee. Corporations can provide guarantees for a third party's obligations, essentially without restriction. In a few cases notice must be given to stakeholders. Individuals can give guarantees unless they are bankrupt or mentally incapacitated. Fraudulent conveyance concepts apply in only a very limited number of cases (for example, in the case of transfers at an under value just before or during insolvency).

Corporate benefit

Canada does not generally recognise the concept of corporate benefit. Corporations can provide guarantees and related financial assistance without a need for a generally equivalent benefit. Directors are subject only to the general duties to act in a reasonable and prudent manner.

Loans to directors

Corporations can provide loans to their directors, subject to the general duties of directors to act reasonably and prudently, and in the best interest of the corporation's stakeholders.

Usury

Usury is not generally encountered. Usury requires that the loan results in having a 60% per annum rate of interest. Interest is calculated including all payments made in relation to the loan, including fees and participation amounts. Usury generally only presents a problem where:

  • The loan is a very short term loan with a significant participatory element.

  • There is a very short term loan, with a significantly enhanced required payment.

Others

There are regulatory requirements as to the persons permitted to provide loans. The regulations in some cases restrict business activity in the country where the loan is intended to be undertaken by a regulated financial institution. The requirements to observe laws of general application, such as those protecting privacy of the information of individuals, must also be respected.

 
14. Can a lender be liable under environmental laws for the actions of a borrower, security provider or guarantor?

The lender is not liable under environmental laws for the actions of the borrower, security provider or guarantor (unless there is direct involvement, interference and control by the lender). Responsibility under environmental law requires an element of control over the actions or activities that lead to the environmental condition of the property. The mere taking or holding of security does not give rise to the requisite level of control.

If the lender takes steps under the security and those steps result in ownership of contaminated property, then the lender could become liable for the contamination. Control is a matter of fact dependent on the steps taken. Environmental law is a strict liability law with regard to the ownership of the contaminated real property.

 

Structuring the priority of debts

15. What methods of subordination are there?

The priority system for both personal and real property is based on the order of registration (first in time to register). There are limited circumstances in which that order of priority is altered (mainly under statute or by agreement). Subordination can be achieved by:

  • Contract between the parties.

  • Control over the order of registration.

  • Structuring techniques including the effective choice of the borrower within a corporate group.

Contractual subordination

Contractual subordination is expressly permitted under the laws of every province in relation to both personal property and real estate. Contractual subordination is documented by an agreement between the parties under which one party agrees to subordinate either its right to payment or security. The subordination contract's terms are not dictated or constrained by the application of law. Notice of the contractual subordination can be placed in the applicable register but this is not a legal requirement.

Structural subordination

Subordination can be achieved by locating the intended assets, loan and security with a member of a corporate group that does not otherwise bear the senior debt requirements of the balance of the group. The subordination is achieved by providing for a senior security position over the desired entity and assets. This is a common structuring technique.

Inter-creditor arrangements

Inter-creditor agreements are common. These include both the concepts of subordination and other concepts between the creditors such as:

  • Co-operation or priority entitlements with regard to realisation.

  • Standstill periods of time for collection.

  • Realisation steps by the subordinated lender.

  • Restrictions on change in loan terms.

Inter-creditor agreements achieve a broader range of business agreements between the parties than contractual subordination.

 

Debt trading and transfer mechanisms

16. Is debt traded in your jurisdiction and what transfer mechanisms are used? How do buyers ensure that they obtain the benefit of the security and guarantees associated with the transferred debt?

Debt trading is permitted but not widely done. Debt trading is accomplished by direct bilateral agreements between the parties, and traded by a sale and assignment transaction. In the sale and assignment transaction the debt is assigned, together with the benefit of the security and guarantees associated with the transferred debt. In the original drafting of the debt, security and guarantee documentation assignability is essentially always built in, allowing the lender to transfer and assign without the borrower's consent. In circumstances where a borrower's consent may be required, consent is usually eliminated at the time of default, allowing debt trading after default without consent.

 

Agent and trust concepts

17. Is the agent concept (such as a facility agent under a syndicated loan) recognised in your jurisdiction?

Agency concepts are used extensively, particularly in syndicated loan transactions. The agent concept is well recognised in law, and there are generally established approaches used to integrate the agency concept into the credit arrangements. Provisions similar to those developed for the US Loan Syndications and Trading Association (which have been reviewed and revised by the Canadian Bankers Association) are generally used. Agency arrangements under the laws of other countries are also recognised. The agent can enforce on behalf of the other syndicate lenders, and can hold security in their name and on behalf of the other lenders, among other roles.

 
18. Is the trust concept recognised in your jurisdiction?

Trust concepts are robust, well recognised and enforced. There are requirements to adjust language and terms for the Province of Québec. Trusts created under the laws of other countries are generally recognised, usually without a need for adjustment to Canadian law.

Trustees can hold security for other lenders and enforce on behalf of the lenders. There are essentially no restrictions on the agreements creating and governing the trust relationship. In the Province of Québec, certain terms and provisions must be inserted, and specific care should be taken when drafting the trust documentation.

 

Enforcement of security interests and borrower insolvency

19. What are the circumstances in which a lender can enforce its loan, guarantee or security interest? What requirements must the lender comply with?

The borrower and the lender are free to agree the terms relating to enforcement. A lender can enforce its loan, guarantee or security interest based on the terms agreed between the borrower and the lender. These rights generally tie into defined events of default, with limited periods for notice and a cure period.

Where enforcement is being undertaken by a secured lender, notice periods are statutorily dictated. Notice must be given:

  • Bankruptcy and Insolvency Act: ten days before taking steps to enforce on demand and commence realisation.

  • Personal Property Security Acts and Québec Civil Code: generally 15 days before the sale of assets (35 days for real estate), but this is province-specific and should be confirmed by province.

The Personal Property Security Act and the Mortgages Act in each province provide the terms that must be observed and the formalities for the realisation process.

Methods of enforcement

20. How are the main types of security interest usually enforced? What requirements must a lender comply with?

Personal property security interests are enforced by providing the appropriate notice as to whether the lender seeks to either:

  • Seize and sell the assets.

  • Take possession and effective ownership of the assets in satisfaction of the debt.

Notice periods are set by the relevant Personal Property Security Act or Québec Civil Code, specifying the time periods for notice for each of the two actions.

The most common method of enforcement is sale of the assets. The relationship between the borrower and the lender is generally set out in the terms of the agreement, and may include the use of a receiver or other third party for the purpose of assembling and undertaking the asset sale. The asset sale can be by private or public sale. Statute provides for default rights, but these are generally modified by the security agreement to meet the lender's usual requirements.

Real estate interests are enforced in the same way. On foreclosure (that is, taking of possession and effective ownership), the debt is extinguished against the taking of the real estate. Real estate can be held for a period of time by a mortgagee in possession, with the revenues being used to satisfy the claims. Sale notices including the form of notice and time periods are dictated by statute in each of the provinces.

Rescue, reorganisation and insolvency

21. Are company rescue or reorganisation procedures (outside of insolvency proceedings) available in your jurisdiction? How do they affect a lender's rights to enforce its loan, guarantee or security?

In the event of insolvency, a debtor anywhere in Canada can seek time and the ability to reorganise under either the federal:

  • Companies' Creditors Arrangement Act.

  • Bankruptcy and Insolvency Act.

The two processes differ as to notice periods and the number of mandatory statutory provisions. However, each requires court intervention and the undertaking of proceedings based on formal court applications and procedures. A lender in each case is stayed for a generally short period of time (which may be extended by court intervention). During the stay period the lenders cannot proceed to enforce the loan, guarantee or security. On expiry of the stay period or on a successful court application to lift the stay, the lender can proceed. The courts recognise the lender's rights as secured lender and have limited rights to allow additional priming loans with regard to the assets that they hold as security. Proceedings are intended to allow a general stay of creditors, but recognise the superior rights of secured lenders.

 
22. How does the start of insolvency procedures affect a lender's rights to enforce its loan, guarantee or security?

The start of formal insolvency procedures stay a lender's rights with regard to enforcing the loan, guarantee or security. These stay rights are short and are intended to not adversely affect the lender's potential recovery against the assets over which they hold security. The stay period is to allow the debtor the opportunity to commence reorganisation, but the reorganisation plan only binds the secured creditor on either:

  • The secured creditor's acceptance of the plans presented.

  • A vote of the class of creditors the secured lender is included in which approves these plans at the required majority.

 
23. What transactions involving loans, guarantees, or security interests can be made void if the borrower, guarantor or security provider becomes insolvent?

There are very few legal impediments affecting the validity of security and the ability to exercise rights under the loan agreements, guarantees and security documents for secured lending. The formal insolvency legislation includes the concept of transactions at an under value. This can result in transactions being void where both the:

  • Debtor has received conspicuously less than the fair market value of the property.

  • Transaction has occurred within one year before the bankruptcy event for an arm's length transaction, or five years for a transaction not at arm's length.

In addition, a transaction can be set aside under formal insolvency proceedings if it both:

  • Was undertaken with the intent of preferring a creditor over others.

  • Occurred within three months before the bankruptcy event for transactions at arm's length, or one year for transactions not at arm's length.

There is also limited provincial legislation allowing the court to set aside a fraudulent conveyance or preference.

 
24. In what order are creditors paid on the borrower's insolvency?

On the borrower's insolvency, the creditors are paid in the following order:

  • Employee wages. This is a superpriority charge over the bankrupt's current assets consisting of cash, accounts receivable and inventory for arrears of wages. This charge has priority ahead of all other creditors up to a limit of Can$2,000 per employee and for travelling sales people for disbursements up to Can$1,000 (section 81.3, 81.4, Bankruptcy and Insolvency Act).

  • Deemed trust amounts for unpaid federal employee-source deductions for income tax, employment insurance and the Canada Pension Plan.

  • Priority claim for unpaid suppliers, rights of farmers, fishermen and acquaculturists.

  • Pension plan contributions. This is a secured claim over all of the debtor's assets (section 81.5, Bankruptcy and Insolvency Act).

  • Canada Revenue Agency. If registered, a statutory lien has priority over secured creditors but is limited to the amount owing when the lien is registered.

  • Canada Revenue Agency goods and services (VAT) tax, where applicable. If registered, a statutory lien is a secured claim. It is subordinate to pre-existing secured claims but prior to subsequently registered claims.

  • Crown claims for environmental remediation. This is a first ranking superpriority secured claim against:

    • the debtor's contaminated real or immovable property;

    • any of the debtor's other real property or immovable property that is adjacent to that property and that is related to the activity that caused the environmental condition.

  • Real property tax and municipal loans (Municipal Act). The general priority of the lien continues. It is a priority with regard to the real property that is the subject of the tax or loan.

  • Crown claims in respect of provincial corporate tax (Corporations Tax Act). This applies if registered a general priority of lien over subsequently registered security. It is limited to the amount owing at the date of the registration of the lien (section 87, Bankruptcy and Insolvency Act).

  • Employer Health Tax Act or equivalent Crown claims in respect of health tax. General priority of the lien continues if the lien is registered providing security over subsequently registered security. The lien is limited to the amount as of the date of registration of the lien (section 87, Bankruptcy and Insolvency Act).

  • Claims of secured creditors over the assets in relation to which the security is properly perfected.

Where there is more than one creditor claiming security in an asset, the order of priority is determined under the provincial law relating to security over real property or personal property, as applicable. Generally priority is based on first in time to register. There are limited statutory provisions which may alter the order of claims. Subordination agreements can also alter the order of claims. If a security interest is not validly perfected, the claim is considered to be an unsecured claim and ranks behind the statutory priority claims, secured claims, preferred claims and ahead only of the equity claims.

 

Cross-border issues on loans

25. Are there restrictions on the making of loans by foreign lenders or granting security (over all forms of property) or guarantees to foreign lenders?

There are no general restrictions on a foreign lender providing loans to Canadians, and receiving the necessary credit agreements or grant of security. There are no restrictions on a foreign lender properly perfecting security under Canadian law. There are restrictions with regard to carrying on banking business in Canada which may require consideration if the foreign lender has a bank in its corporate group.

 
26. Are there exchange controls that restrict payments to a foreign lender under a security document, guarantee or loan agreement?

There are no currency controls.

 

Taxes and fees on loans, guarantees and security interests

27. Are taxes or fees paid on the granting and enforcement of a loan, guarantee or security interest?

Documentary taxes

No documentary taxes are payable on the registration of security interests. There are no taxes payable on the entering into of loan and guarantee agreements.

Registration fees

There are minimal registration fees to register both personal and real property security. These are generally nominal and are based on a flat rate fee in most provinces. There are some principal amount-based registration fees, such as in Newfoundland, for a limited number of real estate security registrations.

Notaries' fees

Notaries are not generally required for the taking or registration of security in any of the provinces, other than the Province of Québec. In the Province of Québec the requirement for a notary to be involved in real estate security involves some additional fees.

 
28. Are there strategies to minimise the costs of taxes and fees on the granting and enforcement of a loan, guarantee or security interest?

Strategies are not necessary, as taxes and fees are minimal on the granting of loan arrangements, guarantees or security interests. There are no taxes or fees on enforcement.

 

Reform

29. Are there any proposals for reform?

There are no material proposals for reform that would affect lending, whether secured or unsecured. Relatively recent amendments were made to the personal property security systems, and to the formal insolvency legislation. Further changes are not expected in the near future.

 

Contributor profiles

Alison R Manzer, Senior Partner

Cassels Brock & Blackwell LLP

T +1 416 869 5469
F + 1 416 350 6938
E amanzer@casselsbrock.com
W www.casselsbrock.com

Professional qualifications. Barrister and solicitor, Province of Ontario, Canada, 1979.

Areas of practice. Financial services; corporate lending; commercial lending; asset based financing; project finance; asset financing and leasing; business reorganisation; restructuring.

Non-professional qualifications. BSc Honours in Physics and Biochemistry; MBA; LLM Banking and Financial Services.

Professional associations/memberships. American Bar Association (Committee chair); Association of Commercial Finance Attorneys (First vice-president); Fellow of the American Bar Association; Member of the American College of Commercial Finance Lawyers.

Publications. Halsbury' s Laws of Canada, Banking and Finance, 2012, First edition; Law In International Finance; Canadian Partnership Law; Canada-U.S. Cross-Border Commercial Practice; numerous additional books and articles.


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