Security over Collateral CANADA BRITISH COLUMBIA Farris, Vaughan, Wills & Murphy LLP CONTACT INFORMATION Gordon A. Love Farris, Vaughan, Wills & Murphy LLP 2500 700 West Georgia Street Vancouver, British Columbia V7Y 1B3 604-661-9317 glove@farris.com www.farris.com 1. Can assets be charged, liened and/or encumbered in your jurisdiction? Please insert any exemptions, if any. Generally, both personal and real property assets can be charged, liened and encumbered in British Columbia. 2. In your jurisdiction, under what circumstances may security arrangements be subjected to choice of law and/or choice of forum clauses (does it matter, whether the security itself is located abroad and/or governed by foreign law [e.g. a pledged claim])? What is the market practice in your jurisdiction? Is there a treaty on this in your jurisdiction, whether bilateral or multi-lateral? Are there any requirements for enforcement in your jurisdiction? Canada has both a Federal Government and Provincial or Territorial Government political system. There are Federal statutes (for example Bank Act (Canada)) and Provincial statutes (for example Personal Property Security Act (British Columbia)) which deal with security over certain types of collateral. Generally speaking, Federal statutes will have paramount over Provincial statutes when both deal with the same types of collateral. Accordingly, it is necessary to examine the applicable Federal and British Columbia statutes when taking security. Notwithstanding the choice of law provisions in a security agreement, the law applicable to certain types of collateral charged by a security agreement may be determined by where the collateral is physically located or the jurisdiction of the head office of the debtor.
Generally speaking, for transactions originating in British Columbia with a debtor located in British Columbia, the practice is to use British Columbia law as the choice of law. Where a debtor carries on business in other jurisdictions, advice from lawyers in those jurisdictions will be sought. The primary requirement for enforcement in British Columbia is compliance with the applicable Federal and Provincial statutes. 3. In your jurisdiction, are floating charges or security over the overall assets of an entity accepted, and if so in what terms? Yes. 4. In relation to the following types of assets, please explain in your jurisdiction the types of security that can be created or granted, if the security requires any type of registration or perfection requirements, an estimate of cost (including applicable taxes and any other duties/ costs) and timing for granting such security, and any special considerations regarding the asset type: (a) Aircraft; personal property security interest. Perfection by registration or (b) Bank Accounts; personal property security interest. Perfection by registration; (c) Animals, Crops (in ground and severed) and Timber; if held by a debtor as inventory, security under Bank Act (Canada) may be taken. Registration with Bank of Canada is required. This security will be paramount over security taken under Provincial personal property security legislation. A security interest in this type of collateral may also be taken with perfection by registration. (d) Equipment; personal property security interest. Perfection by registration or (e) Intellectual Property; personal property security interest. Perfection by registration; (f) Inventory; please see item 4(c) above; (g) Leases; interests in land are excluded from the scope of British Columbia personal property security legislation. It is possible to take and register an assignment of the rental income from leases under the Land Title Act (British Columbia); (h) Mineral Interests, including Hydrocarbons; if the mineral interest is registered under the British Columbia Land Title system, a mortgage of the interest may be taken and registered under the Land Title Act (British Columbia); Registration may also be effected under British Columbia mineral tenure legislation;
(i) Promissory Notes and Chattel Paper; personal property security interest. Perfection by registration; (j) Real Estate; Real property mortgage. If title of the real property is registered under the Land Title Act (British Columbia) then registration is required to protect priority. There is also a Federal Indian Lands Registry for real property subject to the Indian Act (Canada); (k) Receivables (credit rights under contracts or invoices); generally speaking may be subject to personal property security interest. Perfection by registration; (l) Rights under Contracts (excluding Receivables); generally speaking may be subject to personal property security interest. Perfection by registration; (m)shares (in book-entry and certificate form and other securities); personal property security interest. Perfection by registration or, if securities are in certificated form, perfection may also be attained by physical possession by secured party; (n) Vessels; will depend upon the type of vessel. For certain types of vessels (those registered under Federal legislation), a Ships Mortgage may be taken. For other types, a personal property security interest may be taken. Registration is required in both cases; (o) Vehicles; personal property security interest. Perfection by registration or (p) Business as an ongoing concern; usually part of the charge contained in a general security agreement. If business includes real property, a real property mortgage will also be required. Generally speaking, the debtor must have an interest in the collateral at the time the security over that collateral is taken. The cost of registration will depend upon where the registration takes place but generally speaking, costs are not prohibitive. Under British Columbia personal property security legislation, the cost of registration depends upon the length of registration chosen. British Columbia does not have stamp duties or ad valorem fees. 5. Please explain briefly for each type of assets the procedure for enforcement (judicial and extra-judicial). Is it possible to enforce security governed by another jurisdiction? If yes, what is the procedure? Generally speaking, when enforcing against personal property, the applicable statute will have a procedure for enforcement which must be followed. As well, most security agreements will also contain enforcement provisions. In many cases, no judicial process will be required, subject to compliance with the applicable statute and the general laws of equity applicable to debtors.
To enforce against real property in British Columbia, a judicial foreclosure process must be followed. 6. Can a trustee or security agent be used in your jurisdiction, or must security be granted in favour of all lenders? A trustee or security agent acting on behalf of lenders, may be used in British Columbia. Security may be registered in the name of the trustee or the security agent. 7. In bankruptcy or insolvency scenarios, what are the suspect periods, is clawback possible, and what other types of rights (tax debts, employees, etc.) have preference over security granted? In Canada, both federal legislation (for example Bankruptcy and Insolvency Act (Canada) and provincial legislation (for example Fraudulent Conveyance Act (British Columbia) will impact on bankruptcy and insolvency. The statutes may void certain transactions or claw-back assets if the transaction takes place within certain time frames or under certain circumstances. Claims for some Federal taxes as well as other Federal and Provincial statutory liens (for example, employee benefits) may take priority over the claims of a secured creditor. 8. In your jurisdiction, can borrowers or guarantors subordinate their claims and if so in what terms? Yes. 9. What are the consequences of a transfer, assignment or novation of an underlying credit in your jurisdiction (is new security necessary, is the security automatically transferred, etc.) In British Columbia, when one creditor assigns or transfers indebtedness and security to a third party, the general practice is to enter into a formal assignment or transfer agreement, acknowledged by the debtor (and guarantors if applicable). Registration to reflect the assignment and preserve the existing security is also undertaken. 10. Can you have on top of a security in your jurisdiction, another layer consisting of an assignment of the collateral concerned conditional upon default by the debtor? The British Columbia personal property security legislation will treat this type of security the same as any other security interest and would bring this type of security under the same regime. 11. Are step-in rights lawful in your jurisdiction or does any action to take control require the creditors to go through a court process? I am not sure what you mean by step-in-rights. However, in British Columbia, one remedy available to a secured party upon a default by a debtor is the appointment of a
receiver or receiver-manager. It is the practice in British Columbia to include this as one of the remedies in a security agreement. The receiver or receiver-manager may be appointed by the secured party in writing to gather up the particular assets secured or, if all of the assets have been secured, to actually step in and run the business until such time as the assets or the business have been sold. In this case, no judicial appointment is necessary. It is also possible to make application to the British Columbia courts for the appointment of a receiver or receiver-manager. As well, subject to compliance with the applicable statute, a creditor may take the collateral in full satisfaction of the debt owing. Whether or not a judicial process is required will depend in part on the types of collateral. For personal property, the debtor and the creditor may agree to a voluntary foreclosure which may not require any judicial process. A voluntary foreclosure would be subject to the rights of any third party having an interest in the collateral being foreclosed. With real property, a creditor may take the real property in full satisfaction of the indebtedness but the judicial process governing foreclosures must be followed to protect the debtor and any third party with an interest in the real property.