The Personal Property Security Act ("PPSA") is the name given to each of the statutes passed by all common law provinces, as well as the territories, of Canada that regulate the creation and registration of security interests in all personal property within their respective jurisdictions.
It is similar in structure to Article 9 of the Uniform Commercial Code in the United States, but there are important differences.[1][2][3][4][5]
History
editThe British Sale of Goods Act 1893 was followed closely in Canada in the first half of the twentieth century. In the 1970s it was noticed in Ontario that the law of contract had departed from the 1893 Act. To remedy this shortcoming, the Law Reform Commission proposed a new regime, which was duly enacted by the provincial government as the Uniform Sale of Goods Act.[6]
PPSA regime
editThe legislation that implemented the PPSA scheme was first introduced in Ontario, followed by the remaining provinces and territories (which followed a newer uniform model with notable differences). The Atlantic provinces, together with the Northwest Territories and Nunavut, have fully computerized registries, while the others have varying degrees of electronic and paper registration. The following is a brief outline of how the regime generally works.
Personal property subject to the Act
editThe scope of the Act is extremely broad, as it is concerned with every transaction which in substance creates a security interest, without regard to its form and without regard to the person who has title to the collateral. There are small differences between the provinces as to how far this extends, but the concept is basically the same. That said, however, there are some items that are specifically excluded:
- liens that arise from rule of law (i.e., liens that are automatically generated by legislation or precedent), unless respective legislation specifies otherwise
- interests in annuities and insurance policies
- interests in land (other than interests arising under a license), including leases
- assignments for the general benefit of creditors
- interests in any compensation for labour or personal services
Personal property is classified into the following categories:
- goods (further classified into consumer goods, equipment and inventory)
- instruments
- documents of title
- chattel paper (including leases and conditional sales contracts)
- securities
- money
- intangibles (licenses and any other matter not included above)
Creation of security interests
editSecurity interests are created through attachment, which can be followed on by perfection.
Attachment occurs when
- value is given,
- the debtor has rights in the collateral, and
- it is enforceable against third parties.
Perfection can occur by possession of the collateral, or by registration. In certain circumstances, possession can be considered to be the superior form of perfection.
Purchase money security interests (PMSIs)
editA PMSI is a special type of security interest taken in collateral by a party who gives value for the purpose of enabling the debtor to acquire rights in the collateral. Some examples are:
| Type of interest | Collateral |
|---|---|
| Loan to purchase goods | The goods |
| Sale of goods | The goods |
| Leases (terms > 1 year) | The leased asset |
| Consignment of goods | The goods |
Creation of "super-priorities"
editIn specified circumstances, PPSA registrants can obtain "super-priority" status over other secured parties, when the following steps are taken:
| Collateral | Steps to take |
|---|---|
| Inventory | Perfection at the time of possession, provided that notice has been given to other secured parties before registration (and possession by the debtor) |
| Intangibles | Perfection no later than the specified number of days after attachment |
| Other than the above | Perfection no later than the specified number of days after possession by the debtor |
The PPSA and land
editPPSA security interests can have priority over real property security interests against fixtures, when the secured party registers notice against the land at the local registry or land titles office. Where attachment occurs before the affixation to the land, the interest will have priority, However, where attachment occurs after affixation, the interest is subordinate unless where the debtor otherwise consents.
Other intersections can also occur with interests in land. For example, a lender that grants a mortgage over a rental property will also register a PPSA security interest against the rents being generated, in order to attorn the rents in the event the mortgage goes into default.
Priorities of security interests
editIn the absence of any other special priority rules, the general order of priority is as follows:
| Event | Priority given |
|---|---|
| Competing interests are perfected by registration | First interest to register |
| Competing interests are perfected other than by registration | First interest to perfect |
| One interest is perfected by registration, and the other interest other than by registration | Registered interest takes priority if registered and perfected before the other is perfected. Interest perfected other than by registration takes priority if it is perfected prior to the registration of the other interest. |
| Competing interests are both unperfected | First interest to attach |
| One interest is perfected, and the other is unperfected | Perfected interest |
Regime under Québec legislation
editFor moveable property in Québec, secured creditors create their security interests by way of hypothec through the Registre des droits personnels et réels mobiliers (RDPRM).[7][8]
Security interests created under Federal legislation
editFederal legislation has also created certain security interests that may take precedence over provincial legislation.[9] They notably include:
- Bank Act security for loans granted by banks
- interests in patents, copyrights and trademarks
- interests in railway and rolling stock
- federal property
- matters relating to Indians and Indian lands
- deemed trusts under taxation laws
- priorities of claims under bankruptcy and insolvency laws
Conflicts between provincial PPSAs and federal legislation
editS. 89(1) of the Indian Act governs the application of security interests on reserves:
89. (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.[10]
Recent jurisprudence[11] has tended to restrict how this provision should be applied.[12]
There can also be complex interplay with security interests under admiralty law.[13]
Resources by province
edit| Province | PPSA Citation | Provincial registry or agent |
|---|---|---|
 British Columbia
|
RSBC 1996, c. 359 | BC Registry Services |
 Alberta
|
RSA 2000, c. P‑7 | Service Alberta Registries Online (registration through agents only) |
 Saskatchewan
|
SS 1993, c. P-6.2 | Information Services Corporation |
 Manitoba
|
CCSM c. P35 | The Property Registry of Manitoba |
 Ontario
|
RSO 1990, c. P.10 | Service Ontario |
 New Brunswick
|
SNB 1993, c. P-7.1 | ACOL (electronic service only) |
 Nova Scotia
|
SNS 1995-96, c. 13 | ACOL (electronic service only) |
 Prince Edward Island
|
SPEI 1997, c.33, also referred to as c. P-3.1 | ACOL (electronic service only) |
 Newfoundland and Labrador
|
SNL 1998, c. P-7.1 | ACOL (electronic service only) |
 Yukon
|
RSY 2002, c. 169 | ACOL (electronic service only) as of June 27, 2016. |
 Northwest Territories
|
SNWT 1998, c.8 | ACOL (electronic service only) |
 Nunavut
|
As NWT | ACOL (electronic service only) |
Notable cases
editDocuments
editReferences
edit- ^ Daryl E. Clark (2003). "Revised Article 9 and the PPSA - A comparison of the American and Canadian secured property legal regimes". The Secured Lender (as reprinted at the CBS Interactive Business Network Resource Library). Archived from the original on 2009-06-20. Retrieved 2011-09-29.
- ^ Bruce MacDougall, Fixtures and the PPSA: Of the Wooden Horse of Troy, Creditors in the Weeds and Statutory Ambush, 1993 72-4 Canadian Bar Review 496, 1993 CanLIIDocs 149, <https://canlii.ca/t/sklq>, retrieved on 2021-01-30
- ^ John J Chapman, Mistake, Sharp Practice, Equity and the PPSA, 1999 78-1&2 Canadian Bar Review 71, 1999 CanLIIDocs 91, <https://canlii.ca/t/2dgq>, retrieved on 2021-01-30
- ^ Alberta Law Reform Institute, Personal Property Security Law, Alberta Law Reform Institute, 2020 CanLIIDocs 3241, <https://canlii.ca/t/t038>, retrieved on 2021-01-30
- ^ Michael G Bridge et al, Formalism, Functionalism, and Understanding the Law of Secured Transactions, 1999 44-2 McGill Law Journal 567, 1999 CanLIIDocs 45, <https://canlii.ca/t/2bd6>, retrieved on 2021-01-30
- ^ Alberta Law Reform Institute, The Uniform Sale of Goods Act, Alberta Law Reform Institute, 1982 CanLIIDocs 1, <https://canlii.ca/t/2dl3>, retrieved on 2021-01-30
- ^ Kiriakoula Hatzikiriako (Summer 2010). "An attempt to "demystify" Québec secured transactions law (Part I)" (PDF). ABA Commercial Law Newsletter as reprinted by McMillan LLP. Retrieved 2011-09-13.
- ^ "Registre des droits personnels et réels mobiliers". Archived from the original on 2011-10-29. Retrieved 2011-09-13.
- ^ "Federal Security Interests: Contract #99-08-2" (PDF). Fraser Milner Casgrain under contract to the Law Commission of Canada. June 2000. Retrieved 2011-09-14.
- ^ "Indian Act (R.S.C., 1985, c. I-5), s. 89". 15 August 2019.
- ^ McDiarmid Lumber Ltd. v. God's Lake First Nation, 2006 SCC 58, [2006] 2 SCR 846 (15 December 2006)
- ^ Anita G. Wandzura (2007). "The Enforcement of Security Interests Against the Personal Property of First Nations Persons on a Reserve". Ottawa Law Review. 39 (1). University of Ottawa. Archived from the original on 2013-12-02.
- ^ Christopher J. Giaschi. "Summary of Canadian Law of Priorities". Archived from the original on 2002-06-16. Retrieved 2011-09-30.