More and more UCC filers are engaging in transactions that may require the perfection of a security interest in Canada. While Canada does provide a “notice filing” system similar to the U.S., the preparation and “filing” of financing statements differs from the U.S. in some significant ways. This article focuses on general registration requirements in Canada. Note that each province may impose additional unique registration requirements. Also note that all Canadian provinces have adopted the Personal Property Security Act (PPSA) except for Quebec. Quebec secured transactions are governed by the Civil Code of Quebec. Therefore, the information discussed in this article does not apply to Quebec secured transactions registrations.
Differences between the Current U.S. Article 9 Model Act and the Canadian PPSA
In developing the PPSA, Canada referenced the 1967 U.S. Article 9 model act. This is the foundation for many of the similarities between the two countries’ notice filing systems. Although there are many common characteristics between the two systems, Article 9 of the UCC has been revised dramatically since 1967, with a major change occurring on July 1, 2001 and then another update when the 2010 Article 9 amendments took effect in most states on July 1, 2013. Over the years, the changes to the U.S. model act and state laws have created confusion when preparing and filing (registering) secured transactions in Canada by U.S. filers.
The PPSA is provincial, which is similar to the U.S. because UCC Article 9 is a state law. Each Canadian province adopts a modified version of the PPSA similar to each state adopting its own version of UCC Article 9. Also, in the United States, UCCs are filed; but in Canadian provinces, financing statements are registered. Finally, Canadian registrations are generally made where the collateral is located and may require more than one registration if collateral is located in more than one province. In the U.S., UCC filings are filed in the jurisdiction where the registered organization was formed for non-fixture collateral.
In Canada, generally, the filing office where the financing statement is registered is based on the collateral type and location. If the collateral is intangible, then the PPSA registration is made in the province where the chief executive office is located for business entity debtors or in the province of the primary residence for individual debtors. If the collateral is tangible goods, then the location of the collateral will determine the province(s) where the financing statement should be registered.
General Registration Requirements
There are many common characteristics between preparing a UCC filing and a PPSA registration such as debtor name, debtor address, secured party name and secured party address. In addition, the following requirements are unique to PPSA registrations:
Unlike the U.S., where a financing statement is generally effective for five years from the date of the initial filing, with a few exceptions, PPSA registrations vary in duration. The secured party registering a financing statement decides on the duration of the PPSA registration based on the terms agreed upon with the debtor. The filer specifies the number of years a PPSA registration is effective. The lien period may be as short as one year or as long as perpetuity.
Unlike in the U.S., where liens on motor vehicles are subject to title laws and made through the Department of Motor Vehicles, in Canada, a security interest in a various motor vehicle types may be made with a secured transaction registration. For these types of registrations, the PPSA requires the year, make, model, serial number, Vehicle Identification Number and vehicle type to be included.
Registrations may include the English and/or French versions of the party names. Canada maintains a French and English tradition for company names so it is beneficial to include the name of the debtor in both languages on registrations. This will ensure that a searcher who only searches the name in one language will find the registration. Some provinces require that the registration have both the English and French versions of the party names while others make this optional on the registration.
Financing Statement Renewals (Continuations)
Unlike in the U.S., there is no specified window of time for which a registration’s life can be renewed/extended as long as the financing statement renewal is made before the initial registration expires. The secured party may choose to renew (continue) an initial registration for any time period in whole years.
Gathering the Correct Information for Canadian PPSA Registrations
Before preparing an initial registration or a change registration, you should confirm you have all the information you need to complete the registration for a timely and accurate registration:
- English and French versions of the entity name
- Duration of agreement between the parties
- Collateral description
- Location(s) of tangible collateral and corresponding provinces
- Location of entity debtor’s chief executive office or of individual debtor’s primary residence and corresponding province when intangible collateral is involved
- Motor vehicle information (if applicable)
Change Registration (Amendments)
- Reference file number assigned to initial registration
- Party names
- For renewals, the renewal period in years. Additional information may be necessary for other types of changes
The many similarities between secured transaction filings/registrations in the U.S. and Canada make Canada’s preparation and registration process familiar to U.S. filers. There are, however, some important differences that should not be overlooked. It is important to carefully review the requirements specific to each province involved, in order to ensure the proper perfection of your security interests in Canada.
This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.