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Good News for Lenders to Leasing Companies in Canada
U.S. lessors doing business in Canada should be aware of recent developments in Canadian case law that establish the priorities between a lessor and a funding source in a leasing transaction. The recent British Columbia Court of Appeal case of Perimeter Transportation Ltd. (Re) 2010 BCCA 509 (the “Perimeter case”), provides some relief to companies that finance lessors when the lessor fails to properly register financing statements against its lessees. It also reinforces the importance of a lessor properly registering financing statements against its lessees.
A typical financing structure used in Canada to fund the leasing industry is for third-party funders, either through a securitization or a traditional loan, to lend against a pool of leases which the borrower has entered into with its clients (lessees). A typical covenant in the financing contract is that the lease is supposed to be registered under the Personal Property Security Act (“PPSA”) to protect against the lessee's insolvency. The issue has always been unclear as to what if the lessor failed to register. Did the financing source lose its security? The Perimeter case now provides clarity and, to the funding source, a welcome relief, but also serves as a wake-up call to lessors.
Factual History
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