Changes to Personal Property Security Act - Report 2007

CIVIL LAW SECTION

REPORT ON THE ULCC PROJECT FOR CHANGES TO PERSONAL PROPERTY SECURITY ACTS

Professor Ronald C.C. Cuming, Q.C., College of Law, University of Saskatchewan, Saskatoon SK

Readers are cautioned that the ideas or conclusions set forth in this paper, including any proposed statutory language and any comments or recommendations, may not have not been adopted by the Uniform Law Conference of Canada. They may not necessarily reflect the views of the Conference and its Delegates. Please consult the Resolutions on this topic as adopted by the Conference at the Annual meeting.

Charlottetown, Prince Edward Island, Sept., 2007

I. BACKGROUND

[1] The Uniform Law Conference promulgated a Uniform Personal Property Security Act in the early 1980s. While features of the Uniform Act were later included in the provincial Acts, it never served as a model. The principal reason for this is that events overtook it. A period of rapid development of Canadian secured financing law occurred in the 1990s. The new Acts passed in the western provinces during this time contained innovative features not included in the ULC Act and were more accommodating to the developments in computer technology that were occurring during that period. The Ontario Legislature replaced the original Ontario PPSA with a new Act in 1989. This Act incorporated a few of the features contained in the Uniform Act; however, in many matters of detail, it departed from that model.

[2] In 1989 government representatives and academic experts in the five western Canadian jurisdictions formed the Western Canada Personal Property Security Act Committee. The goal of the Committee was to prepare a model PPSA for implementation in western Canadian jurisdictions and the Committee eventually approved a model Western Canada Personal Property Security Act (later to be called the CCPPSL Model). All of the current provincial and territorial Acts except those of Ontario, Yukon and Quebec were patterned on this Model. In June 1991 the Western Canada Personal Property Security Acts Committee was dissolved and replaced by the Canadian Conference on Personal Property Security Law (CCPPSL). This is a national organization with official representatives from all provinces and territories. The initial goal of the CCPPSL was two fold: (1) to encourage the maintenance of uniformity of personal property security legislation throughout Canada; and (2) to exchange information on personal property registry design and operation. In recent years the latter goal has taken on primary significance.

[3] In summary, it is fair to conclude that the CCPPSL has been very successful in inducing substantially uniform secured transactions law in Canada. However, it failed to bring Ontario into the fold. While Quebec representatives actively participate in the activities of the CCPPSL, it is understandable that the structure of the CCPPSL Model could not be replicated in the secured transactions chapter of the Civil Code. However, there is considerable conceptual similarity between the two systems.

[4] However, the CCPPPSL cannot be viewed as the principal actor in pursuing the goal of uniformity of secured transactions legislation in Canada. Most of the provincial and territorial representatives who attend its meetings are registrars or registry staff. Unlike some former representatives, they are not directly involved in legislative changes in their jurisdictions except to the extent those changes accommodate new registry features.

[5] This being the case, the Uniform Law Conference of Canada continues to have an important role in future development of Canadian secured transactions law.

[6] Currently, the Personal Property Security Acts of all jurisdictions other than Ontario, Yukon and Quebec are 99% uniform. While some differences have developed as a result of disparate judicial interpretations of the legislation, uniformity has been a very important feature of this area of the law in Western and Atlantic Canada. Recent amendments to the substantive provisions of the Ontario Act have brought it closer to the CCPPSL Model is a few important respects.

[7] This being the case, any efforts to improve the existing CCPPSL Model must be undertaken with care so as not to threaten this uniformity. A uniform secured financing law, albeit not perfect in every respect, is more important than having a patchwork of acts, some of which might have new features not found in the Model.

Next Annual Meeting

2017 Conference

Hotel Saskatchewan

Regina, SK

August 13 - 17, 2017
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