Thank you. We have Bill 7, the Personal Property Security Act. The appropriate Minister for the particular act is Mr. Kakfwi. Mr. Kakfwi, do you have any opening remarks?
Introductory Remarks
Bill 7: Personal Property Security Act
In the Legislative Assembly on March 2nd, 1994. See this topic in context.
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The Chair John Ningark
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Stephen Kakfwi Sahtu
Thank you, Mr. Chairman. As part of a program of major commercial law reforms, a draft Personal Property Security Act was released to the public and specifically circulated to the legal profession, financial institutions and consumer groups for their input. After considering responses which were received and similar legislation which, by then, had been introduced in Saskatchewan, an updated version of the bill was tabled last spring. The bill which has now been introduced includes a number of changes from the tabled bill.
In this respect, the favourable response of the Standing Committee on Legislation should be acknowledged. In fact, the input from the committee and its advisors was invaluable in the final preparation of the bill before introduction. Also, as suggested in the committee's first report on the tabled bill, a summary of the bill in Inuktitut has now been provided. For the benefit of those Members who were not in attendance at the initial meeting of the Standing Committee on Legislation or the meeting of the standing committee this past Saturday, the purpose of this bill is to replace existing laws with a comprehensive and modern set of rules for lenders and borrowers.
While this bill will not actively promote economic development, it will establish a proper foundation for commercial and consumer lending activities by removing obstacles, creating greater certainty and striking a more fair balance between purchasers, borrowers and lenders. Implementation of the bill will include replacing the present manual registration system with a computer-based system of recording. Right now, it takes approximately a half hour to manually search the name of borrowers to identify those which match the name being searched. A computer-based system will now take seconds to complete a search.
Computerization of the registration system will also allow for the possibility of decentralizing some services which are now available only in Yellowknife. In fact, one of the most significant benefits of passing the act at this time is that it will be much less costly to deal with when dividing the Northwest Territories than with the present manual system. In order for lenders and borrowers to be in the same position after the creation of Nunavut as before, it would now be necessary to duplicate the thousands of manual records in existence at the time. If this act is passed, the cost of duplicating the system will be minimal since it is relatively inexpensive to reproduce a computer data base. Most importantly, both territories would have modern legislation similar to the rest of Canada.
This initiative has prompted only positive feedback. Document registry staff frequently receive calls from either those who are surprised that we do not yet have a Personal Property Security Act in place or enquiries as to when it will be in force. It should be noted that the model act upon which this bill is based was adopted in British Columbia and Alberta in 1990 and has been introduced or passed in New Brunswick, Saskatchewan or Manitoba within the past year.
The proposed bill is lengthy and complex, but no more so than the present law in this area. The present law is set out in a number of very old acts and a great many complex judicial decisions. The system of registration is established by the Document Registry Act, and there is a duplication of registration requirements for certain companies in the Companies Act. Transactions must now be classified by type, for example, as chattel mortgages or conditional sales contracts, even if there is little or no practical difference between the two types of agreements. Rules for registration of priorities vary according to the type of transaction, usually for no apparent reason, and there is often uncertainty with respect to the rights of each lender on default when property is the subject of more than one type of transaction.
In short, the law has evolved in a most unsystematic fashion and has not accommodated changes in consumer and commercial lending practices. This act would replace the present laws and registries with one set of rules and a single registry. Specifically, the act will result in the following improvements:
1. It will no longer be necessary to classify each transaction, as the general term "security agreement" is applied to all transactions which create a security interest;
2. A single set of priority rules will govern all types of security interest, resulting in greater certainty for all parties involved. These rules also establish a fair balance between the interests of borrowers, lenders, secured lenders, unsecured lenders and purchasers;
3. The rights and remedies of secured lenders which apply in the case of default by a borrower are comprehensively set out in the act;
4. The duplication of registration requirements under the Companies Act will be eliminated;
5. As already noted, the computerized registration system will eliminate the time-consuming searches and the delay in receiving search results;
6. With respect to certain goods which can be described by serial number -- automobiles, for example -- it will be possible to conduct searches against a serial number. This is a service which is very frequently requested but which is not possible now because the registry is set up only for searches according to the borrower's name;
7. Since lenders can choose their own term of registration, it will be rare that they will be required to renew the registration;
8. The amount of information available on a search certificate will be much greater than in the present registration system, but the more detailed financial information contained in the agreement between the parties will no longer be available to those who do not have a legitimate interest in the information; and,
9. Delays in the lending process can be reduced by registering a notice of an interest before the security agreement is signed.
Those are the good points of this act. Thank you, Mr. Chairman.
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The Chair John Ningark
Thank you, Mr. Minister. In accordance with the practice of the committee of the whole, I believe we have a Member from the Standing Committee on Legislation to do the introductory remarks. Mr. Lewis.
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Brian Lewis Yellowknife Centre
Right. Thanks very much, Mr. Chairman. I believe OMC agreed that we should proceed with bills today, so, although I haven't discussed this with Mr. Gargan, I am sure he would want us to proceed with them.
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The Chair John Ningark
Proceed.
Standing Committee On Legislation Comments
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Brian Lewis Yellowknife Centre
Thank you, Mr. Chairman. The Standing Committee on Legislation met to review Bill 7, the Personal Property Security Act, on February 26, 1994. The committee thanks the Minister of Justice and his officials from the Department of Justice for presenting this bill and responding to the questions of the Members.
This bill establishes a new scheme of commercial law to regulate all transactions which create a security interest in personal property. Personal property includes all assets other than land. The proposed act regulates all levels of financing transactions of this kind, ranging from loans for the purchase of a snowmobile to large business transactions involving the financing of mining or oil drilling equipment.
The bill establishes a single registry system. People would be able to check the registry to determine whether other creditors have an interest in the property before entering into an agreement. This registry would be computerized, and telephone searches would be available from communities outside of Yellowknife.
The bill also sets out a single set of rules governing situations of default. In general, the rules provide more protection to debtors than is currently provided under existing law.
Personal property security legislation is in place in most Canadian jurisdictions. Legislative uniformity in this area should simplify securing financing for business debtors with assets outside the Northwest Territories and assist businesses in obtaining financing from other jurisdictions.
The standing committee agrees with the principles of this legislation and supports the bill.
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The Chair John Ningark
Thank you, Mr. Lewis, on behalf of the Standing Committee on Legislation. Now we have opening general comments. If the honourable Minister wishes to bring in the witnesses, with the concurrence of the House, he may do so. Are we agreed that Mr. Minister will bring in the witnesses? Can you hear me? Agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Thank you very much. The Sergeant-at-Arms will please escort the witnesses. Thank you. Mr. Minister, for the record, please introduce your witnesses to the committee of the whole.
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Stephen Kakfwi Sahtu
Thank you, Mr. Chairman. I have with me Diane Buckland, the legislative counsel from Justice, and Mr. Gary MacDougall who is the director of legal registries, also with the Department of Justice.
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The Chair John Ningark
Thank you, Mr. Minister. Moving along, the floor is open for general comments from the membership of the committee of the whole. Any general comments? Mr. Ballantyne.
General Comments
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Michael Ballantyne Yellowknife North
Just to make some very general comments. Over the past number of years, there has been a lot of work done by the Department of Justice in the whole area of corporation and business law. During the last 20 years, in many ways, our laws have really not served us very well and it has really been a disincentive to attracting business to the north. Also, I feel, in a lot of ways it has prevented us from being competitive with other jurisdictions. If we are to thrive in the 1990s, it is very important that our business laws are as good, if not better, than laws in other parts of the country to help facilitate business. So, I want to commend the Minister in making this an important priority in the department. I know there is some more legislation which will be coming in the future. With these two bills, the Partnership Act and the Personal Property Security Act, I think he has demonstrated that he intends to make the Northwest Territories very competitive from a business point of view. With that general comment, I support the direction in which the department is moving. Thank you.
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The Chair John Ningark
Thank you, Mr. Ballantyne. Mr. Koe.
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Fred Koe Inuvik
I just wanted to say a few comments on the bill itself. It is a very large, complicated bill. I, too, agree with my colleague from Yellowknife North. It is timely that we deal with many of our outdated acts. We talked about corporations, securities, registration and a great deal of reference to other corporate business and what businesses or corporations carry out, but I know we are not dealing with the Northwest Territories Corporation Act. Is that under review, too, to be changed sometime?
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The Chair John Ningark
Thank you. The honourable Minister.
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The Chair John Ningark
Thank you. General comments. Mr. Koe.
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Fred Koe Inuvik
Thank you, Mr. Chairman. What time frame are you looking at in the new Northwest Territories Corporations Act?
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The Chair John Ningark
Thank you. Mr. Minister.
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Stephen Kakfwi Sahtu
Mr. Chairman, we do, periodically, assess what we are able to complete in the time we have. The Member knows we are on the last leg of our political lifespan for this particular session. There are certain pieces of legislation that will take priority over others. It is my understanding that the drafting for new legislation in that area has started. It will probably take about a year before we have something that could be circulated for comment and consultation, so anything substantial probably won't happen. Final draft legislation won't be able to be put before Cabinet and then to SCOF, for instance, until early in the life of the next legislature. Thank you.
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The Chair John Ningark
Thank you. General comments. The honourable Member for Inuvik.
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Fred Koe Inuvik
This new bill is very complicated and lengthy. It is going to establish new systems for registration of transactions involving security interests. It is to replace the systems that are set out in the assignment of Book Debts Act; Bills of Sale Act; Conditional Sales Act; Corporation Securities Registration Act and Document Registry Act. If this bill is passed and comes into effect, what happens to the acts that I just mentioned? Do they have to be repealed somewhere, do they continue with the clauses in them or does this act replace those other acts?
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The Chair John Ningark
Thank you. The honourable Minister.
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Stephen Kakfwi Sahtu
Mr. Chairman, I think, in the last part of this legislative proposal it sets out that all of those pieces of legislation will be repealed. Thank you.
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The Chair John Ningark
Thank you. Mr. Koe.
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Fred Koe Inuvik
Thank you. Can the Minister, then, tell me in some plain and simple language why we should approve this act?
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The Chair John Ningark
Thank you. The honourable Minister.
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Stephen Kakfwi Sahtu
Mr. Chairman, I follow script on items of business like this because it is not really my forte, so to speak. The opening comments I gave is about as simple as I can get it on largely technical, commercial drafting legislative language. I usually defer to the professionals who sit with me
because, in my language, there is no clear way to say these things. It is very legal. It is not my language, so to speak, so I am not certain what else I can suggest to the Member. It is a language of a different profession from mine. Thank you.
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The Chair John Ningark
Thank you. Mr. Koe.
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Fred Koe Inuvik
Can the Minister ask one of his staff, then, to tell us? I know we have heard the script. The script was very complicated, too. That is why I asked the question, for people out there who ask why would we approve this bill. We need some terms that laymen can understand.
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The Chair John Ningark
Thank you. The honourable Minister, you can assign the response for one of your witnesses.
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Stephen Kakfwi Sahtu
Mr. Chairman, it has been pointed out and recognized by not only ourselves, but members of the public, who find difficulty with our broad range of what is considered to be outdated legislation. The fact that almost all other jurisdictions in Canada have adopted legislation that is similar to this, which is what we are proposing, I think reflects that. In simple language, I believe that making these types of services in government available by computerizing it is a large argument in its favour. The days when we write manually, by hand or typing into large ledgers, the type of information that we are obliged to keep, has to end. The year 1994 is a very good year to end it. Because the type of information that we are obliged to keep for lenders and borrowers is manual, it is not available to be accessed from Inuvik, Iqaluit, Rankin Inlet, Norman Wells or any of the communities. You largely have to ask somebody by phone or by letter to go and do searches for you in the courthouse where these documents are kept.
One of the points we make in our presentation is that we think we can decentralize this service by making it available through networking with the regional offices and just through accessing it on the government's computer system. Checking the status of an automobile or other equipment through serial numbers is, again, something that would greatly expedite business for many people. I think it will help people do business much faster by checking for all the borrowers and lenders who have interests in certain things, such as ski-doos, automobiles and trucks, by just tapping a serial number into a computer. Those are the simple ones. I guess there are more technical ones than those. As to what kicks out on a computer screen is another one.
As I understand it, right now it is all kept in one place for a manual system for all the details you want to know about certain items. A computer system, I think, will restrict access. It will contain all the information you want about certain items of business interest, but it would not allow everybody to access all the financial information. There is quick, easy access, but there is a way to restrict it, as well. That is the point I made in my opening comments.
I said we're setting up one act so it's comprehensive, one set of rules to govern all the different interests that require some element of security for the parties involved. It simplifies it, it makes it comprehensive and we catch up to the rest of Canada. Thank you.
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The Chair John Ningark
Thank you. If we really believe in Shakespeare, the bill wouldn't even be here. Mr. Zoe, general comments.
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Henry Zoe North Slave
Thank you, Mr. Chairman. I notice that the Minister indicated all the good points. One of the questions is, in terms of registering all this activity of businesses and individuals, is there going to be costs implemented through this bill to individuals who register? Is there a cost associated? The requirement is that people have to register all their debts and loans and it is going to be computerized. That's the intent of the bill.
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The Chair John Ningark
Thank you. Mr. Minister.
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The Chair John Ningark
Thank you. Mr. MacDougall.
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Macdougall
Thank you, Mr. Chairman. There are fees prescribed, at present, for registration for all the types of documents under the various acts that are referred to that will be repealed by this act. Certainly, under the new act, there will be fees required for the registration of those documents. The exact amount of each fee is certainly not something that has been determined as of yet. It is not anticipated that it will be substantially out of line with the current amounts. There may be increases because of the ongoing costs of running a computer system, but they wouldn't be out of proportion to the current fees.
It is the type of thing that the Minister noted, where when you're searching and it takes half an hour to do it manually, it doesn't take a lot to persuade you to pay a little bit more to obtain it immediately without putting in that half hour's effort. Thank you.
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The Chair John Ningark
Thank you. General comments. Mr. Zoe.
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Henry Zoe North Slave
I'll be supporting the bill because it is streamlining the current system by repealing all the other acts and so that it can be computerized. But another question I would like to ask is with regard to the confidentiality of registration. Can anyone have direct access to all the information that is registered here? Is that the intent? For businesses that register all their loans and assets. How would that work? Can anybody from the street go into our government office and ask, can I get a computer print of this individual or this company and find out about who they owe and so forth? Is there any restriction in that area?
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The Chair John Ningark
Thank you. Mr. Minister.
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Stephen Kakfwi Sahtu
Mr. Chairman, I have asked Mr. MacDougall if he would tell us how this is being accessed now, through the manual system, and how it will be accessed through the proposed computer system.
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The Chair John Ningark
Thank you. Mr. MacDougall.
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Macdougall
The existing system contains no limits on accessing the information. The information that is recorded
now is the entire agreement, at least at the time they entered into the agreement, between the parties. As a result, it sets out all the financial details, the amount that's intended to be borrowed, repayment schedules, all of the financial details as well as the goods that are collateral under the agreement. That information is available to anyone who comes to the office and requests photocopies of any of those documents.
Under the system this act would put in place, the information that is entered into the registry system is still fully accessible by all members of the public, but the only information that is entered in is the information really essential to begin to make a decision in terms of financing. That is essentially the name of the parties and a brief description of whatever the collateral may be for the particular loan. There isn't a provision to typically note how much is intended to be borrowed, merely that some amount is intended to be borrowed and the collateral which is the security for that loan.
It is only the key information that would be available directly through the computer system. It would be a more broad-based availability. It wouldn't be something that would be available necessarily only in Yellowknife, but it cuts it down to the essential information necessary to be known. Once the prospective lender has identified that the collateral they would intend to take as security is included on a particular statement, they would then have to go to the person they are proposing to lend the money to and have them obtain directly from the other party complete financial details. So, essentially, apart from law enforcement officials and a few narrow exceptions, it is typically just the borrower who is, under the act, entitled to request the complete details from the person they originally borrowed the money from of what may remain owing and what the terms of the agreement are.
It strikes a more proper balance between the information that is necessary to be able to make an informed decision when lending money and doesn't violate the privacy of the individual by revealing to anybody who is interested in all financial information.
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The Chair John Ningark
Thank you. General comments. The reason I said if we really believe in Shakespeare the bill wouldn't be necessary, is because Shakespeare said neither borrower nor a lender be. Okay? Shall we go clause by clause?
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Some Hon. Members
Agreed.
---Agreed
Clause By Clause
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The Chair John Ningark
Clause 1.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 2.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 3.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 4.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 5.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 6.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 7.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 8.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 9.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 9.1.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 10.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 11.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 12.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 13.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 14.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 15.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 16.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 17.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 18.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 19. Part three, clause 19. Agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 20.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 21.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 22.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 23.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 24.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 25.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 26.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 27.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 28.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 29.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 30.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 31.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 32.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 33.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 34.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
If I fall asleep, bear with me. Clause 34. Mr. Koe.
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Fred Koe Inuvik
Thank you. I would like some clarification on clause 34.11. What does it mean?
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The Chair John Ningark
Thank you. Mr. Minister.
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The Chair John Ningark
Go ahead, Mr. MacDougall.
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Macdougall
Thank you. It's probably easiest to understand this provision by drawing an analogy to builders' liens. People are familiar with the fact that the construction industry, when building a home, has a lien on the property for the work and the materials that they put into that particular building, in priority to other lenders and to perhaps the home owner. This is really the same sort of thing where it's giving a priority to those things which contributed to, effectively the growth or the improvement of the particular collateral. That's really the essence of this. So if somebody has lent money to someone to provide food for animals which contributes to their growth, then it gives them a higher priority than one who otherwise has a security interest in those animals.
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The Chair John Ningark
Thank you. Clause 34. Mr. Koe.
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Fred Koe Inuvik
Is there a definition of "perfected security"? I don't see it in the definitions. I'm just wondering what "perfected security" means.
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The Chair John Ningark
Clause 34. Mr. Minister.
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Stephen Kakfwi Sahtu
Mr. Chairman, I think we will have to go back to clause 19 to deal with "perfected security interests." Mr. MacDougall will talk about the three types.
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The Chair John Ningark
Thank you. Do we have the concurrence of the committee to go back to clause 19? Agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Mr. MacDougall.
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Macdougall
The concept of perfection is tied into quite a number of sections, beginning with 19, which begins by saying that it's perfected when it attaches, which is essentially when the agreement between the parties is in existence. Then, any of the other steps taken by the following sections are taken.
Simplistically, I can say that in the following sections there are three methods identified for perfecting when there is an agreement that exists. One of them is possession of the collateral. The other is registration. The third method is there are a number of instances in which there is temporary perfection provided which is essentially a grace period, typically 15 days, during which time it would be necessary to perfect by either possession or registration of the collateral. The concept is one that's interwoven through all of the priority sections, so it's difficult to summarize much more simply than that.
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The Chair John Ningark
Thank you. Mr. Koe, are you satisfied with the response?
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Fred Koe Inuvik
(Microphone turned off)
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The Chair John Ningark
Thank you. Now to go back to clause 34. Agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 35 of the act.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 36 of the act.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 37.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Qujannamiik. Clause 37.1.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 38.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 39.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 40 of the act.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 41.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 42.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Merci. Clause 43 of the act.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 44.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 45.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 46.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 47.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 48 of the act.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 49.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Qujannamiik. Clause 50.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Are we half way? Clause 51.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 52 of the act.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 53.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 54.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Part five of the act, Clause 51.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Pardon me. Clause 54. That was my mistake. I stand corrected. Clause 56.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 57.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Clause 58.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Mr. Koe.
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Fred Koe Inuvik
Thank you. On clause 58.9(d), under seizures where a sheriff makes a seizure, "in the case of property in the form of goods, affix to the goods a sticker in the prescribed form." I noticed that term "prescribed form" in other clauses here in this section. Where is "prescribed form" defined?
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The Chair John Ningark
Thank you. The honourable Member is referring to the bottom of page 72. Mr. Minister.
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Stephen Kakfwi Sahtu
When we were reading the numbered clauses, we didn't hear 55, so I just wanted to check and make sure you had read 55. If you did, we should make it certain.
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The Chair John Ningark
Mr. Minister, I said 51 and then I corrected myself. It was actually supposed to be 55 and said 51. I went back and I said 55. For the record, if I didn't, it is clause 55. Agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Mr. Minister.
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The Chair John Ningark
Mr. MacDougall.
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Macdougall
"Prescribed" as it is used throughout the act, refers to prescribed by regulations. In one of these later sections, there are regulation-making powers for many of the administrative details of the operation of the act, the establishment of forms, these and various other details of the operation. "Prescribed" here would be prescribed by regulation.
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The Chair John Ningark
Thank you. Clause 58. Mr. Koe.
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Fred Koe Inuvik
A slight clarification on the same clause, 9, 58-9, subsection 11 and 12, where it says, if a sheriff wants to secure a private dwelling, the sheriff has authority from the Supreme Court to break open a door and clause 12 says, "a person so doing will ensure that the building is properly secured." Am I reading that verbatim? Does that mean what it says, that a sheriff can break open a door of a private house and secure it somehow if they say they rescind or neglect to pay their mortgage and the bank wants to take their house?
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The Chair John Ningark
Thank you. Mr. Minister, does the current situation of the country allow this?
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Stephen Kakfwi Sahtu
Mr. Chairman, as I understand it, this part of the legislation only reflects what already exists in law for the sheriff to do in the Seizures Act. These are carried out usually under orders of a judge. We are not creating new powers here.
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The Chair John Ningark
Thank you. Mr. Koe.
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Fred Koe Inuvik
Just for clarification, it can only happen with a Supreme Court order.
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The Chair John Ningark
Thank you. Mr. Minister.
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Stephen Kakfwi Sahtu
I am advised that if it is for a dwelling house, you need a court order, but not for a place of business.
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The Chair John Ningark
Thank you. Clause 58. Agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Thank you. Clause 58.1. Agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Mr. Whitford.
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Tony Whitford Yellowknife South
Thank you, Mr. Chairman. I was curious about the definition of a "mobile home" under 58.1(1). It says that mobile home means, under subsection (a), "a vacation trailer." It goes on to list other things. I wonder why vacation trailers are considered to be mobile homes. It is stretching it a bit that this would be used as a permanent residence to, as it says here, provide accommodations, but that is only on a temporary basis. It would be stretching the imagination a bit to consider that to be a mobile home in the terms that one understands what a mobile home is. I just wonder why it was included in that and not something more in line with a recreational vehicle or some term like that. Thank you.
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The Chair John Ningark
Thank you. I am sure there is a legal definition for this. Mr. Minister.
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Buckland
Thank you, Mr. Chairman. This provision captures vacation trailer to make sure that it is dealt with more carefully than another vehicle. For instance, because it is possible that someone may be living in it and using it as a temporary residence or even as a full-time residence. Clause 58.1 allows you to seize mobile homes, but under stricter requirements than what are required to seize a car, for instance. It is just to safeguard anything where someone might be living in it. Thank you, Mr. Chairman.
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The Chair John Ningark
Thank you. Section 58.1. Mr. Whitford.
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Tony Whitford Yellowknife South
Thank you, Mr. Chairman. Yes, by the way I understand it. It says they are either on wheels or being towed or carried. That means a camper as well. I hardly think that would come under the same provisions as a mobile home where you have to have certain protections for occupants more so than something that is fairly tangible like a truck or snowmobile or four wheeler. This, I believe, from what I read here, would include the slide-on camper on the back of a truck. It doesn't designate as to what size either, because they come in a variety of sizes, very small ones that just occupy the back of a truck only suitable for hunting or short vacation to the very large ones. Nonetheless, they are still slide-on recreational purposes primarily.
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The Chair John Ningark
Thank you. Mr. Minister.
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The Chair John Ningark
Thank you. Ms. Buckland, go ahead.
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Buckland
Thank you, Mr. Chairman. In reading subsection 2, I think it makes it somewhat clearer. I apologize for not making it clearer before. Subsection 2 says that where a mobile home is seized, the special provisions prevail, if the mobile home is occupied by the debtor or any other person and fails to give it up willingly. So, if you had a vacation trailer and if it was unoccupied, you could seize it as you would a car. If you had a vacation trailer or anything on wheels, as you describe, Mr. Whitford, and if someone was occupying it, then you would have to use the special provisions. Thank you, Mr. Chairman.
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The Chair John Ningark
Clause 58.1 is agreed?
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Qujannamiik. Clause 59.
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Some Hon. Members
Agreed.
---Agreed
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The Chair John Ningark
Mr. Arvaluk.
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James Arvaluk Aivilik
Thank you, Mr. Chairman. On Clause 59(2)(b), "the satisfaction of the obligations secured by the security interest of the secured party disposing of the collateral," -- I wonder what that means -- "...and any surplus shall be dealt with in accordance with section 60." What I am understanding here is that the collateral owner or debtor may share some of the surplus. However, I do not see anywhere that the debtor could be or should be protected so that the collateral is not resold under value, except...I don't know. We seize your mobile home -- I will use Tony's scenario here -- that you bought for $10,000. You owe $4,000, so we seize your mobile home. However, the best offer we could get was $400, so you see, therefore, you still owe us $3,600. There is nothing for the debtor that he gets a fair shake out of that collateral, unless I am misreading that completely. The simplest part is there but the other side is not there.
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The Chair John Ningark
Thank you. On the liability, Mr. Minister. You can assign the response to one of your witnesses at your discretion. Go ahead.
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Stephen Kakfwi Sahtu
Mr. Chairman, I understand that, for instance, when goods are seized, there is a process for disposal, and it is not uncommon -- though I can't say that it is common practice -- to sell things for what may be considered less than their value, their book value. But, I think everybody knows it when goods will probably be seized. The people who have originally purchased them have some recourse to try to fend off the people that seek to seize it. The best way is to sell it in advance, get a good dollar for it and that way you are in control. If not, then another process kicks in, but the people who have the lien or the security interest in the item also have an interest in getting a good dollar return. It is unfortunate when items have to be seized because all parties usually suffer as a result.
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The Chair John Ningark
Thank you. The honourable Member for Aivilik, Mr. Arvaluk.
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James Arvaluk Aivilik
Mr. Chairman, I will try to be very clear here. What I am getting at here is that if the collateral is seized by the secured party and it may be disposed of through auction, that does not guarantee that it could be sold at book value. I guess my question is, is there any way that it can be properly, independently assessed, other than by the secured party, before it is disposed of for the purpose of liquidating it to pay for the original debt?
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The Chair John Ningark
Thank you. Perhaps, Mr. Minister, you or one of your witnesses could respond to Mr. Arvaluk's question. Mr. Minister. The clock is ticking here, Mr. Minister.
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The Chair John Ningark
Mr. MacDougall.
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Macdougall
Thank you, Mr. Chairman. Section 65, subsection 3, provides a positive obligation on any of the parties to exercise any of the rights or duties or obligations.
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The Chair John Ningark
Mr. MacDougall, we haven't gone to that clause yet. Are you referring to clause or section? Go ahead. I am told that you can answer. Go ahead. Continue.
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Macdougall
The section creates a duty to act in a commercially reasonable manner. The enforcement of whether that has been done is dealt with in other sections where there is recourse to the courts if that is not done, but the obligation to act commercially reasonably and to not sell something under value is primarily from that particular provision and then the enforcement in a number of the other provisions.
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The Chair John Ningark
Thank you. Mr. Arvaluk.
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James Arvaluk Aivilik
What you are saying is that if a person has a $100,000 boat, the boat has been seized, the collateral was a $50,000 cottage, and apparently, over a ten year period when the boat was not yet paid for, the soil has not been favourable or has rotted the foundations, the bank cannot turn around and say your cottage is no longer a $50,000 cottage, it is only a $10,000 cottage, because we have neglected to inspect the soil and it is rotted. Is that what subsection 65 will tell me?
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The Chair John Ningark
Thank you. Mr. Minister.
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The Chair John Ningark
Mr. MacDougall.
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Macdougall
The commercially reasonable standard will be something that will apply to essentially all of the actions of the parties. One of those will be to maintain the collateral and to not devalue it during the course of still using the collateral when you are the borrower. So this section has a very broad application that is simply saying that you must be reasonable. You can't do something that wouldn't meet a standard that other people would consider reasonable in the circumstances.
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The Chair John Ningark
Thank you. Clause 59. Mr. Arvaluk.
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James Arvaluk Aivilik
In this case, will the borrower be a party to assessing what is a reasonable value for the collateral once the collateral has been seized?
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The Chair John Ningark
Thank you. Minister of Justice, Mr. Kakfwi.
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The Chair John Ningark
I have Ms. Buckland and also Mr. Pollard. Mr. Pollard, did you have your hand up earlier? I guess he was trying to signal one of the pages. Ms. Buckland.
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Buckland
Thank you, Mr. Chairman. No, the debtor or the borrower would not have a say in assessing the value of the goods. However, the debtor is given notice of the sale before it happens and, in most circumstances, is given the chance to redeem the goods. In other words, in some circumstances, he is allowed to make any back payments and reinstate the security agreement to get it going again. Then he gets possession of the collateral back or he can pay out the whole price himself and get the collateral back. I hope that assists. Thank you, Mr. Chairman.
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The Chair John Ningark
Member for Aivilik.
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James Arvaluk Aivilik
I have never seen anything like this in the Northwest Territories but I have seen it in other jurisdictions. In Ottawa, a person bought a car for $3,000 or $4,000. He couldn't pay for it for a couple of months and it was taken away. I was president of ITC at the time and he asked me if I could help him. He said he agreed to give his car back but they said he still owed them money because they could only sell it for $800. Would this type of thing happen, when the secured party did not try hard enough and as a result the debtor still continues to owe after the collateral has been sold?
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The Chair John Ningark
Thank you. Minister of Justice. Do you people want to take a break? Just kidding. Ms. Buckland.
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Buckland
Thank you, Mr. Chairman. In a situation like this when the collateral is sold, any difference between the amount owing and the value received for the collateral will still be owing by the debtor. If, however, the debtor felt that the price that was obtained was unfair, he could go to court and the court may very well agree with him and reduce the amount owing. These are always really difficult circumstances and there is always going to be someone who loses, unfortunately. But, the court is always there if you feel you've been mistreated. Thank you, Mr. Chairman.
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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Bill 7: Personal Property Security Act
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Some Hon. Members
Agreed.
---Agreed
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The Chair Tony Whitford
Bill 7 is now ready for third reading. Mr. Minister, on behalf of the committee, I would like to thank you and your witnesses for appearing before us to assist us with this bill. Mahsi.