27 Nov 2015

Ontario Personal Property Security Registration & Search

by Holly Crosgrey | posted in: Due Diligence, Ontario, Ontario Personal Property Security Act, Personal Property Security Registration | 0

The Ontario Personal Property Security Registration (PPSR) System is a notice filing system that records and provides information concerning consumer and business loans where goods and other personal property are used as collateral to secure loans. The PPSR System is a provincial system and each province and territory would have its own PPSR System.

For example, a person (“Borrower”) buys a large screen TV and borrows money from a loan company (the “Lender”) to pay for the TV. The Borrower and the Lender enter into an agreement giving the Lender the rights to the TV until such time as the Borrower has paid the money back to the Lender. The Lender would register a Personal Property Security Registration against the Borrower to secure its loan to the Borrower.

Who Should Register in the Ontario Personal Property Security Registration System

Persons involved in one of two types of transactions would make a registration in the Ontario Personal Property Security Registration System: (1) Creditors who secure payment of a debt by taking a security interest in the personal property of the debtor should register a financing statement under the Personal Property Security Act (Ontario) (frequently referred to as the “PPSA”); or (2) persons who repair or store an article and who, prior to receiving full payment give up possession of that article, should register a claim for lien under the Repair and Storage Liens Act (frequently referred to as the “RSLA”).

Registering in the PPSR System helps to establish priorities between individuals with competing interests in the same personal property, and in the case of a claim for lien will ensure that the non-possessory lien is enforceable against third parties. Information is kept current through the registration of a financing change statement. For instance if any information changes about the property, the lender or the borrower, a financing change statement can be filed to update the information.

What is the Registration Process

Lenders and borrowers must enter into what are called “security agreements”. The Lender registers a notice of the agreement in the PPSR System. This is done by completing and submitting a document electronically called a financing statement. This must be done by an online service such as a search house. This registration is done by the Lender because it is the Lender who wants to protect its interest in the security.

The information is then recorded on the PPSR System and remains there until such time as the PPSA registration has been discharged by the Lender.

It is not just loan companies that can register a PPSA. If you have loaned money to a person you can have this individual sign a promissory note or a security agreement and you can then register a PPSA financing statement against that individual. You do not have to have a solicitor prepare this document for you but it is always the best route.

What Information is Included in the PPSA Financing Statement

In the case of a consumer car loan this would include the borrower’s name, address and date of birth, the lender’s name and business address, the registration period, classification of the collateral as consumer goods, initial amount of the loan, maturity date and description of the car including motor vehicle identification number (VIN).

Even though only a summary of the information can be registered, it is important to have complete information. For instance, having the first name, middle name and last name of the debtor is better than just the first and second name. Consider the name “John Smith” which is very common. If you were to do a search of this name through the PPSR System you would get results for more than one person. However, if you register the name “John Abbot Smith” the search results would be more narrow. Including the date of birth is another way of ensuring specific information about the debtor. Further describing the security is important. For instance, describing the security as a TV would not be as good as saying that it is a Sony 30 inch flat screen TV with Serial Number: 29845. There is a box on the form which will allow you to put in a description of the security which is 2 or 3 lines long. Take advantage of this opportunity.

How Long is the Information Retained in the PPSR System

Lenders must select the time period for the registration. Business loans may be registered for as long as 25 years, or for a perpetual period. The longer the time period, the more money it is to register a PPSA. In the case of consumer loans, lenders can register only for up to five years at a time but the PPSA registration can be renewed for a further five years. The onus would be on the lender to ensure it re-registers at the appropriate time.

How Does a PPSA Registration Become Discharged

When the consumer loan is repaid the lender is required to register a “discharge” within 30 days. Frequently this is not done so if you are the borrower you should ensure that this is done on your behalf by the lender.

Even if the borrower has paid the lender all of the money that he or she owes to the lender, the borrower should not discharge the PPSA registration on his or her own. The borrower should contact the lender and request that the PPSA registration be discharged.

What Should You Do if the Lender Does not Discharge the PPSA Registration After All Payments Have Been Made

Where the secured party (in this situation the lender), without reasonable excuse, fails to register the financing change statement, or certificate of discharge or partial discharge, or all of them, as the case may be, required pursuant to the Personal Property Security Act (Ontario) within 10 days after receiving a demand for it, the secured party shall pay $500 to the person making the demand (in this case the borrower) and any damages resulting from the failure. The sum and damages are recoverable in any court of competent jurisdiction.

If no discharge is registered the PPSA registration will remain on the system until the end of the registration period.

Why Should You Do a Search Before Buying a Used Product

Before buying a used car or other used goods, consumers should do a PPSA search to protect themselves financially. For example, a search may indicate that the seller or a previous owner has obtained a loan and that the seller may not have full rights in the used car that the consumer wants to buy. A PPSA search might ascertain that there is an outstanding amount still owed against the used car. It may be that this loan is paid off already but the discharge has not been done. If so, the search results will enable the consumer to contact the seller to confirm whether or not the loan taken out by the seller is still in effect, and to obtain further details. If the loan has been repaid but there is still a PPSA registration on file respecting the loan, the buyer should insist that the seller to promptly register a discharge before the sale is completed. However, if there is an outstanding loan, the consumer may either decide against completing the sale or require the seller to arrange for payment of the loan as well as registration of the discharge. It would be a terrible situation for you if you were to buy a used car and later find out that a bank loan was outstanding regarding that vehicle and that you do not actually own it at all.

If the seller has rights in the used car and a search is not done, the car could later be seized if the buyer fails to repay the loan. A PPSA search is not required when buying a new item such as a car.

What Information is Required to Do a Search Against a Business Name

The legal name of the business must first be determined. If the business is a corporation, the incorporated name should be searched, i.e. 279482 Ontario Inc. In the case of a partnership a search should be done against the partnership name. If a company or business carries on business under a trade name, such as 279482 Ontario Inc. operating as Joe’s Used Car Sales, the search must also be done under the business name. It is important that you know the exact and proper name of a company or business before you do a search otherwise your search may not provide you with the proper information. If you have any concerns about whether you have an accurate name of a company Resources for Canadian Business Owners may be able to help you with this as a free service. Contact us and we will see what we can find out for you prior to you performing a PPSA search.

What Information is Needed to Search Against an Individual’s Name

There are two types of individual PPSA name searches when searching an individual’s name. You may request that either an individual specific or an individual non-specific be done.

You must supply the first given name, initial of second given name (if any), surname and date of birth of an individual to do an Individual Specific Search. This information should be verified against an official document such as a birth certificate, change of name certificate or certificate of Canadian citizenship. The search is called “Specific” because you have specific information about this person beyond his or her first and last names. You might have a birth date and/or a middle name.

A Non-Specific Search requires only the first given name and surname. This search should be done when a consumer does not know the individual’s date of birth or the initial of the second given name or wants to lessen the risk of missing a registration due to error. Sometimes a registration might be done against an individual by their first and last name and at other times by their first, second and last name. Therefore sometimes doing a non-specific search will give you wider results and thereby not miss the registration you are looking for. Keep in mind though if the name is common you could wait a few weeks to get the results since if the number of pages of the search is extensive the search results have to be mailed rather than pdfed to you by email.

The results for both types of searches will disclose only registrations that set out the exact name (and birth date for a specific search) which is searched.

The search results are provided in pdf form unless the search criteria is so vague the results are too expansive. For instance if you search John Smith it is possible to get 50 pages back from the government and this would have to be mailed. There would also be a time delay with this type of search.

How to Change Information on a Registered PPSA Financing Statement

It is possible to register a financing change statement in order to amend or update a registered PPSA financing statement.

8 Nov 2015

When is a Certificate of Status Issued

by Holly Crosgrey | posted in: Business Searches, Certificates of Status and Good Standing, Due Diligence, Maintaining Your Company | 0

A certificate of status can be obtained for any registered company. These certificates are not issued for sole proprietorships or partnerships or business names. Sometimes a certificate of status is called a certificate of good standing or a certificate of compliance but they are all the same type of document.

In most cases the information inserted onto a certificate of status will be the same for every jurisdiction and in Canada this is the case.

It will include the most current name of the company, the date of incorporation and confirmation that the company is in good standing. If the person or company that has requested a certificate of good standing from you wants additional information on the certificate it may be necessary to obtain a legal opinion instead.

How do you Confirm a Partnership or Sole Proprietorship is in Good Standing

The only way to do this is to order a partnership or sole proprietorship search. The search will show the buisness is active. Since there is no requirement for these types of registrations to do annual reports the only thing that needs to be in good standing is the registration itself. Some of these registrations will only last 3 years or 5 years and therefore if you have not renewed your registration you will not be able to obtain a clear search showing the registration is current.

What does in Good Standing Mean

In each jurisdiction in Canada and elsewhere it can actual mean something different. In some cases such as the federal jurisdiction and the BC jurisdiction all corporate annual returns or reports must be filed with the government in order to obtain a clear report.

These reports are required in many provinces and are to be filed annually. They are filed with the Companies Branches and they do not have anything to do with Revenue Canada filings.

A certificate of status in Canada does not confirm that federal tax returns are up-to-date, however, if the company has been dissolved by the Companies Branch for non-filing of tax returns, which normally takes 3 or four years of default filings to happen, then a clear certificate of status will not be able to be obtained.

Therefore if a few tax returns are outstanding you will still be able to obtain a certificate of status for your company as long as any corporate annual reports or returns have been filed.

23 Oct 2013

Federal Corporate Search

by Holly Crosgrey | posted in: Canada Business Corporations Act, Due Diligence, Federal, Searches for Info About Businesses | 0

A Federal Corporate Search provides a summary of the public record for a Canadian federal company. If you know how to read the record you will be able to ascertain a lot of information about a federal company. Below is an outline of the information on the public record along with some additional information:

Corporate Name History

The current and previous names of the company will be listed. As well, the federal corporate search will let you know the time period in which each name was used.

Registered Office Address

A federal company can have its registered office in any province or territory in Canada. The public record will show this address. The Canada Business Corporations Act, which governs federal share companies, requires that a change of address be reflected on the public record within 15 days. Frequently address changes are not updated that quickly.

Date of Formation and Federal Corporation Number

The date of incorporation, date of amalgamation or date of continuance will be shown on the record. Every federal company is assigned a federal corporation number and this number will be shown on the federal corporate search.

Federal Business Number

The Federal Business Number is assigned by Revenue Canada Agency. This is the number that goes on the corporate tax return. The federal jurisdiction is the only jurisdiction that adds the Federal Business Number of the federal company onto the public register. Anyone requesting a federal corporate search will be able to obtain this number.

Directors

The names of the directors will be shown on the public record. The personal addresses or the addresses for service will not be shown.

A corporate search house can ascertain these addresses for you as part of the federal corporate search process if you ask them to do a further search. If you require these addresses be sure to advise the search house in advance that you need this information.

The record also shows how many directors are currently authorized by the articles. Frequently there will be a range from a minimum of 1 to a maximum number, usually 10.

Annual Filings

This section of the corporate search is very important. Every federal company must file a federal annual report within two months of the anniversary date of its incorporation.

The corporate record provides you with the anniversary date and the time period in which the annual filing must be done. This is called the Annual Filing Period.

If this annual filing is not done within the Annual Filing Period the company is considered not to be in good standing and a Certificate of Compliance (sometimes called a Certificate of Status) will not favourable.

If the federal annual filing is not done for three years the company will be dissolved. If this happens, the company will need to be revived in order to continue conducting business.

Accountants frequently do these filings on behalf of their clients but it is up to the owner of the federal company to ensure these filings are done each year.

Federal annual filings are a requirement of Corporations Canada, the branch of the federal government which handles company matters. Federal Certificates of Compliance are frequently required by banks, solicitors, suppliers, etc.

It is therefore important to check your corporate record upon occasion to be sure all of these filings are up-to-date.

Do not mistake these filings for federal tax return filings required pursuant to the Income Tax Act and Revenue Canada Agency. The federal annual filings are not connected to the federal tax return filings but both must be filed within the appropriate deadlines.

If the federal tax returns are not filed for a number of years the company will be dissolved. It is not possible to ascertain from a federal corporate search, whether the company is up-to-date in its tax filings, however, if the company has been dissolved for non-filing of tax returns then it is possible this was the reason why unless the search indicates “voluntary dissolution”.

A voluntary dissolution occurs when a company wishes to go out of business. The federal company search will let you know if the company has been dissolved.

Governing Statute

Federal companies can be incorporated pursuant to different federal statutes. The governing statute for the company will also be listed on the federal corporate search.

Corporate History of Filings of Articles

A federal corporate search will provide a list of all of the articles filed on behalf of the company. It will start with the Certificate of Incorporation and then list all amendments to the Certificate of Incorporation and the date on which the Articles of Amendment were filed. If the company has been dissolved and then revived, those dates will also be listed.

It is easy to get copies of the articles of a federal company.

The corporate history will also indicate whether the company is an amalgamated company and what the pre-amalgamated companies are. When two companies amalgamate (join together) this is called an amalgamation and a new company is formed.

The federal government will provide you with the corporate numbers of the companies that joined so that you may search those records if you wish. The companies that joined are called the pre-amalgamated companies.

The federal government will also let you know if the company was previously incorporated in another jurisdiction and then continued (i.e. moved) from that province or territory to the federal jurisdiction. This is called a continuance.

Shareholders

You cannot ascertain the shareholders of a federal company by ordering a federal corporate search. The shareholders of a federal company are considered private information that is not put on the public record.

Type of Company

There are three classifications of federal companies:

Non-distributing corporations with 50 or fewer shareholders – This is a privately owned company that does not sell shares to the public.
Non-distributing corporations with more than 50 shareholders – This is a company that is in the process of becoming public and has issued shares through private placements in order to obtain the funds to go public.
Distributing corporation – This is a public company that sells shares to the public.

Operating Trade Names

If a federal company is carrying on business under an operating trade name, the federal corporate search will not show this. In order to determine any trade names being used by the company you would need to search the provincial or territorial jurisdiction in which the company’s registered office is located. Operating trade names are a provincial and territorial statute requirement. If a federal company operates in a province under a name other than its own, it should register that name in the Canadian jurisdiction.

An operating trade name search or business name search can be done to find out more information about operating names being used on behalf of the company.