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There is growing confusion about whether the appointment of a receiver under section 243 of the Bankruptcy and Insolvency Act can also be subject to the Civil Code of Quebec’s (CCQ) prior notice rules. Justice Paquette recently decided in Mise sous séquestre de DAC Aviation internationale ltée1 that the appointment of a receiver under section 243 was not only subject to the delay provided by section 244(2) BIA, but also to the delays and modalities for the prior notice of the exercise of hypothecary rights prescribed by the CCQ.
Practically, this means that in addition to the BIA notice requirements, appointing a receiver under section 243 BIA will require notification of the registry office and notification delays of between 10 to 60 days depending on the nature of the proposed hypothecary right and underlying nature of the hypothecated property.
A financial institution (FI) was a secured creditor for DAC Aviation Internationale Ltée (DAC) with a hypothec on the universality of DAC’s assets. The FI and DAC agreed to a forbearance agreement. Subsequently, the FI alleged DAC failed in its duty to collaborate and therefore applied to the Superior Court of Quebec for the appointment of Raymond Chabot Inc. (RCGT) as the receiver of DAC’s assets. The FI sent a 10-day notice under section 244(2) BIA but did not send a notice under the CCQ.
According to Justice Paquette, objective and subjective conditions must be satisfied in appointing a receiver under section 243 BIA. The objective conditions require a 10-day notice to the debtor (section 244(2) BIA); the subjective conditions require the appointment to be “just or convenient” (section 243(1) BIA). According to Justice Paquette, the objective conditions also require compliance with the rules governing the exercise of hypothecary rights under the CCQ.
Justice Paquette began the objective prong of her analysis by highlighting the jurisprudential controversy over the dual application of the BIA and CCQ.2 Justice Paquette echoed Justice Ouellet’s reasoning in Mécanique NS and Justice Dumas in Media 5 by arguing that appointing a receiver is akin to exercising a hypothecary right.
In other words, appointing a receiver under the BIA or, for example, a designated person under article 2791 CCQ does not erase the CCQ notice requirements.3 The exercise of such rights falls clearly within the CCQ’s purview and, barring express conflict with the BIA, provincial laws continue to apply.4 Accordingly, the FI had not satisfied the objective conditions as it had not provided notice pursuant to the delays and modalities of the CCQ.
Moving to the subjective conditions, Justice Paquette was unconvinced that appointing a receiver would be just or convenient in the circumstances given that (1) DAC had not breached the terms of its forbearance agreement with the FI and (2) RCGT’s opinions did not account for the value of DAC’s holdings in foreign companies.5
Per Justice Paquette, the appointment of a receiver under section 243 BIA can be made if the following conditions are satisfied:
Objective conditions
Subjective condition
Other considerations
The Quebec Court of Appeal will have an opportunity to clarify this debate in the upcoming hearing on the appeal of Media5 on June 16, 2020.
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