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The Personal Property Security Amendment Act

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S.M. 2015, c. 35

Bill 28, 4th Session, 40th Legislature

The Personal Property Security Amendment Act

(Assented to November 5, 2015)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. P35 amended

1           The Personal Property Security Act is amended by this Act.

2(1)        Subsection 36(7) is replaced with the following:

Subordinate interest in fixture

36(7)       A security interest referred to in subsection (3) or (6) is subordinate to the interest of a person who has registered in the appropriate land titles office a certificate affecting the land issued under The Judgments Act before the security interest is registered in accordance with section 49.

2(2)        Subsection 36(8) is amended by striking out "creditor or".

3(1)        Subsection 37(5) is replaced with the following:

Interest of creditor in growing crop

37(5)       A security interest referred to in subsection (3) is subordinate to the interest of a person who has registered in the appropriate land titles office a certificate affecting the land issued under The Judgments Act before the security interest is registered in accordance with section 49.

3(2)        Subsection 37(6) is amended by striking out "creditor or".

4           Subsection 42(3) is amended by striking out "to 42.3," and substituting "to 42.3 and Part 6.1,".

5           Subsection 50(8) is amended by striking out "or" at the end of clause (a) and repealing clause (b).

6           Clause 52(1)(b) is amended by striking out "and 43(11)," and substituting ", 43(11) and 71.3(1),".

7           The following is added after section 71:

PART 6.1

VEXATIOUS REGISTRATIONS

DEFINITIONS AND APPLICATION

Definitions

71.1        The following definitions apply in this Part.

"affected party", in relation to a financing statement, means a person who is named as a debtor or secured party in the statement. (« partie visée »)

"discharge" includes a partial discharge. (« mainlevée »)

"vexatious registration" means the registration of a financing statement that

(a) the Registrar reasonably considers to have been submitted for the purpose of annoying or harassing the person named as a debtor in the financing statement; and

(b) has been submitted by or on behalf of a person who

(i) does not hold the security interest referred to in the financing statement, or

(ii) is claiming an interest that is not registrable under this Act. (« enregistrement vexatoire »)

Application

71.2        This Part applies in relation to every financing statement whether registered or submitted for registration before or after the coming into force of this section.

REGISTRAR'S DECISION

Registrar may reject financing statement

71.3(1)     The Registrar may reject a financing statement that if registered would result in a vexatious registration.

Reasons to be given

71.3(2)     The Registrar must give the person who submitted the financing statement

(a) written reasons for rejecting the financing statement; and

(b) notice of the right to appeal that decision to the Registrar-General.

Registrar may discharge vexatious registration

71.4(1)     The Registrar may discharge a vexatious registration on his or her own initiative or in response to a written request from a person named as a debtor in the financing statement. A request must explain why the registration is a vexatious registration.

Registrar may notify other affected parties

71.4(2)     The Registrar may notify any other affected party that a request has been received from the debtor.

Reasons to be given

71.4(3)     The Registrar must give each affected party

(a) written reasons for discharging the registration, or for a decision not to discharge the registration; and

(b) notice of the right to appeal that decision to the Registrar-General.

APPEALS

Rejection may be appealed

71.5(1)     The rejection of a financing statement under subsection 71.3(1) may be appealed to the Registrar-General by the person who submitted it for registration.

Discharge may be appealed

71.5(2)     The discharge of a registration under subsection 71.4(1) may be appealed to the Registrar-General by the person named as the secured party.

Decision not to discharge may be appealed

71.5(3)     A decision not to discharge a registration under subsection 71.4(1) may be appealed to the Registrar-General by the person who requested the discharge.

How to appeal

71.5(4)     To make an appeal under this section, the appellant must give the Registrar-General a notice of appeal within 14 days after receiving the Registrar's written reasons for the decision. The notice must specify the reasons for the appeal.

Decisions Registrar-General may make

71.5(5)     After considering the reasons of the Registrar and the appellant, the Registrar-General may

(a) confirm the action or decision of the Registrar; or

(b) direct the Registrar to register the financing statement or discharge the registration.

Reasons to be given

71.5(6)     The Registrar-General must give the Registrar, the appellant and each affected party

(a) written reasons for his or her decision; and

(b) notice of the right to appeal that decision to the court.

Appeal to court

71.6(1)     The Registrar-General's decision may be appealed to the court by the person whose financing statement was rejected or by any affected party named in the financing statement.

How to appeal

71.6(2)     To appeal a decision of the Registrar-General, the appellant must file a notice of appeal with the court within 14 days after receiving the written reasons for the decision and give a copy of the notice to the Registrar-General and any other affected party.

Registrar-General is party to appeal

71.6(3)     The Registrar-General is a party to the appeal.

Court order

71.6(4)     On hearing the appeal, the court may

(a) confirm or quash the Registrar-General's decision or make any decision that the Registrar-General could make; and

(b) make any other order that the court considers appropriate, including an order as to costs.

DIRECTIONS AND PRIORITY

Registrar must comply with direction or order

71.7(1)     The Registrar must register a financing statement or discharge a registration as directed by the Registrar-General or a court order.

No notice required

71.7(2)     When the Registrar registers a financing statement or discharges a registration as required under subsection (1), the Registrar may do so without notice to the secured party or any other affected party.

Effect on priority

71.8        If a financing statement is discharged and then registered after an appeal under this Part, the discharge does not affect the priority status of the security interest in relation to a competing perfected security interest that immediately before the discharge has a subordinate priority position, except to the extent that such competing security interest secures advances made or contracted for after the discharge and before the registration.

RESTRICTION AGAINST ELECTRONIC SUBMISSIONS

Vexatious party may be restricted to printed submission

71.9(1)     Despite subsection 43(1), if the Registrar is satisfied that a person has attempted, successfully or unsuccessfully, to make a vexatious registration the Registrar may, by written notice to the person, require all financing statements submitted by or on behalf of the person for registration under this Act to be submitted in printed form.

Content of notice

71.9(2)     The notice must

(a) name the person who is the subject of the restriction;

(b) state that the person may submit a financing statement for registration only in printed form;

(c) state the reasons for imposing the restriction;

(d) specify the time period during which the restriction applies; and

(e) state that the person may request a review by the Registrar-General.

The notice may also include any other terms and conditions that the Registrar considers appropriate.

Immediate effect

71.9(3)     The restriction is effective immediately upon the notice being given to the person and continues in effect for the period specified in the notice unless

(a) the Registrar-General quashes the restriction or varies the period to which it applies; or

(b) the Registrar, being satisfied that the restriction is no longer needed, rescinds the restriction.

Review by Registrar-General

71.10(1)    A person who is given a notice under section 71.9 may, within 30 days after receiving it, apply in writing to the Registrar-General for a review. The application must explain why the restriction should not have been imposed or why the time period or any other term or condition specified in the notice should be varied or quashed.

Decisions Registrar-General may make

71.10(2)    After considering the Registrar's notice and the applicant's reasons, the Registrar-General may confirm, vary or quash the Registrar's decision.

Reasons to be given

71.10(3)    The Registrar-General must give written reasons for the decision to the applicant.

Decision is final

71.10(4)    The decision of the Registrar-General under this section is final.

MISCELLANEOUS

Registrar not required to take action

71.11       Subject to subsection 71.7(1), nothing in this Part is to be construed as requiring the Registrar to

(a) reject a financing statement or discharge a registration; or

(b) act on the request of or on behalf of an affected party named in a financing statement.

Giving notice

71.12       Section 68 applies to any notice given under this Part.

Registrar-General's powers and duties

71.13(1)    The powers and duties assigned to the Registrar-General under this Part are in addition to the general oversight powers referred to in subsection 42.1(1).

No delegation by Registrar-General

71.13(2)    The Registrar-General may not delegate any of his or her powers or duties under this Part.

Limited application of other provisions

71.13(3)    For the purpose of this Part,

(a) subsection 42.3(1) does not apply; and

(b) subsection 66(1) applies only to a question, action or issue in respect of section 71.8.

Coming into force

8           This Act comes into force on the day it receives royal assent.