Canada: Banking & Finance 2023

1. Loan Market Overview

1.1 The Regulatory Environment and Economic Background

The elevated rate environment has had a similar impact on the bank finance markets in Canada as it has in the US and European markets. While the large Canadian banks have generally continued to remain open to new lending, the cost of new money to domestic borrowers and issuers has had a dampening effect on new money financings and refinancings. This coincides with the softer Canadian M&A market observed through much of 2022 and early 2023.

While regulatory concerns have had less of a direct impact on Canadian banks than those of its neighbour and largest trading partner, the current economic cycle has caused the largest domestic lenders to more carefully analyse credits, moderately tighten lending standards and increase pricing margins. As a result, many borrowers have looked more to amend and extend terms where possible rather than pursuing refinancing options in order to avoid having their debt re-priced and covenants re-examined in the current environment.

1.2 Impact of the Ukraine War

Aside from consequential sanctions which are now often more precisely reflected in AML and related terms in documentation, there has been no observed impact on the Canadian loan market or deal terms or trends.

1.3 The High-Yield Market

The Canadian dollar high-yield market has continued to grow in scale over the last decade, offering a viable financing option to Canadian issuers that had not previously been well developed. The country's domestic high-yield market is often accessed by junior issuers in the mining and oil and gas sectors.

The Canadian dollar high-yield market remains small relative to the Canadian loan market when compared to the US dollar high-yield market and its size and scope vis-à-vis the US loan market. Given Canada's proximity to the major US money centres and related US investor pool, many Canadian issuers looking to do a high-yield offering continue to look to the US market to do so. Those transactions commonly are done under NY law. As a result of the familiarity Canadian issuers and underwriters have the US market, terms and trends, and also due to its proximity and easy access to the key US financing hubs, many of the trends and developments coming out of the US high-yield market (and also to some degree to the US loan market, depending on the dollar values of a particular transaction) migrate to the terms seen in the much smaller-scale Canadian dollar high-yield market.

1.4 Alternative Credit Providers

There has been a steady growth of alternative lenders and private credit originating and transacting on new financings in the middle market and lower-middle market. While that has been a somewhat recent development, there has for some time also been a number of domestic non-bank credit providers that focus on certain industries, asset classes or distressed opportunities. There are also a small number of larger alternative lenders, often backed by institutional money (pension funds, larger family offices, etc), that very selectively have arranged unilaterally, or together with a small "club" of similar alternative lenders, larger value financings.

The growth of the alternative lender/direct lender market in the Canadian loan market, and their relevance in this market, is not yet at the same level as in the US. While it is not uncommon to see US PE direct lenders financing M&A that has a material Canadian component, or that may be specifically in respect of a Canadian target, that is typically in the context of a US buyer calling on its preferred financing sources to support the "Canadian M&A" opportunity. The writers have not yet observed, to the same degree as seen in the US markets, Canadian banks being displaced by alternative lenders in the Canadian leveraged finance markets.

Of some interest is the fact that the largest Canadian pension funds have increasingly made direct lending a meaningful part of their business and investment portfolio. However, that has not yet translated into those institutions building a significant presence or position in the country's domestic lending markets.

1.5 Banking and Finance Techniques

Sponsors have continued to finance investments utilising payment-in-kind (PIK) debt and preferred equity instruments, both of which have become more common in the Canadian and cross-border lending markets. The increased use of these instruments appears to be driven both by investor appetite and as a result of borrowers' interest in flexible capital solutions that allow for greater preservation of cash flows (whether to service other debt, to pursue growth or otherwise). In addition, sponsors utilise PIK financings, which may or not be secured, to increase their position in the capital structure in particular in highly leveraged or distressed situations. However, it is not clear that these instruments are used in Canada to the same degree as in the US or other markets, and experience suggests they are comparatively less common in the domestic lending market. However, in a higher interest rate environment, use of PIK loans and preferred equity instruments may see increased use as equity-like bridge capital where preservation of cash flow is important. Canadian pension funds and other private lenders have provided more PIK loans and preferred equity instruments in their investments, particularly outside of Canada and in the cross-border lending market, where experience reflects trends in the US and other markets. The writers have also seen a number of government programmes providing financing or grants in particular in the areas of exports and renewables. Alternate lenders have also been seen to take warrants as a way to increase their returns to offset a lower interest rate.

1.6 ESG/Sustainability-Linked Lending

This has become a fairly entrenched part of the Canadian financing landscape and, in particular, with listed entities. While there have been no recent new developments on this front, SLLs are very much in favour among both the largest banks and mature Canadian borrowers across all business and industry sectors. It is common to find sustainability-linked pricing now included in large corporate credits. The authors have not seen a significant uptake of SLLs in medium to smaller credits beyond what is required under securities legislation.

2. Authorisation

2.1 Providing Financing to a Company

In order to carry on business in Canada, banks (whether Canadian or foreign) are required to be licensed under the Bank Act (Canada) by the Office of the Superintendent of Financial Institutions (OSFI), Canada's banking regulator. Foreign banks may lend to Canadian companies without being licensed by OSFI if the foreign bank's activities are undertaken outside Canada.

Non-bank lenders are not subject to licensing by OSFI, and require only the minimal registration and licensing required of any business carrying on business in Canada.

3. Structuring and Documentation

3.1 Restrictions on Foreign Lenders Providing Loans

Canadian subsidiaries of foreign banks that are licensed by OSFI to carry on business in Canada are subject to the same capital adequacy rules with respect to loans on their balance sheet as Canadian banks. Authorised foreign bank branches in Canada are not subject to OSFI's capital adequacy rules (as they are presumed to be subject to equivalent regulation in their home jurisdiction).

Foreign non-bank lenders are not restricted from providing loans to Canadian companies.

All loans in Canada will be subject to Canadian usury laws which limit the amount of interest and certain fees that can be charged.

Loans to natural persons in Canada are subject to provincial consumer protection legislation in the province where the consumer resides. Such regulation can be onerous to lenders and in some provinces, consumer lenders are required to be licensed.

3.2 Restrictions on Foreign Lenders Receiving Security

Receiving and enforcing security in Canada (by way of sale or receiver) is not considered carrying on business in Canada, provided that the lender was acting from outside Canada in taking the security.

3.3 Restrictions and Controls on Foreign Currency Exchange

Canada does not impose currency or exchange controls.

An entity that engages in the business of exchanging foreign currency (including cryptocurrency), either in Canada or from outside Canada directed to Canadian residents, is required to register as a money services business with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), Canada's anti-money laundering regulator, and is subject to anti-money laundering rules and oversight by FINTRAC.

3.4 Restrictions on the Borrower's Use of Proceeds

Canadian loan documents typically restrict the use of proceeds to specific purposes which can include for general corporate purposes. The borrower will typically be prohibited from using proceeds in contravention of anti-money laundering and sanctions law in Canada and other applicable countries.

3.5 Agent and Trust Concepts

The appointment of an administrative agent and collateral agent by a lender syndicate is an enforceable contractual arrangement under Canadian law. Trusts are recognised concepts in Canadian law and a bank or trust company commonly acts as trustee in financings where debt securities are issued by a borrower. There are no common alternatives to the agency or trust structures.

3.6 Loan Transfer Mechanisms

The transfer of economic interests in a loan are governed by the loan agreement and may be transferred by way of assignment or by sale of a participation in the loan. In a permitted assignment, all or a portion of the loan is sold to a purchaser which becomes party to the loan agreement and can vote on all matters requiring lender approval. In the sale of a participation, a portion of a lender's economic interest in the loan is sold and the purchaser has the right to receive principal and interest payments but is not party to the loan, and their voting rights are limited to matters affecting their fundamental rights under the loan. If the entirety of a loan is sold, the loan's security will be assigned to the purchaser. However, if a participation is sold, or an individual lender's loan in a syndicated loan is assigned, the original lender or collateral agent will retain the security.

3.7 Debt Buy-Back

Debt buy-backs by a borrower or its sponsor are permitted, subject to the provisions in the loan agreement. Typically, a borrower makes a rateable offer to all its debt holders and purchases its debt by Dutch auction. The purchased debt is then extinguished. A sponsor typically has the right to purchase debt (up to a limit) from an individual lender on the open market. A sponsor may hold the purchased debt subject to limitations on voting.

3.8 Public Acquisition Finance

Certain funds or "SunGard" conditions are very usual but not mandatory in Canadian acquisition finance and are commonly negotiated and accepted by acquirers and their financing sources, and are often a required feature demanded by Canadian targets in any acquirer financing package, particularly in an auction or competitive bidding scenario.

Under the Canadian takeover bid rules, acquirers bidding on a Canadian publicly listed target company must make adequate financing arrangements before making a bid. This does not require that the financing be entirely unconditional, but rather that the bidder reasonably believe that the possibility is remote that it will not be able to pay for the securities subject to the takeover bid.

Typically, for an acquisition with certain funds, a commitment letter containing a term sheet is signed by the purchaser and the lender underwriting the financing at the same time the purchaser enters into the acquisition agreement with the target. Subsequently, the purchaser and lenders enter into the definitive documentation for the financing at the same time the acquisition closes.

3.9 Recent Legal and Commercial Developments

For variable rate loans, Canadian regulators have mandated the transition from the Canadian Dollar Offered Rate (CDOR), a benchmark based on the rate banks lend via bankers' acceptances, to the Canadian Overnight Repo Rate Average (CORRA), a benchmark based on repo transactions of government of Canada debt. New loan contracts must reference CORRA and not CDOR after 1 November 2023, and CDOR will cease being published after 28 June 2024. Bankers' acceptances are also being phased out as part of the CORRA transition.

3.10 Usury Laws

The Criminal Code (Canada) limits interest (including most fees and expenses charged by a lender) to an annual effective rate of 60%. The government of Canada recently introduced proposals to lower the maximum legal interest rate to an annual percentage rate of 35%.

3.11 Disclosure Requirements

The Interest Act (Canada) requires that all interest rates be expressed as an annual rate. If an agreement contains an interest rate that is expressed for a period of less than one year, the interest rate may be capped at a 5% annual rate. Listed companies are required to file all material contracts outside the normal course of business or credit agreements with terms that have a direct correlation with anticipated cash distributions which may include provisions restricting dividends or debt covenants and certain events of default.

4. Tax

4.1 Withholding Tax

Payments of principal are not subject to Canadian withholding tax. Subject to certain exceptions, non-participating interest and customary fees paid to arm's length lenders are generally not subject to Canadian withholding tax. In the case of payments of interest to US residents who are entitled to the benefits of the Canada-US tax treaty, such interest paid to a person who does not deal at arm's length with the Canadian payor is also exempt from Canadian withholding tax.

4.2 Other Taxes, Duties, Charges or Tax Considerations

Generally, the making of loans (and granting of security or guarantees in connection therewith) is not subject to any registration or transfer tax, stamp duty or similar levy in Canada. Personal property security filings have nominal fees and filing fees for mortgages or real property are based on the amount of the loan or the value of the property.

4.3 Foreign Lenders or Non-money Centre Bank Lenders

Canadian tax concerns to foreign lenders can arise where such lenders own or acquire a material equity interest in a Canadian borrower, where they dispose of debt of a Canadian borrower to non-arm's length Canadian residents, or where they hold convertible debt of a Canadian borrower. Concerns can also arise in the event of a restructuring of Canadian-source debt or seizure of collateral. Canadian tax advice may be needed in such situations, as the issues and potential strategies will depend on the particular facts.

5. Guarantees and Security

5.1 Assets and Forms of Security

In Canada, all assets are generally available as collateral to lenders. In common-law provinces, security over personal property takes the form of a security agreement, which is perfected by registration with the provincial registry, or a pledge of investment property which may, in addition to perfection by registration, be perfected by control. Security over real property takes the form of a mortgage which is perfected by registration with the provincial land registry. Real property documents often require wet ink signatures. In certain provinces, the registration of a mortgage will be weeks after submission. Title insurance may be acquired to bridge the period for submission to registration. In Québec, incorporeal and moveable corporeal property are charged by hypothec which is registered with Québec's provincial registry. In Québec, immovable property is also charged by way of hypothec which is registered with a Québec land registry. A lender does not have a valid security interest unless it perfects its security interest. Personal property security can be taken quickly in Canada and costs are minimal compared to other jurisdictions.

5.2 Floating Charges and/or Similar Security Interests

All common-law provinces permit a security interest over a debtor's present and later-acquired real and personal property. Québec permits a hypothec on the universality of a debtor's present and future property. Certain provisions also provide for a floating charge on real property.

5.3 Downstream, Upstream and Cross-Stream Guarantees

In Canada there are no limitations or restrictions on downstream, upstream or cross-stream guarantees, however certain business statutes require either notice or consent by the applicable shareholders.

5.4 Restrictions on the Target

A target company is not restricted from entering into guarantees, granting security or otherwise providing financial assistance for the acquisition of its own shares, unless the target later becomes insolvent and the use of proceeds of the acquisition is determined to be a fraudulent conveyance or preference.

5.5 Other Restrictions

Anti-assignment provisions are often found in government, licence, franchise, distribution, supply, joint venture and partnership agreements and may require the prior consent of the counterparty for a security interest to be taken in such agreement. Obtaining these consents may involve a considerable amount of time and expense. In certain provinces, the ability of an entity to hold a mortgage is limited to certain entities, however the use of a local collateral agent can address any issues.

5.6 Release of Typical Forms of Security

A lender or administrative agent will contractually release a guarantor from its guarantee and security obligations and discharge any security registration against the guarantor if the guarantor is required to be released under the loan documents. Similarly, loan agreements typically require a lender or collateral agent to amend its security registration to release specific assets of a loan party that are sold pursuant to a permitted disposition.

5.7 Rules Governing the Priority of Competing Security Interests

Priority is generally governed by order of creditor registration under the personal property security acts of the common-law provinces, although priority with respect to investment property is governed by control. Priority under the various real property registries is also governed by order of registration. Lenders may contractually vary their priority by entering into subordination and intercreditor agreements, which remain enforceable following the insolvency of a borrower.

5.8 Priming Liens

A lender's security interest is often primed by:

• a landlord's right of distress over a tenant's assets;
• a purchase money security interest over specific goods financed by a creditor;
• unfunded liabilities under a Canadian pension plan;
• Crown super priorities for employee income tax and payroll contributions;
• Crown deemed trusts for sales tax; and
• super priorities for up to USD2,000 of unpaid wages per employee.

A lender may have a landlord agree to subordinate its right of distress to the lender's security interest and may have a creditor agree to limit its purchase money security interest to specific financed goods. The other priming interests listed above cannot be contractually subordinated or limited although a loan agreement will usually have notice provisions and restrictions relating to these interests. There is recent case law that certain environmental liabilities are paid prior to payments to a lender post insolvency. The courts are currently considering whether such environmental liabilities also need to be addressed pre insolvency.

6. Enforcement

6.1 Enforcement of Collateral by Secured Lenders

Upon the occurrence of a default under the applicable security documentation, a secured lender can enforce its personal property security under provincial law (Personal Property Security Act (PSA) or similar legislation under each province) by providing notice of default and notice of its intention to foreclose upon or sell the collateral. In addition, in the case of real property, a secured party can enforce its security by way of a foreclosure action. If the collateral represents all or substantially all of the assets used in the business of an insolvent debtor, ten days' statutory notice must also be provided under Section 244 of the federal Bankruptcy and Insolvency Act (BIA). After expiry of the notice period set out in the BIA and the applicable PPSA or similar legislation, secured lenders can generally take possession of and sell the collateral directly or through an agent (eg, privately appointed receiver) or can apply to the court for the appointment of a receiver under the BIA.

6.2 Foreign Law and Jurisdiction

Assuming that the choice of foreign law is legally binding and enforceable under such foreign law, in any proceeding in a court of competent jurisdiction in Canada for the enforcement of a certain agreement, the Canadian court would apply the foreign laws, in accordance with the parties' choice of the foreign law in such agreement, to all issues chosen to be governed by the foreign law and which under local Canadian law are to be determined in accordance with the chosen law of the contract, provided that:

• the parties' choice of the foreign law is bona fide and legal and there is no reason for avoiding the choice on the grounds of public policy, as such term is interpreted under local Canadian law; and
• in any such proceeding, and notwithstanding the parties' choice of law, the Canadian court:
  • will not take judicial notice of the provisions of the foreign law but will only apply such provisions if they are pleaded and proven by expert testimony;
  • will not apply any foreign law and will apply local law to matters which would be characterised under local law as procedural;
  • will apply provisions of local law that have overriding effect;
  • will not apply any foreign law if such application would be characterised under local law as the direct or indirect enforcement of a foreign revenue, expropriatory, penal or other public law or if its application would be contrary to public policy; and
  • will not enforce the performance of any obligation that is illegal under the laws of any jurisdiction in which the obligation is to be performed.

6.3 Foreign Court Judgments

A Canadian court applying common law or reciprocal enforcement of judgments agreements will generally give a judgment based upon a final and conclusive in personam judgment of the foreign courts for a sum certain, obtained against a borrower or guarantor with respect to a claim arising out of a credit agreement, without reconsideration of the merits,

• provided that:
  • the court issuing a foreign judgment had jurisdiction over the borrower or guarantor as recognised under local law for the purposes of the enforcement of foreign judgments;
  • an action to enforce a foreign judgment must be commenced in the Canadian court within the shorter of the applicable local limitation period or the applicable foreign law limitation period;
  • the Canadian court has discretion to stay or decline to hear an action on a foreign judgment if such foreign judgment is under appeal or there is another subsisting judgment in any jurisdiction relating to the same cause of action;
  • the Canadian court will render judgment only in Canadian dollars; and
  • an action in the Canadian court on a foreign judgment may be affected by bankruptcy, insolvency or other laws affecting the enforcement of the rights of creditors generally; and
• subject to the following defences:
  • a foreign judgment was obtained by fraud or in a manner contrary to the principles of natural justice;
  • a foreign judgment is for a claim which, under local law, would be characterised as based on a foreign revenue, expropriatory, penal or other public law;
  • a foreign judgment is contrary to public policy or to an order made by the Attorney General of Canada under the Foreign Extraterritorial Measures Act (Canada) or by the Competition Tribunal under the Competition Act (Canada) in respect of certain judgments referred to in these statutes; and
  • a foreign judgment has been satisfied or is void under the foreign law.

6.4 A Foreign Lender's Ability to Enforce Its Rights

Foreign lenders should be cognisant of the requirement to have the security perfected under the laws of the Canadian province or territory in which the collateral is situated and for that perfection to be continued in the event that the collateral is moved to a different province or territory. Perfection is typically effected by registration under the applicable personal property security registry, but there are differences from province to province as to how security may be perfected in respect of different types of collateral. If the security is not perfected at the time the debtor becomes bankrupt, the security may be of no force or effect and the lender may become an unsecured creditor. In addition, the initiation of insolvency proceedings will generally stay a lender's rights to enforce its security unless the court lifts the stay to enable enforcement.

7. Bankruptcy and Insolvency

7.1 Impact of Insolvency Processes

A statutory stay of proceedings under the Bankruptcy and Insolvency Act (BIA) and a court-ordered stay under the Companies' Creditors Arrangement Act (CCAA) or in receivership proceedings will typically stay a lender from commencing or continuing an enforcement process against the debtor subject to the insolvency proceeding. The lender will typically have to seek leave of the court supervising the insolvency process to enforce its security or continue its enforcement action. The insolvency stay will not automatically prevent enforcement of a guarantee against a guarantor who is not subject to the insolvency proceeding, but the Court can extend the stay to such guarantors in a CCAA proceeding where it deems necessary to facilitate the restructuring.

7.2 Waterfall of Payments

On a company's insolvency, creditors are paid in the following order:

• certain "super-priority" government claims (eg, unremitted source deductions for payroll taxes);
• secured creditors to the extent of the value of their security over assets;
• preferred creditors in a bankruptcy (BIA Section 136), such as unpaid wages up to statutory limits and landlords for up to three months' arrears and three months' prospective rent if provided for under the lease; and
• unsecured (general) creditors.

In addition, certain payments in respect to environmental liabilities are paid prior to the payment of secured creditors.

7.3 Length of Insolvency Process and Recoveries

The length of insolvency processes varies based upon the complexity of the case. Simple bankruptcy and restructuring cases may be completed in a few months or less, whereas complex restructuring cases under the CCAA can last many years. Recoveries for creditors are typically more reliable within an insolvency process because a court officer (trustee, receiver, monitor) oversees the company's assets and recoveries.

7.4 Rescue or Reorganisation Procedures Other Than Insolvency

Companies that are not insolvent can enter into arrangements with noteholders and other holders of securities pursuant to corporate law statutes, for example to exchange such securities for other securities, money or other property of the company. This would entail a plan of arrangement that is put to the affected securities holders to vote upon but would not be voted upon by other creditors generally.

7.5 Risk Areas for Lenders

The main risks are the lender being stayed from being able to commence or continue enforcement and inadequate assets being available to satisfy the indebtedness owed to the lender after taking into account any priority claims (eg, senior security or statutory priority claims). Canada has also recently enacted legislation to give priority to defined benefit pension plans in respect of unfunded liabilities and solvency deficits, subject to a four-year transition period (effective 27 April 2027). Recent case law has also resulted in certain environmental payments being paid prior to the payment of the secured creditors. The law surrounding these environmental payment amounts is evolving and subject to continuing litigation.

8. Project Finance

8.1 Recent Project Finance Activity

Project finance has been active across Canada particularly in the areas of infrastructure (eg, senior homes, hospitals, sustainable transportation) and renewables energy (including primarily solar, hydrogen and wind).

8.2 Public-Private Partnership Transactions

Public-private partnership (P3) transactions are utilised in Canada. The majority of P3 financings have occurred in Quebec, Ontario and British Columbia. In recent years, many financings are for the construction of a project, which on completion has a large government payment that is used to pay off the construction senior debt. The traditional P3 finance model, which is reliant on a government revenue stream to pay both costs of construction and operations, also remains active in Canada, but with an added common approach to alternative or collaborative mode of delivery.

8.3 Governing Law

Proponents are able to utilise various laws for the various project documents depending on the parties' location, the location of the asset and the location and currency of the financing. As a general rule, there are no specific limitations on which laws should govern, although any documents relating to real property will generally be governed by the location of the land. Arbitration is rarely used for the finance documents but is occasionally utilised in the commercial documents.

8.4 Foreign Ownership

Foreign ownership may be limited under the Investment Canada Act or in respect to certain protected industries. In addition, certain provinces limit the amount of land outside of cities that may be owned by foreign entities. Entities subject to sanctions would also have ownership limitations or prohibitions. Canadian banks have a robust know your client and anti-money laundering regime applicable to all financings by the banks.

8.5 Structuring Deals

In structuring financing, the parties must consider ownership restrictions and laws specific to the type of asset. In many transactions, tax is a major influence on structuring decisions. Canada doesn't generally limit payments to offshore entities not subject to sanctions, but the payments may be subject to withholding taxes. The authors are seeing an increased focus on both indigenous consultation and investment/participation in respect of projects. Increased focus on inflation protection and risk protection, integrating benchmarking environmental protection and sustainability measures are also on the rise.

8.6 Common Financing Sources and Typical Structures

Typically, project finance is bond, bond/bank or bank only depending on the project and the term of the financing combined with an infusion of equity. Currently, there are various government programmes providing financing or grants for certain type of projects, often clean-energy based or based on sales outside of Canada, at the provincial and federal levels. In addition, the Canada Infrastructure Bank has been very active in providing financing to projects in their priority sectors being public transit, clean power, green infrastructure, broadband, and trade and transportation.

8.7 Natural Resources

Currently, other than restrictions under the Investment Canada Act, there are few limitations on the export of resources. See also the commentary in 8.4 Foreign Ownership and 8.8 Environmental, Health and Safety Laws.

8.8 Environmental, Health and Safety Laws

Canada has environmental laws at both the federal and provincial/territorial level that need to be complied with in respect to any project and its construction, operation and decommissioning. In certain cases, the laws require approval, reporting and/or monitoring. All provinces and territories have health and safety laws which are enforced by the applicable government.