Remote working is no longer a foreign concept. AI is on the rise. Business transactions are being closed on cell phones rather than in boardrooms. The commercial world is having to adapt to growing demands for convenience and mobility in business dealings; one such response is the uptick in the use of digital signatures in the years since the COVID 19 pandemic. Some legislators have been quick to respond, others have not – resulting in ambiguity and potential inconsistencies in approach. What is apparent though is that this topic is at the forefront of lending lawyers’ minds, as the relevant players look to balance the desire for accessibility and ease, with the needs of creditors to maintain the legal protections afforded to them.
Legislative structure
With the introduction of tools like Docusign, a heavy paper transaction can be closed with a click of a button – anytime, anywhere. Time is saved and headaches are avoided without the cumbersome coordination of multi-party signatories. In addition, corporate legislation in certain Canada jurisdictions allows share/unit certificates (“security certificates”) to be signed electronically, subject of course, to each company’s own governing documents which may prohibit this.[1] It is therefore not surprising to see more and more companies issuing security certificates that have been signed electronically. Where we see a hiccup, however, is time saved upfront on electronic signing may not serve you well if you are looking to obtain secured lending down the road.
As security for a commercial loan, a secured creditor may require a pledge of securities as part of its collateral package. To ensure priority and perfection in those pledged securities to the highest degree, the various provincial securities transfer acts set out the means in which the secured creditor can obtain perfection by control over those security certificates. Physical possession of the security certificates (together with an effective endorsement) is often the simplest way for a secured lender to perfect their interest in pledged securities.[2] Where the waters get muddied is whether possession of a security certificate signed electronically (in compliance with the applicable corporate legislation) satisfies the first requirement – physical possession. If a certificated security is simply defined to be a security represented by a certificate, and the electronically signed certificate is valid under the relevant corporate statute, would taking possession of a printed version of such certificate meet this requirement? It’s an interesting proposition we’ve started to see pop up on lending transactions, particularly where closing timing is a factor and the relevant signatory is not readily available.
What’s the concern?
Setting aside the overarching potential concern of relying on statutory interpretation for some of the foregoing (as opposed to express legislative permission), the underlying intent behind obtaining physical possession is to evidence your control over the certificate. The possibility of a person (let’s call them a fraudster) printing additional electronically signed security certificates is not eradicated by a wet-ink signed security certificate, as it is also possible for a person to print and sign additional security certificates in pen. The risk is apparent in either instance, and is more of an argument of fraud rather than perfection. With that said, the risk of fraud may be mitigated with a wet-ink signature given the fraudster would likely be the individual signatory rather than any person with access to the signed PDF and a printer.
Where is the market moving?
We are seeing market hesitancy in accepting electronically signed security certificates as satisfying the requirement of physical possession for “perfection by control.” Is the statutory interpretation argument sound? Likely, yes. Will we see a market shift to accepting electronically signed certificates in support of pledges in secured lending without express legislative direction? Likely, no.
For now, while discussions continue and legislators respond, companies should consider their potential future financing needs and, where possible, execute their security certificates in wet-ink. Lending transactions are often driven by a project or purchase, where timing is critical. To avoid last minute administrative steps (such as cancelling and re-issuing security certificates in wet ink, or potentially other creative solutions that can be time consuming), its better to stay ahead of the game.
Have questions about perfecting security in the digital age? Our Banking and Financial Services Team is here to help. Contact us to spark clarity and compliance.
[1] The Business Corporations Act (Saskatchewan) and the Business Corporations Act (Quebec) expressly permit the electronic execution of security certificates [Business Corporations Regulations, 2022, Sask Reg 91/2022, s 11-9 and The Electronic Information and Documents Act, 2000; Business Corporations Act CQLR, c S-31.1, s 62]. The Canada Business Corporations Act, the Business Corporations Act (Ontario) and the Business Corporations Act (Alberta), for example, require security certificates to be “printed or otherwise mechanically reproduced ”, which in practice has been statutorily interpreted to be permissive of electronic signature. Electronic signature of security certificates under the Business Corporations Act (British Columbia) is not permitted as the act provides that “a share certificate must be signed manually” [Business Corporation Act (British Columbia), SBC 2002, c 57, s 110(1)].
[2] By way of illustration, the Personal Property Security Act (Ontario) and the Minister’s Order thereunder provides that a secured creditor has control of a certificated security if the secured creditor has control in the manner provided under section 23 of the Securities Transfer Act, 2006 (Ontario) (the “STA”) [STA, s 68(1)(a)]. Section 23(2) of the STA provides that “a purchaser has control of a certificated security that is in registered form if the certificated security is delivered to the purchaser and, (a) the security certificate is endorsed to the purchaser or in blank by an effective endorsement; or (b) the security certificate is registered in the name of the purchaser at the time of the original issue or registration of transfer by the issuer.”
