True Sale Considerations
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In Canada, as in the U.S., there is a risk that a court may re-characterize a securitization of receivables as a secured loan transaction rather than a sale transaction. In order to mitigate this risk, market participants must be careful to structure their securitization transactions in a manner that respects the principles of a “true sale”.
Unfortunately, there is very limited jurisprudence in Canada on what constitutes a “true sale”. In Metropolitan Toronto Police Widows and Orphans Fund et al vs. Telus Communications Inc.  O.J. No. 128. (“Telus”) case, which is the leading Canadian decision on the matter, the court suggested that the following factors are indicative of a sale rather than a secured loan: (i) the intention of the parties, (ii) the transfer of the risk of ownership, (iii) the assets sold are identifiable, (iv) the purchase price is determinable with certainty, (v) the right to retain surplus collections, (vi) the extent of any right of redemption, and (vii) the responsibility for collection of accounts.
Most of the factors articulated in the Telus case are consistent with the factors set forth in U.S. cases, and accordingly, Canadian securitization transactions resemble U.S. securitization transactions to a large degree. However, the first factor – the intention of the parties – does lead to one key difference between Canadian and U.S. securitization transactions. Specifically, to ensure that the intention of the parties is clear, Canadian securitization transactions typically do not include a “back-up security interest” provision in the transfer agreements, which stems from a concern that this provision could jeopardize the intended characterization of the transaction as a sale.
It is not necessary for a transaction to satisfy all of the factors set forth above in order to be characterized as a sale transaction, although the presence of a unilateral repurchase right in favour of the seller of the receivables is often considered to be determinative of a secured loan, rather than a sale.
可惜，加拿大关于"真实销售"法律认定的判例非常有限。在Metropolitan Toronto Police Widows and Orphans Fund et al v. Telus Communications Inc.  O.J. No. 128.案中 （以下简称“Telus案”），加拿大法院关于该问题的主要裁决，法院建议，以下因素可表示出售而非担保贷款：（i）当事人的意图、（ii）所有权风险的转移、（iii）所出售的资产是可识别的、（iv）购买价格是可以确定的、（v）盈余收款的保留权、（vi）任何赎回权的程度、以及（vii）收账的责任。
Telus案中阐述的大部分因素与美国案例中提出的因素一致。因此，加拿大证券化交易在很大程度上类似于与美国证券化交易。然而，第一个因素 – 当事人的意图 -导致了加拿大和美国证券化交易之间的一个关键区别。具体来说，为确保各方的意图明确，加拿大证券化交易通常不会在转让协议中包含“备用担保权益”条款，这是因为担心这一条款可能危及将交易定性为出售的意图。