Quincy Smith and Derek Pontin co-wrote "Supreme Court of Canada Finds Nemo in Saskatchewan" in the Canadian Association of Insolvency and Restructuring Professionals (CAIRP) Rebuilding Success magazine.
On November 5, 2010, the Supreme Court of Canada (“SCC”) provided some clarity, and ultimately a clear warning, to commercial lenders, in what was a “muddled” area of Canadian law. The Court rendered judgment in two companion cases arising out of Saskatchewan, hereafter referred to as the Innovation and Radius cases. These cases centred on the priorities of competing security interests under the Bank Act (Canada) and the Saskatchewan Personal Property Security Act (“PPSA”). In the end result, the Court relied upon the common law maxim of nemo dat quod non habet, or (roughly translated) “he who hath not, cannot give”, in finding that an unregistered and unperfected provincial security interest has priority over subsequent valid Bank Act security.
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