Saturday, 19 October 2013

The Disturbing Surprise in Canada for U.S. Creditors

With the economic climate here in the U.S., many companies have expanded to Canada and now carry Canadian receivables. Like the U.S. states, different provinces and territories have different time limits on when a creditor may sue.

We received an email regarding a disturbing trend from our Canadian agent and if you have receivables in Canada, it is worth a read. We have taken excerpts from the email and edited where applicable.

The Disturbing Trend

Being one of the largest commercial collection agency operations in Canada, we receive a LOT of large balance commercial accounts forwarded to us from U.S. collection agencies and miscellaneous U.S. Clients.  Recently, one of our seasoned collectors drew our attention to a disturbing trend that keeps resurfacing and is surprising U.S. creditors.

He showed us two large balance commercial accounts against limited debtor companies in the provinces of Ontario and British Columbia.  In both cases our instructions were to secure immediate payment or sue. Both accounts were two and a half years old and the Client was frustrated with the stalling. After a bit of research and a few phone calls it was determined that both debtor companies were out of business. However, the Client had personal guarantees on both accounts.

When confronted with their personal guarantees, it became obvious that all the guarantors on both accounts had absolutely no intention of paying voluntarily. Research indicated that the guarantors easily had the personal assets and funds to pay. Like the U.S., commercial debtors know the legal system more than retail debtors and are quick to exploit a loophole.

Here in Canada, legal costs are far lower up here than in the US. Also, there are far fewer legal stall mechanisms for debtors. In addition, there are some fantastic legal tools available in Canada.

The Surprise

The last payment on the Ontario account was just over 2 years prior. However, the province of Ontario has a 2 year limit on commencing legal action. Our Client was stunned.   What this means, is you can report the debt to a credit bureau, which will stay on the debtor’s credit report for 6 years. BUT, if you haven’t commenced legal action within 2 years from the date of last payment then you no longer have any legal recourse. The debtors stalled the Client past the 2 year limit and without litigation, they would never pay. 

Fortunately for our Client, the British Columbia account didn’t have the same problem as Ontario. A British Columbia 2 year limit for legal action became effective on June 1, 2013. Debts incurred after June 1 are subject to the 2 year limit. However, the Client account was grandfathered or prior to June 1, so the statute of limitations was still 6 years.

The Good and the Bad

The Ontario account was a write off, but the results on the British Columbia account were successful. We ended up recovering our Client’s receivable, after we pre-garnisheed half the balance from the guarantor’s bank accounts and the guarantors decided to pay in full. Like I mentioned above, Canada has some very effective legal maneuvers when you know what you are doing.

Legal action is sometimes the best option in the case of large balance commercial accounts. However, the decision to sue must be made prior to the limits on commencing debt litigation set by the province the debtor is located in.

When it comes to debt in Canada, the province or territory where a debtor is located in determines the time period or time limit for commencing legal action. It must also be kept in mind should a guarantor live in a different province then a different time limit may apply.  

The Clock is Ticking

The best advice we can give your Clients is to be aware of provincial limitations. As a courtesy, we have included a map of the debt litigation limits across Canada. You may want to distribute this reference map to your Clients with Canadian portfolios.
Beware of the stall game. While a creditor may not know the time limits, the odds are the debtor sure does. In the case of the Ontario account mentioned above, the guarantors used every stall tactic until they knew the creditor couldn’t sue.

Creditors must be careful when dealing with the statute of limitations regarding debts at the Federal (6 Years) or Provincial Government level. These exceptions include student loans, child support, taxes and alimony. Should you have any questions please let us know.

We would like to thank PCR for their email, as this information is sure to save a lot of money for some of our Clients.

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