Canada: The Preservation Of Lien Rights In Insolvency Proceedings

Last Updated: September 20 2005
Article by Roger Jaipargas

Most Read Contributor in Canada, September 2016

Most insolvency practitioners will likely agree that in the context of receivership or bankruptcy proceedings, the issue of priorities of the interests of various creditors and stakeholders is not one that is always easily resolved. In the context of a Court-appointed receivership, there are certain "standard" provisions that will likely be found in the order appointing the receiver. The receivership order will typically provide for a general stay of proceedings as against the property of the debtor and require third parties in the possession of property of the debtor to release such property to the Court-appointed receiver. These basic provisions found in orders appointing receivers can be problematic for creditors who may have various lien claims as against the property of the debtor. This is particularly the case, where a creditor is maintaining possessory lien claims that are recognized by common law, contract and/or statute, the latter of which may arise from providing warehousing or storage services and are expressly recognized in the Repair And Storage Liens Act and the Warehouse Receipts Act.

In the receivership proceedings of HIP Interactive Inc., HIP Interactive Corp., and certain related companies (collectively, "HIP"), Justice Cameron made an order on July 11, 2005, inter alia, appointing Ernst & Young Inc. ("E & Y") as interim receiver (the "Interim Receiver") of the assets, undertaking and properties of HIP. The receivership order provided for the customary stay of proceedings and further required the property of HIP in the possession of third parties to be turned over to the Interim Receiver.

Exel Global Logistics Inc., Exel Global Logistics (Canada) Inc. and Exel Transportation Services, Inc. (collectively, "Exel"), a creditor of HIP, had provided various freight forwarding, carriage, customs brokerage, storage and logistical services to HIP prior to the date of the receivership order. As of the date the receivership order was issued, Exel was in possession of substantial property belonging to HIP located at warehouses in Ontario and New York and in various containers located in Ontario, California, France and Hong Kong.

At the time the receivership order was made, Exel asserted various lien claims as against the HIP property, including common law lien rights for freight/carriage services, contractual lien rights and statutory lien rights under the Repair and Storage Liens Act and the Warehouse Receipts Act. The ability of Exel to retain and subsequently dispose of the HIP property on account of the HIP indebtedness to Exel, came into direct conflict with the provisions of the receivership order requiring the Court-appointed Interim Receiver to gather the property of the debtors.

On August 3, 2005, Exel brought a motion to the Ontario Superior Court of Justice (Commercial List) for an order preserving its various lien rights and interests in any property that would be released by Exel to the Interim Receiver. Central to the relief sought from the Court was a recognition by the Court that Exel would be deemed to remain in possession of the HIP property notwithstanding its release of such property to the Interim Receiver. The order sought also provided for maintaining any and all lien rights Exel may have against the property which was located in the United States and in other jurisdictions. This was particularly important on account of the fact that some of the HIP property was located in California, France and Hong Kong.

Justice Farley made an order granting the relief sought by Exel, which preserved the various lien rights of Exel, including all possessory lien rights to which Exel was entitled to maintain as against the HIP property, notwithstanding the release of such property to the Interim Receiver. The order further provided that the Interim Receiver would be required to segregate the proceeds derived from the sale of any property released by Exel to the Interim Receiver in a separate trust account and not to take any steps to distribute such funds pending a determination as to priority to such funds as between Exel, Congress Financial Corporation (Canada), or any other third party asserting a priority claim to the proceeds of sale of the released property. In order to address the Interim Receiver’s concerns that certain of the property released by Exel to the Interim Receiver may be subject to a sale(s) by the Interim Receiver for which vesting orders would not be sought, Justice Farley’s Order provided that the claim of Exel would attach to the proceeds of sale of the released HIP property, as opposed to the specific property released.

The approach taken by Justice Farley in granting the order preserving the various lien claims of Exel, pending a release of the HIP property to the Interim Receiver, represents a creative solution which facilitated the Interim Receiver’s need to gather the property while maintaining the status quo as far as Exel’s various lien rights. The order made by Justice Farley in the HIP receivership proceedings represents a flexible and common sense approach to the resolution of issues that are likely to arise in the context of insolvency proceedings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.