ARTICLE
27 December 2024

The Financial Protection For Fresh Fruit And Vegetable Farmers Act – A New Trust Mechanism In The Produce Industry And Its Implications For Lending

MT
Miller Thomson LLP

Contributor

Miller Thomson LLP (“Miller Thomson”) is a national business law firm with approximately 500 lawyers across 5 provinces in Canada. The firm offers a full range of services in litigation and disputes, and provides business law expertise in mergers and acquisitions, corporate finance and securities, financial services, tax, restructuring and insolvency, trade, real estate, labour and employment as well as a host of other specialty areas. Clients rely on Miller Thomson lawyers to provide practical advice and exceptional value. Miller Thomson offices are located in Vancouver, Calgary, Edmonton, Regina, Saskatoon, London, Waterloo Region, Toronto, Vaughan and Montréal. For more information, visit millerthomson.com. Follow us on X and LinkedIn to read our insights on the latest legal and business developments.
In July 2023, we published a newsletter detailing proposed legislative changes affecting suppliers of agricultural products and lenders working with borrowers in the agricultural supply chain.
Canada Insolvency/Bankruptcy/Re-Structuring

In July 2023, we published a newsletter detailing proposed legislative changes affecting suppliers of agricultural products and lenders working with borrowers in the agricultural supply chain. On December 12, 2024, these changes became law with the enactment of Canada's Bill C-280, officially titled the Financial Protection for Fresh Fruit and Vegetable Farmers Act (the "Financial Protection Act").

The Financial Protection Act introduces significant protections for suppliers of perishable food items by amending the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act, namely by:

  1. establishing a superpriority deemed trust in favor of suppliers to secure payment for perishable products supplied to a purchaser in cases of insolvency, receivership, or a court-approved compromise or arrangement; and
  2. broadening the definitions of "perishable fruits or vegetables" to include repackaged or processed goods, provided the nature of the items remains unchanged, and of "proceeds of sale" to encompass proceeds from the sale of perishable goods, whether such proceeds are held in a separate account or mixed with other funds, thus extending the scope of protection to receivables as well.

Under the new framework, "perishable fruits or vegetables" and "proceeds of sale" are deemed to be held in trust by the purchaser for the supplier when the supplier includes a notice in the invoice, or gives notice within 30 days of the purchaser receiving the goods, informing the purchaser of their intent to claim beneficial ownership in case of bankruptcy or receivership, the purchaser has 30 days or less to pay the full balance owed, and the purchaser, trustee, or receiver fails to pay the balance when due according to the invoice.

For lenders, the introduction of this superpriority deemed trust represents a significant shift in risk when providing financing to businesses in the agricultural or produce sectors. By granting suppliers a higher-ranking claim on the same inventory or proceeds, the trust ensures that suppliers are paid before secured lenders in the event of borrower default. This reduces the value of the lender's collateral and limits their ability to extend financing, ultimately limiting access to credit essential for business operations within the broader perishable goods supply chain and creating more uncertainty in extending such credit.

In short, these changes will impact loan structuring and risk assessments for companies within the agricultural supply chain, as well as for lenders seeking to engage with them. Lenders may respond by tightening credit terms, increasing interest rates, or reducing loan availability to account for the heightened risk. Ultimately, while the Financial Protection Act strengthens the financial security of fresh produce suppliers by securing their claims in insolvency scenarios, it also presents new challenges for lenders, who may adjust their credit terms in response.

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.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More