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At least two points relating to interest rates need to be considered when structuring Canadian securitization transactions. First, under the Interest Act (Canada), most legal agreements that contemplate the payment of interest must include an express statement of the annual interest rate. This is relevant for many legal agreements in the securitization space, as interest is often calculated on the basis of a 360-day year, rather than a 365-day year. In these agreements, it is common to include a provision that sets out a formula for converting the non-annual rate of interest into an annual rate of interest. The omission of this type of provision is significant, as the Interest Act (Canada) provides that a failure to state that the annual rate of interest means that a creditor is only entitled to charge interest at a rate of 5% per annum.

Second, under the Criminal Code (Canada), it is a criminal offence to charge "interest" at a rate exceeding 60% per annum. Interest is broadly defined under the Criminal Code (Canada) as the aggregate of all charges and expenses, whether in the form of fees, fines, penalties, commissions or other similar charges or expenses charged to the debtor. Because of the wide scope of the concept of interest, and the potential for inadvertently exceeding the maximum rate, many legal agreements in Canadian securitization transactions will include a provision stating that any contravention of the maximum rate is unintentional, and that all payments of interest in excess of the maximum rate will be refunded to the debtor, or applied to other outstanding obligations of the debtor.


在设立加拿大证券化交易时,至少需要考虑两点与利率相关的事项。 首先,根据加拿大《利息法》,大多数牵扯到利息支付的法律协议必须包含对年利率的明确声明。 这与证券化领域的许多法律协议相关,因为利息通常是以360天的年份为基础计算的,而不是以365天的年份为基础。 在这些协议中,通常会包含一项将非年利率转换为年利率的公式规定。遗漏这类规定意义重大,因为依据加拿大《利息法》,未说明年利率意味着债权人仅有权按5%的年利率收取利息。

其次,根据加拿大《刑法》以超过 60% 的年利率收取"利息"属于刑事犯罪。 加拿大《刑法》(将利息广义地定义为所有收费和开支的总和,无论是以费用、罚款、罚金、佣金或向债务人收取的其他类似收费或开支。 由于利息概念的范围很广,并且有可能无意中超过最高利率,加拿大证券化交易中的许多法律协议都会包括一项规定,陈述任何违反最高利率的行为都是无意的,并且所有超过最高利率的利息支付都将退还给债务人,或适用于债务人的其他未偿还债务。

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