Canada Small Business Financing (Establishment and Operation of Capital Leasing Pilot Project) Regulations

44 (1) A lessor shall take all of the measures described in subsection 43(3) that are applicable before submitting a claim to the Minister for loss sustained as a result of a lessee’s default on a capital lease.

(2) Subject to subsection (3), a lessor shall submit a claim for loss within 36 months after the expiry of the period specified in the notice referred to in subsection 43(1).

(3) The Minister is authorized to extend the period referred to in subsection (2) if the lessor so requests before the expiry of the period.

(4) A claim for loss shall be certified by the lessor and shall be accompanied by

• (a) a copy of the capital lease, any amendments to the capital lease as a result of improvements to the equipment and other documentation substantiating the total financing amount of the capital lease;

• (b) a copy of any document in respect of the net amount received by the lessor from any disposition of the equipment under subparagraph (7)(b)(i);

• (c) a copy of a statement of account in respect of the capital lease; and

• (d) a copy of the capital lease approval and administration files held by the lessor, if requested by the Minister.

(5) A claim for loss shall include the lessor’s acknowledgement that the lessor has acted in accordance with the due diligence requirements referred to in section 19 when entering into and administering the capital lease and has taken the measures against the lessee required by subsection (1).

(6) A claim for loss shall include all documents that evidence the registration or publication of any rights or interests in respect of the capital lease.

(7) An eligible loss sustained by a lessor shall be calculated as follows:

• (a) by determining the aggregate of the following amounts, namely,

  • (i) the outstanding balance of the capital lease on the expiry of the period specified in the notice referred to in subsection 43(1),

  • (ii) the amount of interest calculated in accordance with subsection (10),

  • (iii) uncollected taxed costs for, or incidental to, any legal proceedings in respect of the capital lease, and

  • (iv) legal fees and disbursements, other than costs referred to in subparagraph (iii), and other costs incurred by the lessor for services rendered by persons other than the lessor’s employees, for the purpose of collecting the outstanding balance of the capital lease from the lessee or the guarantor or surety; and

• (b) by deducting from the aggregate amount the aggregate of the following amounts, namely,

  • (i) the greater of the residual value of the equipment set out in the registration form referred to in subsection 12(1), or the net amount received by the lessor on any sale or other disposition or on any capital lease of the equipment,

  • (ii) any other proceeds realized from the taking of any measures described in subsection 43(3), and

  • (iii) any amount paid by the lessor to a secured creditor, if the secured creditor has any security interest or rights in the equipment financed by the capital lease, and the security interest or rights rank ahead of the lessor’s security interest or rights.

(8) If a lessor enters into a new capital lease with another lessee, of equipment that was already the subject of a capital lease, the net amount received by the lessor referred to in subparagraph (7)(b)(i) shall be calculated by determining the aggregate of the following amounts, namely,

• (a) any down payment made by the lessee, and

• (b) the present value of the outstanding balance of the new capital lease, calculated in accordance with subsection (9).

(9) The present value of the outstanding balance of the new capital lease referred to in paragraph 8(b) shall be calculated at an annual imputed rate of interest and be determined by the formula

(10) The amount of interest referred to in subparagraph (7)(a)(ii) shall be calculated on the outstanding balance, taking into consideration any proceeds realized from the taking of any measures described in subsection 43(3), as follows:

• (a) in respect of the period beginning on the day of default and ending on the expiry of the period specified in the notice referred to in subsection 43(1), at the annual imputed rate of interest used to calculate the scheduled payments in respect of a capital lease;

• (b) in respect of the six-month period immediately after the period referred to in paragraph (a), at the annual imputed rate of interest used to calculate the scheduled payments in respect of a capital lease on the first day of the six-month period;

• (c) in respect of the six-month period immediately after the period referred to in paragraph (b), at a rate of interest equal to one half of the rate of interest referred to in that paragraph; and

• (d) in respect of the 24-month period immediately after the period referred to in paragraph (c), at a rate of interest of 0%.

(11) If the total financing amount of a capital lease referred to in subparagraph 12(1)(d)(i) is not equal to the total financing amount set out in the capital lease, the eligible loss calculated in accordance with subsection (7) shall be calculated on the portion of the capital lease that was registered with the Minister in accordance with these Regulations.