Saulnier holds four commercial fishing licences in Nova Scotia. In order to finance his fishing business, he signed a General Security Agreement ("GSA") with a bank, as well as a guarantee for the debts of his company. The GSAs gave the bank a security interest in "all ... present and after acquired personal property including ... Intangibles ... and in all proceeds and renewals thereof". In 2004, the fishing business faltered and Saulnier made an assignment in bankruptcy. The following year, the receiver and the trustee in bankruptcy signed an agreement to sell the four licences and other assets to a third party for $630,000, but Saulnier refused to sign the necessary documents. The trustee in bankruptcy and the bank brought an application for declaratory relief. Saulnier claimed that the commercial fishing licences did not constitute "property" available to a trustee under the federal Bankruptcy and Insolvency Act, or to a creditor who has registered a GSA under the Nova Scotia Personal Property Security Act.
- Do commercial fishing licences constitute “property” under the Bankruptcy and Insolvency Act and Personal Property Security Act?
A fishing license gives the holder exclusive right to fishery and a proprietary right in both the fish harvested and the resulting earnings which is directly analogous to profit à prendre, which is undeniably a property right - they are current commercial realities. The license serves as precondition for unlocking the appellant's other marine assets; since the value of the appellant's other business equipment is conditional upon acquisition of a fishing license, it follows that the trustee was entitled to require Saulnier to transfer his fishing licenses to a third party purchaser
Having control over how something can be used is an important factor in deciding whether or not the thing at issue is indeed private property.