46) See Drummond, supra note 2 at para 102 (Deschamps J); P Wood, Set-Off & Netting, note 18 at para 1-008; Kelly R Palmer, The Law of Set-Off in Canada (Aurora, Ont: Canada Law Book, 1993) at 1; John AM Judge and Margaret E Grottenthaler, "Legal and Equitable Set-Offs" (1991) 70:1 Can Bar Rev 91 at 92; Gullifer, "Flawed Assets", supra note 40 ("[i]n a loose sense, this can be said to 'secure' the repayment of the loan").
In the 2009 decision Caisse populaire Desjardins de l'Est de Drummond v Canada, (2) Rothstein J, on behalf of a majority of the Supreme Court of Canada (SCC), acknowledged, by extension, (3) that a transaction incorporating or prominently featuring a right of set-off may create a security interest under the Personal Property Security Act (4) ("PPSA").
Does it spell disaster for the set-off claimant under the PPSA priority structure, as commonly intimated by bank industry representatives in the aftermath of Drummond?
Relative comfort in this knowledge is important for any depository institution, like a bank or credit union, that regularly uses set-off as part of its lending and realization strategy.
Of the third variety, account combination--the implied contractual right of a depository bank to set off a current customer debt balance against a reciprocal deposit account balance--is introduced as a contractual set-off prototype, and becomes a key focus of the analytical exercise undertaken in Part IV.
Before divining an answer to the threshold question, I must furnish a brief synopsis of the conceptualization of set-off and its basic doctrinal framework.
Rather, the analysis in Lauth was applied correctly and dealt with the limited analysis of set-offs.
The interplay between apportionment of fault and the set-off analysis in multiple tortfeasor litigation has grown complicated and increasingly important in predicting a defendant's share of the verdict (or potential verdict in evaluating cases).
Making things more difficult, because the apportionment and set-off issues are easily confused, is the bootstrap argument that the set-off analysis supersedes an application of Fabre v.
This article will begin with a discussion of the general application of fault and set-off analysis in multiple tortfeasor cases.
81 and Fabre, a set-off was allowed for the whole of the settlement provided the claims and damages sought from the nonsettling defendants were the same as those sought from the settling defendants.
A set-off typically is allowed only where the same "damages" are claimed from the multiple defendants.