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The Rural Voice, 1995-06, Page 16CANADIAN CO-OPERATIVE WOOL GROWERS LIMITED Now Available ADVANCE PAYMENTS 600 to 800 per pound Skirted Fleeces Well -Packed Sacks For more information contact: WI NGHAM WOOL DEPOT John Farrell R.R. 2, Wingham, Ontario Phone/Fax 519-357-1058 INSURANCE Farms & Rural Property Specialists Percy Morris Insurance Brokers Ltd. Serving the community for over thirty years 899 3rd Ave. E. Owen Sound 519-376-2666 12 THE RURAL VOICE Agrilaw What 'on demand' means What does your promise to pay your bank "on demand" mean? Is your bank required to give you time to raise the money? Is your bank obliged to continue to honour cheques drawn on your operating line while you arrange for replacement financing? For the farmer trying to harvest a crop or feed livestock, these questions are all of vital concern in the face of a demand for payment by the bank. Without some period of time following the demand to arrange financing, and without a line of credit to cover current expenses in the interim, the farmer faces disaster. Since most, if not all, of the farm's assets will have been pledged to the bank for security, the farmer cannot continue to operate the farm without the bank's support during the period required to raise the funds to pay out the bank, It is clear that the bank, having made demand, cannot proceed to realize upon its security without providing the debt- or with a reasonable time to meet the demand. The amount of time which is reasonable in any particular case will depend upon a number of factors including the amount of the loan, the risk to the bank of losing the security, the length of the relationship between the farmer and the bank, the character and reputation of the farmer, the potential ability of the farmer to raise the money required in a short period, and, the circumstances surrounding the demand for payment. For example, in a case decided by the Ontario Court of Appeal, Kavcar Investments Ltd. v. Aetna Financial Services Ltd., a hard- ware company had provided a demand debenture to the finance company from whom it had obtained financing. Simultaneously with the making of the demand for payment, the finance com- pany appointed a receiver who took possession of the assets of the hardware company approximately three hours later. However, the finance company did permit the hardware company a period of six weeks to discharge its indebtedness before proceeding with a sale of the hardware company's assets. In finding the finance company liable for the damages suffered by the hardware company resulting from the precipitous termination of its business, the court stated: "... The law in Canada at the present time requires that a debtor, following a proper demand for pay- ment, must be allowed a reasonable time to raise the necessary funds to satisfy the demand. What consti- tutes reasonable time will depend upon the circumstances, but will generally be of very short duration. In addition, it is clear ... that the debtor need not ask for a reasonable time to pay. Reasonable time must be given by the creditor, whether or not asked for by the debtor." Thus, apart from the notice require- ments under the Farm Debt Review Act, a bank intending to realize upon security has a legal obligation to provide the farmer with a reasonable period of time to satisfy its demand for payment. Whether the bank is required to continue to extend its credit facilities to the farmer during this period depends upon whether the farmer's loan is still within its margin requirements or, even if not, whether the bank has developed a practice of allowing the farmer to operate his account in overdraft beyond the normal credit limits. Provided the loan is within the margin requirements, or any overdraft is within the limits which the bank has permitted, the bank has a legal obligation to continue to finance the farmer for a reasonable time until other financing can be arranged. In another Ontario case, Thermo - King Corp. v. The Provincial Bank of Canada, the bank had permitted the plaintiff company to maintain an over- draft in its current account which varied from time to time. The bank's refusal to honour a cheque drawn by Thermo - King on its account resulted in Thermo - King losing the benefit of a contract with its supplier. The court found that, had the bank honoured the cheque, the overdraft created in the account would have been within the overdraft limits which the bank had permitted during the course of its dealings with Thermo - King. As a result, the court held that the bank had no right to refuse to honour Thermo -King's cheque and the bank was liable for the damages suffered by Thermo -King. On the other hand, in the absence of an express agreement or an agreement which can be inferred from the course of business, the bank is not required to