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1998/99 Legislative Session: 3rd Session, 36th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE JOY K. MacPHAIL

MINISTER OF FINANCE AND CORPORATE RELATIONS

BILL 91 – 1999

UNCLAIMED PROPERTY ACT

Contents

Section

Part 1 –

Interpretation

Definitions

Part 2 – Unclaimed Money Held by Government

Unclaimed money held by government

Duty of minister to make reasonable efforts to locate and notify owners

Unclaimed money database

Payment of claims

Access to information and retention of records

Special account

Part 3 – Unclaimed Property Held by Holders

Application of this Part

Duty of holders to make reasonable efforts to locate and notify owners

When property becomes unclaimed

Duties of holders of unclaimed property

Voluntary transfer of unclaimed property to the minister

After time lapse unclaimed property may be treated as income of holder

Joint holders

Minister may request information

Offences

Part 4 – General

Power to make regulations

Review of Act

19-31

Consequential Amendments

Repeal

Commencement

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the

Province of British Columbia, enacts as follows:

Part 1 –

Interpretation

Definitions

1 In this Act:

"holder" means

(

a) a corporation, partnership, sole proprietorship, association,

society, fraternal or mutual benefit organization or other entity, whether or not operated

for profit, that holds property on behalf of an owner, or

(

b) an individual who holds property on behalf of an owner and who

is one of a prescribed class of individuals,

and includes a government body as defined in the Financial

Administration Act , but does not include the government or the Public Trustee;

"owner" means,

(

a) in relation to money to which

Part 2 applies, a person who has

a legal or equitable interest in all or part of the money,

(

b) in relation to property to which

Part 3 applies, other than a

money order or similar instrument, a person who has a legal or equitable interest in all

or part of the property, and

(

c) in relation to a money order or similar instrument to which

Part 3 applies, the purchaser of the instrument;

"property" means

(

a) money received as a deposit, other than by a savings

institution, but only if there is a right to receive a cash refund of the deposit,

(

b) an amount paid in respect of a money order or similar

instrument, other than a similar instrument issued by a bank or by a company to which the Trust

and Loan Companies Act (Canada) applies,

(

c) securities and their entitlements and money deposited to make

a distribution,

(

d) the right to an amount due and payable by an insurer under the

terms of an insurance policy, including an annuity and a refund of premiums,

(

e) the right to receive an amount distributable from a trust or

custodial fund established under

(

i) a plan to provide education, health, welfare, vacation,

severance, retirement or death benefits,

(ii) a share purchase, profit sharing, employee savings or

supplemental employment insurance plan, or

(iii) a similar benefit plan,

(

f) the right to an amount distributable under a trust or

fiduciary arrangement of any kind not referred to in paragraph (e),

(

g) the right to a refund of an amount paid in respect of an

unused airline ticket or other transportation ticket, or

(

h) any other personal property that is not a chattel or a

mortgage and is designated by regulation for the purposes of this definition,

but does not include money held by the government or property held

in trust by a member of the Law Society of British Columbia;

"public body" has the same meaning as in the Freedom

of Information and Protection of Privacy Act ;

"security" has the same meaning as in the

Interpretation

Act and includes equity shares in a credit union, but only if those shares are listed

or posted on an exchange recognized by the British Columbia Securities Commission;

"special account" means the Unclaimed Property

Special Account established under

section 7;

"unclaimed money deposit" means money that

(

a) has become an unclaimed money deposit under

section 2,

(

b) has been transferred to the minister under

section 12, or

(

c) has been deemed under the Unclaimed Money Act ,

R.S.B.C 1996, c. 467, or under any other enactment to be an unclaimed money

deposit;

"unclaimed property" means property that has

become unclaimed under

section 10.

Part 2 – Unclaimed Money Held by Government

Unclaimed money held by government

(1) All money that is held by the government on behalf of

an owner becomes an unclaimed money deposit if the owner does not claim the money within

the applicable period prescribed for the purposes of this section.

(2) If subsection (1) is inconsistent or in conflict with a

provision of another enactment, the provision of the other enactment prevails.

Duty of minister to make reasonable efforts to

locate and notify owners

3 If the amount of an unclaimed money deposit meets or

exceeds the amount prescribed for the purposes of this section, the minister must make

reasonable efforts to locate the owner and to notify the owner about the money.

Unclaimed money database

4 The minister must

(

a) maintain an electronic or other database of all unclaimed

money deposits,

(

b) include in the electronic or other database the prescribed

particulars for each unclaimed money deposit, and

(

c) make the electronic or other database available to the public,

subject to any restrictions imposed by regulation for the purpose of protecting the

privacy of owners.

Payment of claims

(1) If satisfied that a person is the owner of all or

part of the money that became an unclaimed money deposit, the minister must pay out of the

special account to the owner an amount equal to that deposit or that part of the deposit,

as the case may be.

(2) No interest or other earning accrues or is payable to an owner

in respect of the period after money becomes an unclaimed money deposit.

(3) A payment made under this

section to an owner discharges the

government from liability to the owner in respect of the money that became the unclaimed

money deposit, but only to the extent of the payment.

(4) The minister may delegate any of the minister's functions

under this

section to an employee of the ministry.

Access to information and retention of records

(1) The minister has the right to any information that

(

a) is in the custody or control of a public body, and

(

b) may assist in locating a person for the purposes of this Act.

(2) A public body that has custody or control of information to

which the minister is entitled under subsection (1) must disclose that information to the

minister on request.

(3) A public body must meet the standards, set by regulation,

respecting

(

a) the collection and recording of information concerning any

money that becomes an unclaimed money deposit, and

(

b) the retention of records containing that information.

Special account

(1) An account, called the Unclaimed Property Special

Account, is established as a special account of the consolidated revenue fund.

(2) The special account consists of

(

a) an opening balance of a prescribed amount, and

(

b) money paid into the account under subsections (3) and (6).

(3) The following must be paid into the special account:

(

a) all money that, after the coming into force of this section,

becomes or is deemed to be an unclaimed money deposit;

(

b) all money transferred to the minister under

section 12 and all

fees paid under that section.

(4) In addition to money paid out under

section 5, all costs

associated with the administration of this Act and the regulations may be paid out of the

special account.

(5) At the beginning of each fiscal year of the government, the

balance in the special account equals the prescribed amount of the opening balance.

(6) If, at any time, the amount in the special account is

insufficient to meet the payments to be made under this section, the minister may increase

the amount in the special account to a sum that, in the minister's opinion, is sufficient

to allow those payments to be made.

Part 3 – Unclaimed Property Held by Holders

Application of this

Part

8 This Part applies to a holder of property

(

a) if, according to the holder's records, the last known address

of the owner is in British Columbia and the transaction from which the property arose was

entered into or arranged after the coming into force of this section, or

(

b) if the owner's address is unknown and the transaction from

which the property arose was entered into or arranged in British Columbia after the coming

into force of this section.

Duty of holders to make reasonable efforts to

locate and notify owners

(1) A holder of property must make reasonable efforts to

locate the owner and to notify the owner about the property if

(

a) the prescribed circumstances exist, and

(

b) on the applicable date prescribed by regulation, the

value of the property meets or exceeds the prescribed amount.

(2) The reasonable efforts required under subsection (1) must be

made within 6 months after the applicable date referred to in subsection (1) of this

section.

When property becomes unclaimed

(1) If, despite the holder's reasonable efforts, the

owner is not located and notified within 12 months after the applicable date referred to

section 9 (1) (b), the property becomes unclaimed.

(2) If the prescribed circumstances exist but the value of

property held by a holder does not on the applicable date prescribed by regulation meet or

exceed the prescribed amount, the property becomes unclaimed on that date.

Duties of holders of unclaimed property

11 A holder of unclaimed property must do all of the

following:

(

a) maintain an electronic or other database of all unclaimed

property held by the holder;

(

b) include in the electronic or other database the prescribed

particulars for each item of unclaimed property;

(

c) make the electronic or other database available to the public,

subject to any restrictions imposed by regulation for the purpose of protecting the

privacy of owners;

(

d) meet the standards, set by regulation, respecting

(

i) the collection and recording of information concerning the

unclaimed property, and

(ii) the retention of records containing that information;

(

e) meet the standards, set by regulation, respecting

(

i) the processing of claims, and

(ii) the management or control of the unclaimed property.

Voluntary transfer of unclaimed property to the

minister

(1) A holder may transfer unclaimed property to the

minister if the following conditions are met:

(

a) that property is money;

(

b) the holder provides the minister with any information relating

to the property that may reasonably be requested by the minister;

(

c) the minister consents to the transfer.

(2) The minister's receipt for unclaimed property transferred by a

holder under subsection (1) is an effective discharge to the holder for that property.

After time lapse unclaimed property may be

treated as income of holder

13 Without limiting the owner's rights, the holder may

treat unclaimed property as income of the holder if

(

a) that property is money,

(

b) the property is not claimed by the owner within the prescribed

time period after the date on which under

section 10 it became unclaimed property, and

(

c) the holder is not prohibited by law from treating the property

as income.

Joint holders

14 If property is held jointly by 2 or more holders,

(

a) the performance, in relation to the property, by any one of

them of a duty imposed under this Act on a holder suffices for all of them, and

(

b) the exercise, in relation to the property, by any one of them

of an option given under this Act to a holder binds all of them.

Minister may request information

(1) For the purposes of this Act, the minister may

request a holder of property to do either or both of the following in respect of the

property:

(

a) submit to the minister records in the holder's custody or

control;

(

b) provide information to the minister, within the time or at the

intervals specified in the request.

(2) A holder who receives a request under subsection (1) must

comply with the request.

Offences

(1) A holder who does any of the following commits an

offence:

(

a) contravenes

section 9 or 15 (2);

(

b) fails to maintain a record required under this Act or the

regulations;

(

c) in a record required or submitted, or in information provided,

under this Act or the regulations, makes a statement that

(

i) is false or misleading with respect to a material particular,

(ii) omits to state a material fact, the omission of which makes

the statement false or misleading.

(2) A person is not guilty of an offence under subsection (1) (

c) if the person did not know that the statement was false or misleading and, with the

exercise of reasonable diligence, could not have known that the statement was false or

misleading.

(3) If a corporation commits an offence under this section, an

employee, officer, director or agent of the corporation who authorizes, permits or

acquiesces in the commission of the offence commits an offence.

(4) Subsection (3) applies whether or not the corporation is

prosecuted for the offence.

(5) Section 5 of the Offence Act does not apply to this Act

or the regulations.

Part 4 – General

Power to make regulations

(1) The Lieutenant Governor in Council may make

regulations referred to in

section 41 of the

Interpretation Act .

(2) Without limiting subsection (1), the Lieutenant Governor in

Council may make regulations as follows:

(

a) prescribing classes of individuals for the purposes of

paragraph (

b) of the definition of "holder" in

section 1;

(

b) designating personal property, other than a chattel or a

mortgage, for the purposes of paragraph (

h) of the definition of "property" in

section 1;

(

c) prescribing time periods for the purposes of sections 2 (1)

and 13 (b);

(

d) prescribing amounts for the purposes of sections 3, 7 (2) (

a) and 9 (1) (b);

(

e) governing rules for determining if an amount constitutes one

or more unclaimed money deposits for the purpose of

section 3 and for determining what

constitutes one item of property for the purpose of

section 9;

(

f) prescribing the particulars that, under sections 4 (

b) and 11

(b), are to be included in databases, and governing restrictions on access to those

databases for the purpose of protecting the privacy of owners;

(

g) governing the standards to be met under

section 6 (3) by

public bodies and under

section 11 (

d) by holders of unclaimed property;

(

h) exempting classes of holders from the application of any or

all of the provisions of

Part 3 and the regulations, and specifying the conditions of

exemption;

(

i) prescribing circumstances and dates for the purposes of

sections 9 and 10;

(

j) defining for the purposes of

section 9 what constitutes

reasonable efforts to locate and notify owners, and requiring holders to establish and

make available to the public written policies, procedures and performance goals with

respect to those efforts;

(

k) requiring holders to make information respecting unclaimed

property available to the public;

(

l) authorizing holders to transfer to the minister any of their

duties under

section 11 (

c) respecting the unclaimed property database and specifying the

conditions and effect of the transfer;

(

m) governing the standards to be met under

section 11 (

e) by

holders of unclaimed property;

(

n) prescribing fees payable to the minister in respect of

transfers of unclaimed property under

section 12 (1);

(

o) limiting the types and amount of fees that holders of

unclaimed property may charge for locating and notifying owners and for processing claims;

(

p) defining any word or expression used but not defined in this

Act.

(3) A regulation under this Act may provide differently for

different

(

a) classes of money deposits or unclaimed money deposits,

(

b) classes of property or unclaimed property, or

(

c) holders or classes of holders.

Review of Act

18 After January 1 and before July 1 of the fifth year

following the year in which this

section comes into force, the minister must appoint a

committee to review the effectiveness of this Act and the regulations.

Consequential Amendments

Company Act

Section 105 of the Company Act, R.S.B.C. 1996, c. 62, is repealed.

Section 294 (2) is amended by striking out everything after

"unclaimed money deposits" and substituting "under the

Unclaimed Property Act ."

Credit Union Incorporation Act

Section 35 (4) of the Credit Union Incorporation Act, R.S.B.C. 1996,

c. 82, is amended by striking out everything after "unclaimed money

deposits" and substituting "under the Unclaimed Property Act " .

Debt Collection Act

Section 12 (1) (b) (ii) of the Debt Collection Act, R.S.B.C.

1996, c. 92, is amended by striking out "under the Unclaimed Money

Act; " and substituting "under the Unclaimed Property Act " .

Employment Standards Act

Section 19 of the Employment Standards Act, R.S.B.C. 1996, c. 113, is amended

by adding the following subsections:

(4) If the director cannot locate an employee within one year

after receiving the employee's wages under this section, the director must transfer the

wages to the Minister of Finance and Corporate Relations in accordance with the transfer

schedule set by that minister.

(5) Money transferred to the Minister of Finance and Corporate

Relations under subsection (4) is deemed to be an unclaimed money deposit under

the Unclaimed Property Act .

Financial Institutions Act

Section 37 (4) of the Financial Institutions Act, R.S.B.C.

1996, c. 141, is amended by striking out "must be treated as unclaimed

money deposits under the Unclaimed Money Act " and substituting

"is deemed to be unclaimed money deposits under the Unclaimed Property Act " .

Section 85 (5) is repealed and the following substituted:

(5) Money paid to the Minister of Finance and Corporate

Relations under subsection (4) is deemed to be an unclaimed money deposit under

the Unclaimed Property Act .

Insurance Act

Section 71 of the Insurance Act, R.S.B.C. 1996, c. 226, is repealed and

the following substituted:

Payment into court

(1) If an insurer admits liability for insurance money

and it appears to the insurer that

(

a) there are adverse claimants,

(

b) there is no person who is capable of giving and authorized to

give a valid discharge for the insurance money and who is willing to do so, or

(

c) the insurance money has become unclaimed property

under the Unclaimed Property Act ,

the insurer may, without notice to any person but subject to

subsection (2), apply to the court for an order for payment of the money into court.

(2) An application to the court under this

section may not be made

until

(

a) in a case to which subsection (1) (

a) or (

b) applies, 30 days

from the date of the happening of the event on which the insurance money became payable,

(

b) in a case to which subsection (1) (

c) applies, 30

days after the insurance money became unclaimed property under the Unclaimed

Property Act .

(3) On application under this section, the court may, on notice,

if any, as it thinks necessary, make an order for payment of the insurance money into

court.

(4) On payment into court of insurance money referred to in

subsection (1) (c),

Part 3 of the Unclaimed Property Act ceases to apply to that

money.

(5) A payment made under an order under this

section discharges

the insurer to the extent of the payment.

Section 110 is amended

(

a) by repealing subsection (1) and substituting the following subsections:

(1) If an insurer admits liability for insurance money or any part

of it and it appears to the insurer that

(

a) there are adverse claimants,

(

b) there is no person who is capable of giving and authorized to

give a valid discharge for the insurance money and who is willing to do so, or

(

c) the insurance money has become unclaimed property

under the Unclaimed Property Act ,

the insurer may, without notice to any person, apply to the court

for an order for payment of the money into court.

(1.1) On application under this section, the court may, on notice,

if any, as it thinks necessary, make an order for payment of the insurance money into

court.

(1.2) On payment into court of insurance money referred to in

subsection (1) (c),

Part 3 of the Unclaimed Property Act ceases to apply to that

money. , and

(

b) in subsections (2) and (3) by striking out "under subsection

(1)" and substituting "under this section" .

Legal Profession Act

Section 34 of the Legal Profession Act, S.B.C. 1998, c. 9, is amended

(

a) by repealing subsections (7) and (8) and substituting the following:

(7) If the money is not paid out under subsection (6) within 5

years after its receipt by the society under subsection (1), the society must pay the

money, excluding any interest retained under subsection (4), to the foundation for its

purposes, but subsections (5) and (6) continue to apply as though the money had not been

paid to the foundation.

(8) The foundation must indemnify the society for any claims paid

under subsection (6) in respect of money received from the society under subsection (7),

including interest paid by the society under subsection (6) for the period when the money

was held by the foundation. , and

(

b) by repealing subsection (12).

Municipal Act

Section 416 (6) of the Municipal Act, R.S.B.C. 1996, c. 323, is

repealed and the following substituted:

(6) If the surplus remains unclaimed 3 months after publication

under subsection (5), it must be transferred to the Minister of Finance and Corporate

Relations.

(7) Money transferred under subsection (6) is deemed to

be an unclaimed money deposit under the Unclaimed Property Act .

Railway Act

Section 232 of the Railway Act, R.S.B.C. 1996, c. 395, is repealed and

the following substituted:

Deposit of unclaimed money

(1) The company must transfer the following to the

Minister of Finance and Corporate Relations on the expiry of the applicable period:

(

a) any surplus of the proceeds of a sale under

section 230 (3)

that is not claimed within the 3 month period after the date of the sale;

(

b) the balance of the proceeds of a sale under

section 231 (1)

that is not claimed within the 3 month period referred to in

section 231 (2).

(2) Money transferred to the Minister of Finance and Corporate

Relations under subsection (1) is deemed to be an unclaimed money deposit under

the Unclaimed Property Act .

Real Estate Act

Section 17.2 of the Real Estate Act, R.S.B.C. 1996, c. 397, is repealed

and the following substituted:

Unclaimed money in a trust account

17.2

(1) An agent may transfer to the Minister of Finance

and Corporate Relations money in a trust account maintained by the agent, if

(

a) the money has been unclaimed for one year or more,

(

b) the identity of the person entitled to claim the money is

known and is not in dispute, and

(

c) the agent has made reasonable efforts to locate the person

entitled to claim the money and to notify that person about claiming the money, but,

despite those efforts, the money has not been claimed.

(2) Money transferred to the Minister of Finance and Corporate

Relations under subsection (1) is deemed to be an unclaimed money deposit under

the Unclaimed Property Act .

Repeal

32 The Unclaimed Money Act , R.S.B.C. 1996,

c. 467, is repealed.

Commencement

33 This Act comes into force by regulation of the

Lieutenant Governor in Council.

Explanatory Note

The purpose of this Bill is to repeal the Unclaimed Money Act and replace it

with a new Act which seeks to protect the rights of owners to be informed of any unclaimed

money held by the government, and of any unclaimed financial property held by other

organizations, on behalf of owners. The object is to reunite the owners with their money

or financial property.

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