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1997 Legislative Session: 2nd Session, 36th Parliament

THIRD READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 16th day of July, 1997

Ian D. Izard, Law Clerk

BILL Pr 402 – 1997

THE BANK OF NOVA SCOTIA TRUST COMPANY ACT, 1997

Contents

Section

Interpretation

Purpose

Non-application

Successor Trustee

Real and Personal Property held in trust by Montreal Trust Company of Canada or Montreal Trust Company

Legal Proceedings

Rights of Third Parties

Notice

Publication of effective date

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

of British Columbia, enacts as follows:

Interpretation

1 In this Act:

"effective date" means the date on which The Bank of Nova Scotia Trust Company

completes the transaction to acquire the personal trusteeship and personal

agency business of Montreal Trust Company of Canada and Montreal Trust

Company;

"registrar" means the registrar appointed under the Land Title Act of the land title

district in which an application in respect of any registered estate or interest in

real property is made.

Purpose

2 The purpose of this Act is to provide for the transfer of the personal trusteeship and

personal agency business of Montreal Trust Company of Canada and Montreal Trust

Company to The Bank of Nova Scotia Trust Company.

Non-application

(1) This Act does not apply to

(

a) real or personal property that is owned or held by, vested in or granted to

Montreal Trust Company of Canada or Montreal Trust Company, and that

is held by Montreal Trust Company of Canada or Montreal Trust Company,

as the case may be, exclusively for its own use and benefit, and not in trust

for or for the benefit of any other person or purpose,

(

b) real or personal property that is located outside of British Columbia and is

held by Montreal Trust Company of Canada or Montreal Trust Company

under a record or trust to which

section 4 would otherwise apply and any

power, right, immunity, privilege or right of action that may be exercised by

or against Montreal Trust Company of Canada or Montreal Trust Company,

as the case may be, under any such record or trust with respect to that

property,

(

c) trusts relating to moneys received for guaranteed investment and any real or

personal property held in trust with respect to any such guaranteed

investment of which Montreal Trust Company of Canada or Montreal Trust

Company is trustee including, without limitation, trusts with respect to any

registered home ownership savings plan, registered retirement savings plan,

retirement income fund, deferred profit sharing plan or income averaging

annuity contract, as those terms are defined in the Income Tax Act (Canada),

or other registered or unregistered deferred income or employee benefit

plan, or

(

d) any real or personal property granted to or held by or vested in Montreal

Trust Company of Canada or Montreal Trust Company under or in respect

(

i) any trust indenture or other indenture to which

section 4 would

otherwise apply in which Montreal Trust Company of Canada or

Montreal Trust Company, as the case may be, is or may be a trustee

and by virtue of which bonds, debentures or other evidence of indebtedness, warrants or rights have been or may be issued,

(ii) any record or trust to which

section 4 would otherwise apply under

which Montreal Trust Company of Canada or Montreal Trust

Company, as the case may be, acts as trustee for unitholders in respect

of any oil or gas royalty trust fund,

(iii) any record or trust to which

section 4 would otherwise apply under

which Montreal Trust Company of Canada or Montreal Trust

Company, as the case may be, acts as manager, advisor, registrar or

transfer agent, and

(iv) any record or trust to which

section 4 would otherwise apply under

which Montreal Trust Company of Canada or Montreal Trust

Company, as the case may be, acts as custodian or trustee for the

benefit of one or more persons under a plan or other arrangement

established by a corporation, partnership or other entity or person

other than a natural person.

(2) Despite subsection (1) (b),

(

a) if a British Columbia court has appointed or has the power to appoint

Montreal Trust Company of Canada or Montreal Trust Company as

personal representative of a deceased person, whether as executor, administrator or otherwise, for property located outside British Columbia, The

Bank of Nova Scotia Trust Company may, on application to that court, be

appointed as personal representative with respect to that property in place

of Montreal Trust Company of Canada or Montreal Trust Company, as the

case may be, and

(

b) if property located outside British Columbia but not referred to in

paragraph (

a) is held by Montreal Trust Company of Canada or Montreal

Trust Company under a record or trust to which

section 4 applies and if the

Supreme Court has jurisdiction under

section 31 of the Trustee Act to make

an order for the appointment of a new trustee with respect to that property,

The Bank of Nova Scotia Trust Company may, on application to the

Supreme Court, be appointed as trustee with respect to that property in place

of Montreal Trust Company of Canada or Montreal Trust Company, as the

case may be.

(3) An appointment under subsection (2) (

b) has for all purposes under the laws of

British Columbia the same effect as if made under

section 31 of the Trustee Act .

(4) Sections 6 and 7 apply to every record and trust in respect of which an

appointment is made under subsection (2).

Successor trustee

(1) Subject to

section 3, on the effective date Montreal Trust Company of Canada and

Montreal Trust Company are removed and The Bank of Nova Scotia Trust

Company is appointed as successor trustee in or in respect of every personal trust,

trust deed, trust agreement, instrument of creation, deed of appointment,

settlement, assignment, will, codicil or other testamentary record, and every

letters testamentary, letters probate, letters of administration, judgment, decree,

order, direction, pension plan, benefit plan trust, investment management

account, investment administration account, agreement, contract, appointment of

any court, judge or other constituted authority and every other record or trust

however created, in each case for the benefit of or that relates to a natural person,

including every incomplete, inchoate or bare trust, and in every conveyance,

mortgage, assignment, appointment or other writing, in, by or of which Montreal

Trust Company of Canada or Montreal Trust Company is named as executor,

administrator, trustee, personal representative, bailee, committee, tutor, assignee,

liquidator, receiver, custodian, guardian, curator, agent or other similar fiduciary,

or is named to any other office or position in which any property, interest, or right

is vested in, administered or managed by or put in charge of Montreal Trust

Company or Canada or Montreal Trust Company, in trust, or in the custody, care

or control of Montreal Trust Company of Canada or Montreal Trust Company, in

each case for the benefit of or that relates to a natural person.

(2) Subsection (1) applies to every record and trust described in that subsection even

if the real or personal property held by Montreal Trust Company of Canada or

Montreal Trust Company under the record or trust is situate outside British

Columbia.

(3) If a record or an instrument referred to in subsection (1) names Montreal Trust

Company of Canada or Montreal Trust Company to any office or position

described in that subsection and the record or instrument takes effect after the

effective date, The Bank of Nova Scotia Trust Company is deemed to be named

to the office or position in that record or instrument in the place of Montreal Trust

Company of Canada or Montreal Trust Company, as the case may be.

Real and personal property held in trust by

Montreal Trust Company of Canada or

Montreal Trust Company

(1) In this section, "Montreal Trust property" means, all real and personal property

and every interest in real and personal property that is granted to, held by or

vested in Montreal Trust Company of Canada or Montreal Trust Company,

whether by way of security or otherwise, in trust, or in the custody, care or control

of Montreal Trust Company of Canada or Montreal Trust Company, for or for the

benefit of any other person or purpose, under or in respect of every record and

trust to which

section 4 applies, and whether in the form in which it was originally

acquired by Montreal Trust Company of Canada or Montreal Trust Company, as

the case may be, or otherwise.

(2) Subject to

section 3, all Montreal Trust property is vested on the effective date in

The Bank of Nova Scotia Trust Company,

(

a) according to the tenor of the record or trust referred to in subsection (1),

(

b) at the time indicated or intended by that record or trust, and

(

c) on the same trusts and with the same powers, rights, immunities and

privileges and subject to the same obligations and duties as are provided,

granted or imposed by that record or trust.

(3) Subject to subsection (4) and

section 8, for the purposes of every enactment

affecting the title to property, both real and personal, the vesting of title in The

Bank of Nova Scotia Trust Company of every property referred to in

subsection (2) is effective without the registration or filing of this Act or any

further or other instrument or record showing the change of title in any public

office of the government.

(4) Provided The Bank of Nova Scotia Trust Company files a copy of this Act in the

applicable land title office, The Bank of Nova Scotia Trust Company may, under

section 187 of the Land Title Act , make an application in respect of any registered

estate or interest in the same manner as if this Act effected an amalgamation of

Montreal Trust Company of Canada, Montreal Trust Company and The Bank of

Nova Scotia Trust Company.

(5) An application contemplated under subsection (4) must contain a description of

the titles or charges affected by the application that is sufficient for the registrar

to identify them in the records.

(6) Nothing in subsections (4) and (5) affects the operation of subsections (1), (2),

(3) or any other provision of this Act.

Legal proceedings

(1) Nothing in this Act requires or permits the discontinuance or abatement of a

proceeding being carried on or a power or remedy being exercised by or against

Montreal Trust Company of Canada or Montreal Trust Company as executor,

administrator, trustee, personal representative or in any other capacity referred to

section 4 (1) in any British Columbia court or before any tribunal or agency,

under or in respect of a record or trust to which

section 4 applies.

(2) Despite the Rules of Court applicable to the Supreme Court, a proceeding, power

or remedy referred to in subsection (1) may be continued in the name of The Bank

of Nova Scotia Trust Company, which is subject to the same liabilities and must

pay or may receive the same costs and awards as if the proceeding had been

commenced or defended in the name of The Bank of Nova Scotia Trust Company.

(3) A proceeding or a power, right, remedy or right of distress that might have been

brought or exercised by or against Montreal Trust Company of Canada or

Montreal Trust Company as executor, administrator, trustee, personal representative or in any other capacity referred to in

section 4 (1) under or in respect of a

record or trust to which

section 4 applies, may be brought or exercised by or

against The Bank of Nova Scotia Trust Company, which company has the same

rights and is subject to the same liabilities in respect of these matters as Montreal

Trust Company of Canada or Montreal Trust Company, as the case may be, would

have had or been subject to if this Act had not been enacted.

(4) In a proceeding that has been continued or commenced in the name of The Bank

of Nova Scotia Trust Company under subsection (2) or (3), Montreal Trust

Company of Canada or Montreal Trust Company, as the case may be, and its

officers and employees are deemed to have been acting on behalf of The Bank of

Nova Scotia Trust Company in performing any act, whether before or after this

Act comes into force, involving the administration of a record or trust to which

section 4 applies, and for the purposes of examination for discovery or production

of documents in relation to that proceeding, Montreal Trust Company of Canada

or Montreal Trust Company, as the case may be, and its officers and employees

are subject to the same obligations as if the Act had not been enacted.

Rights of third parties

(1) Nothing in this Act affects the rights of any person having a claim against

Montreal Trust Company of Canada or Montreal Trust Company in respect of a

record or trust to which

section 4 applies, or releases, modifies or affects the

liability of Montreal Trust Company of Canada or Montreal Trust Company to

any such person, but all such rights as may be enforceable in British Columbia

may be asserted against The Bank of Nova Scotia Trust Company, which

company is responsible for all debts, liabilities and obligations of Montreal Trust

Company of Canada and Montreal Trust Company, as the case may be, in respect

of any such record or trust.

Notice

(1) If a person is under an obligation to make payments in relation to property that is

vested in The Bank of Nova Scotia Trust Company under

section 5 (2), the person

may make the payments to Montreal Trust Company of Canada or Montreal Trust

Company, as the case may be, until The Bank of Nova Scotia Trust Company

gives or causes to be given notice in writing to the person that payment must be

made to The Bank of Nova Scotia Trust Company.

(2) If a person receives a notice referred to in subsection (1) the obligation of the

person to make payments is owed to The Bank of Nova Scotia Trust Company.

(3) The Bank of Nova Scotia Trust Company may execute any instrument that

purports to transfer any interest in, encumber or otherwise affect the title to

property that is vested in The Bank of Nova Scotia Trust Company under

section 5 (2) even though

(

a) the property remains registered in the name of Montreal Trust Company of

Canada or Montreal Trust Company or any predecessor trust or loan

company of Montreal Trust Company of Canada or Montreal Trust

Company in any public office of the government, or

(

b) Montreal Trust Company of Canada or Montreal Trust Company is shown

by a record of title as having legal ownership of the property.

(4) An instrument referred to in subsection (3) may contain a recital referring to the

vesting of title to the property in The Bank of Nova Scotia Trust Company under

this Act.

(5) An instrument executed by The Bank of Nova Scotia Trust Company containing

the recital permitted by subsection (4)

(

a) may be accepted for registration by any public office of the government

without further proof of the accuracy of the recital, and

(

b) is effective to do that which it purports to do despite any inaccuracy

contained in the recital.

(6) In order to show the vesting in The Bank of Nova Scotia Trust Company under

section 5 (2) of any interest in personal property that constitutes collateral within

the meaning of the Personal Property Security Act and in respect of which

Montreal Trust Company of Canada or Montreal Trust Company is shown as the

secured party in any financing statement registered under that Act, a financing

change statement may be registered in respect of the vesting as if Montreal Trust

Company of Canada or Montreal Trust Company, as the case may be, had

assigned its interest to The Bank of Nova Scotia Trust Company.

Publication of effective date

9 The Bank of Nova Scotia Trust Company must publish a notice in the Gazette setting

out the effective date and advising that the provisions of this Act take effect as of that

date.

Copyright © 1997: Queen's Printer, Victoria, British Columbia, Canada