1994 Legislative Session: 3rd Session, 35th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


MR. FRED RANDALL

BILL Pr 402 -- 1994

TD TRUST COMPANY ACT, 1994

Contents

Section  
1  Interpretation
2  Purpose
3  Non-application
4  Substituted Fiduciary
5  Real and Personal Property held in trust by Central Guaranty Trust Company
6  Legal Proceedings
7  Rights of Third Parties
8  Dealing with Property
9  Crown Bound
10  Commencement

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 "registrar" means the registrar appointed under the Land Title Act of the respective 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 trusteeship and agency business of Central Guaranty Trust Company to TD Trust Company so that rights and obligations of those who have relations with Central Guaranty Trust Company and TD Trust Company with respect to that trusteeship and agency business may be clearly determined.

Non-application

3 (1) This Act does not apply to,

(a) real or personal property that is owned by, vested in, or granted to Central Guaranty Trust Company and that is held by Central Guaranty Trust Company 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 Central Guaranty Trust Company under a record or trust to which section 4 applies and any power, right, immunity, privilege, a right of action that may be exercised by or against Central Guaranty Trust Company 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 Central Guaranty Trust Company is trustee;

(d) any real or personal property granted to or held by or vested in Central Guaranty Trust Company under or in respect of,

(i) any trust indenture or other indenture to which section 4 would otherwise apply in which Central Guaranty Trust Company 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 Central Guaranty Trust Company acts as trustee for unitholders in respect of any oil or gas royalty trust fund, and

(iii) any record or trust to which section 4 would otherwise apply under which Central Guaranty Trust Company acts as trustee, manager, advisor, registrar or transfer agent with respect to the Central Guaranty Trust funds -- Canadian Money Market Fund, Central Guaranty Trust Investors Fund (Income and Equity Sections), Central Guaranty Property Fund and Central Guaranty Trust Real Estate Fund; or

(e) any agreement or other record of any kind by which Central Guaranty Trust Company is named or may be named as registrar or transfer agent, except for any appointment of Central Guaranty Trust Company as registrar or transfer agent of a mutual fund other than the mutual funds described in section 3(2)(d)(iii).

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

(a) if a court has appointed or has the power to appoint Central Guaranty Trust Company as personal representative of a deceased person, whether as executor, administrator or otherwise, for property located outside British Columbia, the court may, on application, appoint TD Trust Company as personal representative with respect to that property in place of Central Guaranty Trust Company, and

(b) if property located outside British Columbia but not referred to in paragraph (a) is held by Central Guaranty 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 Supreme Court may, on application, appoint TD Trust Company as trustee with respect to that property in place of Central Guaranty Trust Company.

(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 2, 6 and 7 apply to every record and trust in respect of which an appointment is made under subsection (2).

(5) Despite subsection (1)(c), this Act applies to trusts relating to moneys received by Central Guaranty Trust Company for guaranteed investment and any real or personal property held in trust by Central Guaranty Trust Company with respect to any 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.

Substituted Fiduciary

4 (1) Despite section 3(1)(b) but subject to section 3(1)(a), (c), (d) and (e), TD Trust Company is substituted in the place of Central Guaranty Trust Company in or in respect of every trust, trust deed, trust agreement, instrument of creation, deed of appointment, settlement, assignment, will, codicil or other testamentary record, and every letters probate, letters of administration, judgment, decree, order, direction, pension plan or benefit plan trust, investment management and investment administration accounts, agreements or contracts, or appointment of any court, judge or other constituted authority, and every other record or trust howsoever created, including every incomplete, inchoate or bare trust, and in every conveyance, mortgage, assignment, appointment or other writing, in, by, or of which Central Guaranty Trust Company is named as executor, administrator, trustee, personal representative, bailee, committee, tutor, assignee, liquidator, receiver, custodian, guardian, curator or agent, or is named to any other office or position whatsoever in which any property, interest, possibility, or right is vested in, administered or managed by, or put in charge of Central Guaranty Trust Company in trust, or in the custody, care or control of Central Guaranty Trust Company, for or for the benefit of any person or purpose.

(2) Every record and trust referred to in subsection (1) is to be construed and given effect as if TD Trust Company had been named in it in the place of Central Guaranty Trust Company.

(3) If a record or an instrument referred to in subsection (1) names Central Guaranty Trust Company to any office or position described in that subsection and the instrument takes effect after the substitution of Trust Company for Central Guaranty Trust Company, TD Trust Company is deemed to be named in that record or instrument in the place of Central Guaranty Trust Company.

Real and Personal Property held in trust by Central Guaranty Trust Company

5 (1) Subject to section 3, all real and personal property and every interest in real and personal property that is granted to, or held by, or vested in Central Guaranty Trust Company, whether by way of security or otherwise, in trust, or in the custody, care or control of Central Guaranty 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 Central Guaranty Trust Company or otherwise, is vested in TD Trust Company, according to the tenor of and at the time indicated or intended by the record or trust, 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 the record or trust, as the case may be.

(2) Subject to subsection (3) and section 8, for the purposes of every enactment affecting the title to property, both real and personal, the vesting of title in TD Trust Company of every property affected by subsection (1) is effective without the registration or filing of this Act, or any further or other instrument, record or certificate showing the change of title in any public office whatsoever within the jurisdiction of British Columbia.

(3) Provided TD Trust Company files a copy of this Act in the applicable land title office, TD 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 Central Guaranty Trust Company and TD Trust Company.

(4) 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.

(5) Nothing in subsections (3) and (4) affects the operation of subsections (1), (2) or any other provision of this Act.

Legal Proceedings

6 (1) Nothing in this Act requires or permits the discontinuance or abatement of a suit, action, appeal, application or other proceeding being carried on or a power or remedy being exercised by Central Guaranty Trust Company in any 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 suit, action, appeal, application, proceeding, power or remedy referred to in subsection (1), may be continued in the name of TD Trust Company, and, in that event, TD Trust Company has the same rights and may receive the same costs and awards as if the suit, action, appeal, application or other proceeding had been commenced in the name of TD Trust Company.

(3) Any suit, action, appeal, application or other proceeding, or any power, right, remedy or right of distress that might have been brought or exercised by Central Guaranty Trust Company under or in respect of a record or trust to which section 4 applies, may be brought or exercised by TD Trust Company, and, in that event, TD Trust Company has the same rights in respect of these matters as Central Guaranty Trust Company would have had if this Act had not been enacted.

Rights of Third Parties

7 (1) Nothing in this Act affects the rights of any person having a claim against Central Guaranty Trust Company in respect of a record or trust to which section 4 applies, or impairs, modifies or affects the liability of Central Guaranty Trust Company to any such person.

(2) TD Trust Company is not liable for any debts, liabilities or obligations arising out of any act or omission on the part of Central Guaranty Trust Company in respect of a record or trust to which section 4 applies that occurred prior to January 1, 1993 and no suit, action, application or other proceeding, or power, right, remedy or right of distress that arose in respect of any such act or omission may be brought or exercised against TD Trust Company.

Dealing with Property

8 (1) If a person is under an obligation to make payments in relation to property that is vested in TD Trust Company under section 5(1), the person may make the payments to Central Guaranty Trust Company until TD Trust Company gives or causes to be given notice in writing to the person that payment must be made to TD Trust Company.

(2) If a person receives a notice referred to in subsection (1) the respective obligation of such person to make payments is owed to TD Trust Company.

(3) TD 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 TD Trust Company under section 5(1) even though

(a) the property remains registered in the name of Central Guaranty Trust Company in any public office in British Columbia, or

(b) Central Guaranty 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 requesting the vesting of title to the property in TD Trust Company under this Act.

(5) An instrument executed by TD Trust Company containing the recital permitted by subsection (4) may be accepted for registration by any public office within the jurisdiction of British Columbia without further proof of the accuracy of the recital, and every such instrument 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 TD Trust Company under section 5(1) of any interest in personal property that constitutes collateral within the meaning of the Personal Property Security Act and in respect of which Central Guaranty Trust Company is shown as the secured party in any financing statement registered under that Act, it is sufficient for a financing change statement to be registered in respect of the vesting as if Central Guaranty Trust Company had assigned its interest to TD Trust Company.

Commencement

9 Section 4 shall be deemed to have come into force on January 1, 1993 and is retroactive to the extent necessary to give it effect on and after that date.


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