Appendix C

Excerpts of Statutes Relevant to the Builders Lien Act

Condominium Act
Employment Standards Act
Interpretation Act
Law and Equity Act
Property Law Act

 


 

CONDOMINIUM ACT

RSBC 1996 CHAPTER 64

Builders liens

 

75 (1) Despite any other Act, if an owner/developer conveys a strata lot to a purchaser, a builders lien must not be filed against the strata lot, or against the purchaser’s share in the common property, later than 31 days after the date the strata lot is conveyed to the purchaser.

(2) Despite any other Act, or any agreement to the contrary, a purchaser of a strata lot from an owner/developer must retain a holdback in the amount of 15% of the gross purchase price of the strata lot, or any smaller amount set by regulation, for a period of 40 days after the date the strata lot is conveyed to the purchaser.

(3) The holdback is subject to a lien under the Builders Lien Act and the holdback is charged with the payment of those persons employed under the person from whom the holdback is retained.

(4) Payment of a holdback required to be retained under subsection (2) must be made after 40 days expire unless in the meantime a claim of lien has been filed, or proceedings have been commenced to enforce a claim of lien against the holdback.

(5) On payment of the holdback amount, all liens of the person to whom the holdback is paid, and of any person employed under him or her for the strata lot, are discharged.

If lien is filed

 

76 (1) If one or more liens have been filed against a strata lot purchased from an owner/developer, the purchaser may, by interlocutory application in proceedings that have been commenced to enforce the lien, or on originating application, pay into the court having jurisdiction the smaller of the

(a) total amount of the claims filed, or
(b) full amount of the holdback under section 75 (2).

(2) Payment into court under subsection (1) discharges the purchaser from liability to the vendor or the lien holder for the claims of lien filed

(3) The money paid into court stands in the place of the strata lot.

(4) An order under subsection (1) must provide that the liens be removed from the title to the strata lot.

(5) Except as provided in this Act, the Builders Lien Act applies.

 


 

EMPLOYMENT STANDARDS ACT

[RSBC 1996] CHAPTER 113

  1 (1) In this Act:

“assignment of wages” includes a written authorization to pay all or part of an employee’s wages to another person;

“employee” includes

(a) a person, including a deceased person, receiving or entitled to wages for work performed for another,

(b) a person an employer allows, directly or indirectly, to perform work normally performed by an employee,

(c) a person being trained by an employer for the employer’s business,

“overtime wages” means the wages an employee is entitled to receive under section 40 or 41;

“regular wage” means

(a) if an employee is paid by the hour, the hourly wage,

(b) if an employee is paid on a flat rate, piece rate, commission or other incentive basis, the employee’s wages in a pay period divided by the employee’s total hours of work during that pay period,

(c) if an employee is paid a weekly wage, the weekly wage divided by the lesser of the employee’s normal or average weekly hours of work,

(d) if an employee is paid a monthly wage, the monthly wage multiplied by 12 and divided by the product of 52 times the lesser of the employee’s normal or average weekly hours of work, and

(e) if an employee is paid a yearly wage, the yearly wage divided by the product of 52 times the lesser of the employee’s normal or average weekly hours of work;

“termination pay” means, for each week of notice an employee is entitled to, the amount obtained by totalling the employee’s weekly wages, at the regular wage, during the last 8 weeks in which the employee worked normal or average hours of work and dividing the total by 8;

“wages” includes

(a) salaries, commissions or money, paid or payable by an employer to an employee for work,

(b) money that is paid or payable by an employer as an incentive and relates to hours of work, production or efficiency,

(c) money, including the amount of any liability under section 63, required to be paid by an employer to an employee under this Act,

(d) money required to be paid in accordance with a determination or an order of the tribunal, and

(e) in Parts 10 and 11, money required under a contract of employment to be paid, for an employee’s benefit, to a fund, insurer or other person,

but does not include

(f) gratuities,

(g) money that is paid at the discretion of the employer and is not related to hours of work, production or efficiency,

(h) allowances or expenses, and

(i) penalties;

 

 

63 (1) After 3 consecutive months of employment, the employer becomes liable to pay an employee an amount equal to one week’s wages as compensation for length of service.

(2) The employer’s liability for compensation for length of service increases as follows:

(a) after 12 consecutive months of employment, to an amount equal to 2 weeks’ wages;

(b) after 3 consecutive years of employment, to an amount equal to 3 weeks’ wages plus one additional week’s wages for each additional year of employment, to a maximum of 8 weeks’ wages.

(3) The liability is deemed to be discharged if the employee

(a) is given written notice of termination as follows:

 

(i) one week’s notice after 3 consecutive months of employment;

 

(ii) 2 weeks’ notice after 12 consecutive months of employment;

(iii) 3 weeks’ notice after 3 consecutive years of employment, plus one additional week for each additional year of employment, to a maximum of 8 weeks’ notice;

(b) is given a combination of notice and money equivalent to the amount the employer is liable to pay, or

(c) terminates the employment, retires from employment, or is dismissed for just cause.

(4) The amount the employer is liable to pay becomes payable on termination of the employment and is calculated by

(a) totalling all the employee’s weekly wages, at the regular wage, during the last 8 weeks in which the employee worked normal or average hours of work,

(b) dividing the total by 8, and

(c) multiplying the result by the number of weeks’ wages the employer is liable to pay.

(5) For the purpose of determining the termination date, the employment of an employee who is laid off for more than a temporary layoff is deemed to have been terminated at the beginning of the layoff.

 

Part 10 — Complaints, Investigations and Determinations

 
Complaint and time limit

 

 

74 (1) An employee, former employee or other person may complain to the director that a person has contravened

(a) a requirement of Parts 2 to 8 of this Act, or

(b) a requirement of the regulations specified under section 127 (2) (l).

(2) A complaint must be in writing and must be delivered to an office of the Employment Standards Branch.

(3) A complaint relating to an employee whose employment has terminated must be delivered under subsection (2) within 6 months after the last day of employment.

(4) A complaint that a person has contravened a requirement of section 8, 10 or 11 must be delivered under subsection (2) within 6 months after the date of the contravention.

 
If complainant requests identity be kept confidential

  75 (1) If requested in writing by a complainant, the director must not disclose any identifying information about the complainant unless

(a) the disclosure is necessary for the purposes of a proceeding under this Act, or

(b) the director considers the disclosure is in the public interest.

(2) Subsection (1) applies despite any provision of the Freedom of Information and Protection of Privacy Act other than section 45 (2) and (3) of that Act.

 
Investigation after or without a complaint

 

 

76 (1) Subject to subsection (2), the director must investigate a complaint made under section 74.

(2) The director may refuse to investigate a complaint or may stop or postpone investigating a complaint if

(a) the complaint is not made within the time limit in section 74 (3) or (4),

(b) this Act does not apply to the complaint,

(c) the complaint is frivolous, vexatious or trivial or is not made in good faith,

(d) there is not enough evidence to prove the complaint,

(e) a proceeding relating to the subject matter of the complaint has been commenced before a court, tribunal, arbitrator or mediator,

(f) a court, tribunal or arbitrator has made a decision or award relating to the subject matter of the complaint, or

(g) the dispute that caused the complaint is resolved.

(3) Without receiving a complaint, the director may conduct an investigation to ensure compliance with this Act.

 
Opportunity to respond

 

  77 If an investigation is conducted, the director must make reasonable efforts to give a person under investigation an opportunity to respond.

 
Settlements

 

  78 (1) The director may do one or more of the following:

(a) assist in settling a complaint or a matter investigated under section 76;

(b) arrange that a person pay directly to an employee or other person any amount to be paid as a result of a settlement;

(c) receive on behalf of an employee or other person any amount to be paid as a result of a settlement.

(2) The director must pay money received under subsection (1) (c) to the person on whose behalf the money was received.

(3) If a person fails to comply with the terms of a settlement, the settlement is void and the director may

(a) determine the amount the person would have been required to pay under section 79 had the settlement not been made, and

(b) require the person to pay that amount.

 
Determination

 

 

79 (1) On completing an investigation, the director may make a determination under this section.

(2) If satisfied that the requirements of this Act and the regulations have not been contravened, the director must dismiss a complaint.

(3) If satisfied that a person has contravened a requirement of this Act or the regulations, the director may do one or more of the following:

(a) require the person to comply with the requirement;

(b) require the person to remedy or cease doing an act;

(c) impose a penalty on the person under section 98.

(4) In addition, if satisfied that an employer has contravened a requirement of section 8 or Part 6, the director may require the employer to do one or more of the following:

(a) hire a person and pay the person any wages lost because of the contravention;

(b) reinstate a person in employment and pay the person any wages lost because of the contravention;

(c) pay a person compensation instead of reinstating the person in employment;

(d) pay an employee or other person reasonable and actual out of pocket expenses incurred by him or her because of the contravention.

(5) If satisfied that an employer has contravened section 39, the director may require the employer to limit hours of work of employees to

(a) 8 in a day or 40 in a week, or

(b) if the employer has adopted a flexible work schedule under section 37 or 38, an average over the shift cycle of 8 in a day or 40 in a week.

(6) If satisfied that an employer has contravened a requirement under subsection (5), the director may require the employer to vary the overtime wages payable to employees for the period of the contravention and any later period.

 
Limit on amount of wages required to be paid

 

 

80 The amount of wages an employer may be required by a determination to pay an employee is limited to the amount that became payable in the period beginning

(a) in the case of a complaint, 24 months before the earlier of the date of the complaint or the termination of the employment, and

(b) in any other case, 24 months before the director first told the employer of the investigation that resulted in the determination,

plus interest on those wages.

 

 
Notifying others of determination

 

  81 (1) On making a determination under this Act, the director must serve any person named in the determination with a copy of the determination that includes the following:

(a) the reasons for the determination;

(b) if an employer or other person is required by the determination to pay wages, compensation, interest, a penalty or another amount, the amount to be paid and how it was calculated;

(c) if a penalty is imposed, the nature of the contravention and the date by which the penalty must be paid;

(d) the time limit and process for appealing the determination to the tribunal.

(2) On being served with a determination requiring the employer to limit the hours of work of employees, an employer must display a copy of the determination in each workplace in locations where the determination can be read by any affected employees.

 
No other proceedings

 

  82 Once a determination is made requiring payment of wages, an employee may commence another proceeding to recover them only if

(a) the director has consented in writing, or

(b) the director or the tribunal has cancelled the determination.

 
Employee not to be mistreated because of complaint or investigation

 

  83 (1) An employer must not

(a) refuse to employ or refuse to continue to employ a person,

(b) threaten to dismiss or otherwise threaten a person,

(c) discriminate against or threaten to discriminate against a person with respect to employment or a condition of employment, or

(d) intimidate or coerce or impose a monetary or other penalty on a person,

because a complaint or investigation may be or has been made under this Act or because an appeal or other action may be or has been taken or information may be or has been supplied under this Act.

(2) If satisfied that a person has contravened subsection (1), the director may make any determination authorized by section 79 (3) or (4).

 
Director’s investigative powers and protections

 

 

84 For the purposes of this Act, the director has the power and authority of a commissioner under sections 12, 15 and 16 of the Inquiry Act.

 
Entry and inspection powers

 

 

85 (1) For the purposes of ensuring compliance with this Act and the regulations, the director may do one or more of the following:

(a) enter during regular working hours any place, including any means of conveyance or transport, where

(i) work is or has been done or started by employees,

(ii) an employer carries on business or stores assets relating to that business,

(iii) a record required for the purposes of this Act is kept, or

(iv) anything to which this Act applies is taking place or has taken place;

(b) inspect, and question a person about, any work, material, appliance, machinery, equipment or other thing in the place;

(c) inspect any records that may be relevant to an investigation under this Part;

(d) on giving a receipt for a record examined under paragraph (c), remove the record to make copies or extracts;

(e) require a person to disclose, either orally or in writing, a matter required under this Act and require that the disclosure be under oath or affirmation;

(f) require a person to produce, or to deliver to a place specified by the director, any records for inspection under paragraph (c).

(2) Despite subsection (1), the director may enter a place occupied as a private residence only with the consent of the occupant or under the authority of a warrant issued under section 120.

 
Power to reconsider

  86 The director may vary or cancel a determination.

 

Part 11 — Enforcement

 
Lien for unpaid wages

 

 

87 (1) Despite any other Act, unpaid wages constitute a lien, charge and secured debt in favour of the director, dating from the time the wages were earned, against all the real and personal property of the employer or other person named in a determination or order, including money due or accruing due to the employer or other person from any source.

(2) Unpaid wages set out in a decision or order filed under section 30 of the Industrial Relations Act, R.S.B.C. 1979, c. 212, or under section 102 or 135 of the Labour Relations Code constitute a lien, charge and secured debt in favour of the persons named in the decision or order against all the real and personal property of the employer or other person named in the decision or order.

(3) Despite any other Act but subject to subsection (5), the amount of a lien, charge and secured debt referred to in subsections (1) and (2) is payable and enforceable in priority over all liens, judgments, charges and security interests or any other claims or rights, including the following:

(a) any claim or right of the government including, but not limited to, the claims and rights of the Workers’ Compensation Board;

(b) any claim or right arising through contract, account receivable, insurance claim or sale of goods;

(c) any security interest within the meaning of the Personal Property Security Act.

(4) Subsection (3) (c) applies whether the lien, judgment, charge, security interest, claim or right was perfected within the meaning of the Personal Property Security Act, or was created or made, before or after

(a) the date the wages were earned, or

(b) the date a payment for the benefit of an employee became due.

(5) The lien, charge and secured debt referred to in subsections (1) and (2) has priority over a mortgage of, or debenture charging, land, that was registered in a land title office before registration against that land of a certificate of judgment obtained on the filing, under section 91, of a determination or an order of the tribunal, but only with respect to money advanced under the mortgage or debenture after the certificate of judgment was registered.

 
Payment of interest

 

  88 (1) If an employer fails to pay wages or another amount to an employee, the employer must pay interest at the prescribed rate on the wages or other amount from the earlier of

(a) the date the employment terminates, and

(b) the date a complaint about the wages or other amount is delivered to the director

to the date of payment.

(2) No interest accumulates under subsection (1) from the date a determination is made under section 79 requiring payment of the wages or other amount until 23 days after that date.

(3) Interest payable under subsection (1) is deemed to be wages and this Act applies to the recovery of those wages.

(4) Subsection (1) applies whether or not the wages or other amount became payable before this section comes into force, but the date from which the interest is calculated must not be earlier than the date this section comes into force.

(5) An amount collected under this Part, or deposited under section 113, earns interest at the prescribed rate, payable by the Minister of Finance and Corporate Relations, from the date the amount is deposited in a savings institution to the date of payment to the person entitled.

(6) Subsection (5) does not apply to any security provided or bond posted under section 100.

 

 
Demand on third party

 

  89 (1) If the director has reason to believe that a person is or is likely to become indebted to another who is required to pay money under a determination or under an order of the tribunal, the director may demand in writing that the person pay to the director, on account of the other’s liability under the determination or order, all or part of the money otherwise payable to the other person.

(2) A person on whom a demand is made under this section must, if indebted to the other person, pay to the director or to someone specified by the director the amount demanded, within 15 days after the later of

(a) the date the demand is served, and

(b) the date the person named in the demand becomes indebted to the other person.

(3) The director’s receipt for money paid by a person in response to a demand is proof that the person’s liability to the person required to pay under the determination or under the order of the tribunal is discharged to the extent of the amount stated in the receipt.

(4) For the purposes of this section, a savings institution is indebted to a person required to pay under a determination or under an order of the tribunal for money or a beneficial interest in money in the savings institution

(a) on deposit to the credit of that person when a demand is served,

(b) held in trust by a depositor for that person when a demand is served, or

(c) deposited to the credit of that person after a demand is served.

(5) A demand made under this section continues in effect until it is satisfied or until it is cancelled by the director.

 
Failure to comply with demand

 

  90 (1) If a person on whom a demand is made under section 89 does not comply with the demand,

(a) the director may enforce recovery of the amount stated in the demand as if it were unpaid wages, and

(b) this Act applies to the recovery of that amount.

(2) If a person on whom a demand is made under section 89 denies indebtedness to anyone required to pay under a determination or under an order of the tribunal, the director may require that person to produce information the director considers necessary to establish that there is no indebtedness.

 

 
Determination or order may be filed and enforced as judgment

  91 (1) The director may at any time file a determination or an order of the tribunal in a Supreme Court registry.

(2) Unless varied, cancelled or suspended under section 86, 113, 115, 116 or 119 a filed determination is enforceable in the same manner as a judgment of the Supreme Court in favour of the director for the recovery of a debt in the amount stated in the determination.

(3) Unless varied or cancelled by the tribunal under section 116, a filed order of the tribunal is enforceable in the same manner as a judgment of the Supreme Court in favour of the director for the recovery of a debt in the amount stated in the order.

(4) If a determination or order filed under this section is varied, cancelled or suspended, the director must promptly withdraw the determination or order from filing in the Supreme Court registry.

 

 
Seizure of assets

  92 (1) The director may seize as much of the assets owned or possessed by a person required to pay under a determination or under an order of the tribunal, or used in or incidental to that person’s business, as is necessary to satisfy

(a) the amount stated in the determination or order, and

(b) the costs of seizure.

(2) The director must safely keep the assets under seizure until

(a) the determination or the order of the tribunal is filed in court under section 91 and a writ of seizure and sale has been executed, or

(b) the determination or order is cancelled under section 86, 115, 116 or 119.

 
Release of assets

  93 The director must release an asset seized under section 92 if satisfied that the asset is owned by someone other than a person required to pay under a determination or under an order of the tribunal.

 

 
Wrongful removal of seized assets

 

94 (1) A person must not remove, damage or dispose of assets seized under section 92 except in accordance with this Act, a writ of seizure and sale or a court order.

(2) In addition to any other penalty, a person who contravenes subsection (1) is liable for the amount owed by the person required to pay under the determination or under the order of the tribunal.

(3) This Act applies to the recovery of an amount a person is liable for under subsection (2).

 
Associated corporations

  95 If the director considers that businesses, trades or undertakings are carried on by or through more than one corporation, individual, firm, syndicate or association, or any combination of them under common control or direction,

(a) the director may treat the corporations, individuals, firms, syndicates or associations, or any combination of them, as one person for the purposes of this Act, and

(b) if so, they are jointly and separately liable for payment of the amount stated in a determination or in an order of the tribunal, and this Act applies to the recovery of that amount from any or all of them.

 
Corporate officer’s liability for unpaid wages

  96 (1) A person who was a director or officer of a corporation at the time wages of an employee of the corporation were earned or should have been paid is personally liable for up to 2 months’ unpaid wages for each employee.

(2) Despite subsection (1), a person who was a director or officer of a corporation is not personally liable for

(a) any liability to an employee under section 63, termination pay or money payable under a collective agreement in respect of individual or group terminations, if the corporation is in receivership or is subject to action under section 427 of the Bank Act (Canada) or to a proceeding under an insolvency Act,

(b) vacation pay that becomes payable after the director or officer ceases to hold office, or

(c) money that remains in an employee’s time bank after the director or officer ceases to hold office.

(3) This Act applies to the recovery of the unpaid wages from a person liable for them under subsection (1).

 
Sale of business or assets

  97 If all or part of a business or a substantial part of the entire assets of a business is disposed of, the employment of an employee of the business is deemed, for the purposes of this Act, to be continuous and uninterrupted by the disposition.

 
Monetary penalties

  98 (1) If the director is satisfied that a person has contravened a requirement of this Act or the regulations or a requirement imposed under section 100, the director may impose a penalty on the person in accordance with the prescribed schedule of penalties.

(2) If a corporation contravenes a requirement of this Act or the regulations, an employee, officer, director or agent of the corporation who authorizes, permits or acquiesces in the contravention is also liable to the penalty.

(3) A person on whom a penalty is imposed under this section must pay the penalty whether or not the person

(a) has been convicted of an offence under this Act or the regulations, or

(b) is also liable to pay a fine for an offence under section 125.

(4) A penalty imposed under this Part is a debt due to the government and may be collected by the director in the same manner as wages.

 
If money is paid to director

  99 (1) Subject to section 78 (2), the director must pay to the Minister of Finance and Corporate Relations all money received by the director under this Act, including money to be held in trust for the persons named in a determination or in an order of the tribunal.

(2) Money received by the Minister of Finance and Corporate Relations in respect of a determination or an order of the tribunal must be attributed

(a) first, to any wages required to be paid by the determination or order,

(b) next, to any other amount, other than interest or penalties, required to be paid by the determination or order,

(c) next, to interest required to be paid by the determination or order, and

(d) last, to any penalties required to be paid by the determination or order.

(3) The Minister of Finance and Corporate Relations must pay, according to the direction of the director, to the persons named in a determination or in an order of the tribunal, money received in trust for them.

(4) Money attributed to wages under subsection (2) must be attributed proportionally among the employees or former employees named in the determination or order according to the amount owing as shown on the determination or order.

(5) The money attributed to an employee under subsection (4) must then be paid according to the following priority:

 

(a) to a person who is a holder for value of an uncashed cheque or money order for the employee’s wages;

(b) to a person the employee assigned the wages to;

(c) to the employee or, if deceased,

(i) to the employee’s estate, or

(ii) under the Estate Administration Act;

(d) to a fund, insurer or other person to whom payment is to be made under section 26.

(6) If there is not enough money to pay everyone entitled under a paragraph in subsection (5), the money available under that paragraph must be divided among them in proportion to the amount each of them is entitled to.

(7) Subsections (4) to (6) apply also to interest required to be paid on wages by a determination or an order of the tribunal.

(8) Despite subsections (5) and (7), if money is received for wages or interest owing to an employee who owes money under another determination or under an order of the tribunal, the director may direct that the amount received be used to pay the claims of anyone entitled to payment under the other determination or the order.

 
Security to ensure compliance

  100 (1) To ensure compliance with this Act or the regulations, the director may require an employer who has at any time contravened a requirement relating to the payment of wages under this Act, the former Act or the regulations under either Act

(a) to provide an irrevocable letter of credit or other security satisfactory to the director, or

(b) to post a bond under the Bonding Act.

(2) Subsection (1) applies whether or not

(a) a penalty has been imposed on the employer under this Act, or

(b) the employer has been convicted of an offence under this Act, the former Act or the regulations under either Act.

 
Publication of violators’ names

  101 (1) The director may compile information relating to contraventions of this Act or the regulations, including information identifying the persons who, according to a determination or an order of the tribunal, committed the contraventions.

(2) Despite the Freedom of Information and Protection of Privacy Act, the director may

(a) publish information compiled under subsection (1), and

(b) make that information available for public inspection during regular business hours at offices of the Employment Standards Branch.

 

 


 

INTERPRETATION ACT

RSBC 1996 CHAPTER 238

Calculation of time or age

  25 (1) This section applies to an enactment and to a deed, conveyance or other legal instrument unless specifically provided otherwise in the deed, conveyance or other legal instrument.

(2) If the time for doing an act falls or expires on a holiday, the time is extended to the next day that is not a holiday.

(3) If the time for doing an act in a business office falls or expires on a day when the office is not open during regular business hours, the time is extended to the next day that the office is open.

(4) In the calculation of time expressed as clear days, weeks, months or years, or as “at least” or “not less than” a number of days, weeks, months or years, the first and last days must be excluded.

(5) In the calculation of time not referred to in subsection (4), the first day must be excluded and the last day included.

(6) If, under this section, the calculation of time ends on a day in a month that has no date corresponding to the first day of the period of time, the time ends on the last day of that month.

(7) A specified time of day is a reference to Pacific Standard time, or 8 hours behind Greenwich mean time, unless Daylight Saving time is being used or observed on that day.

(8) A person reaches a particular age expressed in years at the start of the relevant anniversary of his or her date of birth.

 

Use of forms and words

  28 (1) If a form is prescribed by or under an enactment, deviations from it not affecting the substance or calculated to mislead, do not invalidate the form used.

Expressions defined

 

29 In an enactment:

“government” or “government of British Columbia” means Her Majesty in right of British Columbia;

“Her Majesty”, “His Majesty”, “the Queen”, “the King”, “the Crown” or “the Sovereign” means the Sovereign of the United Kingdom, Canada, and Her other realms and territories, and Head of the Commonwealth;

“mail” refers to the deposit of the matter to which the context applies in the Canada Post Office at any place in Canada, postage prepaid, for transmission by post, and includes deliverly;

“person” includes a corporation, partnership or party, and the personal or other legal representatives of a person to whom the context can apply according to law;

“savings institution” means

(a) a bank,
(b) a credit union,
(c) a trust company or extraprovincial trust corporation authorized to carry on deposit business under the Financial Institutions Act,
(d) a corporation that is a subsidiary of a bank and is a loan company to which the Trust and Loan Companies Act (Canada) applies, or
(e) the B.C. Community Financial Services Corporation established under the Community Financial Services Act;

Repeal and replacement

 

  36 (1) If an enactment (the “former enactment”) is repealed and another enactment (the “new enactment”) is substituted for it,

(a) every person acting under the former enactment must continue to act as if appointed or elected under the new enactment until another is appointed or elected in his or her place,

(b) every proceeding commenced under the former enactment must be continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment,

(c) the procedure established by the new enactment must be followed as far as it can be adapted in the recovery or enforcement of penalties and forfeitures incurred under the former enactment, in the enforcement of rights existing or accruing under the former enactment, and in a proceeding relating to matters that happened before the repeal,

(d) when a penalty, forfeiture or punishment is reduced or mitigated by the new enactment, the penalty, forfeiture or punishment if imposed or adjusted after the repeal must be reduced or mitigated accordingly,

(e) all regulations made under the former enactment remain in force and are deemed to have been made under the new enactment, in so far as they are not inconsistent with the new enactment, until they are repealed or others are made in their place, and

(f) a reference in an unrepealed enactment to the former enactment must, for a subsequent transaction, matter or thing, be construed as a reference to the provision of the new enactment relating to the same subject matter, but if there is no provision in the new enactment relating to the same subject matter, the former enactment must be construed as being unrepealed so far as is necessary to give effect to the unrepealed enactment.

 

Powers to make regulations

  41 (1) If an enactment provides that the Lieutenant Governor in Council or any other person may make regulations, the enactment must be construed as empowering the Lieutenant Governor in Council or that other person, for the purpose of carrying out the enactment according to its intent, to

(a) make regulations as are considered necessary and advisable, are ancillary to it, and are not inconsistent with it,

(b) provide for administrative and procedural matters for which no express, or only partial, provision has been made,

(c) limit the application of a regulation in time or place or both,

(d) prescribe the amount of a fee authorized by the enactment,

(e) provide, for a regulation made by or with the approval of the Lieutenant Governor in Council, that its contravention constitutes an offence, and

(f) provide that a person who is guilty of an offence created under paragraph (e) is liable to a penalty not greater than the penalties provided in the Offence Act.

(2) A regulation made under the authority of an enactment has the force of law.

 

 

 


 

LAW AND EQUITY ACT

RSBC 1996 CHAPTER 253

Venue in foreclosure proceedings

 

21 (1) In this section:

“foreclosure”

(a) does not include a proceeding to enforce or realize a security under a debenture if that security is land, and

(b) in respect of an agreement for sale, as defined in section 16 (1), means a foreclosure as defined in that section;

“mortgage” includes an agreement for sale as defined in section 16 (1).

(2) Unless the court otherwise orders, every foreclosure proceeding on a mortgage must be commenced,

(a) if the land that is the subject of the foreclosure proceeding is located in a municipality and there is a registry of the Supreme Court located in that municipality, at that registry, or

(b) if the land that is the subject of the foreclosure proceeding is not located in a municipality or, if it is located in a municipality but there is no registry of the Supreme Court located in that municipality, at any registry located in the judicial district in which the land is located,

and all applications in the proceedings must, subject to the Rules of Court, be heard at the location of that registry.

(3) For the purposes of subsection (2), the Vancouver and New Westminster registries are deemed to be the same registry.

(4) If the subject of a foreclosure proceeding is more than one parcel of land, each of which may be closer to different registries of the Supreme Court, the party commencing the proceeding has the right to decide in which of those registries to commence the proceeding.

(5) This section does not apply if, after an allegation of a default under the mortgage, the person proposing to commence the foreclosure proceeding agrees with the registered owner of the land that is to be the subject of the proceeding, that the proceeding may be commenced at a registry other than the registry referred to in subsection (2) or (4).

[Note – An amendment to section 21(2)(b) has been pending since 1989. S.B.C. 1989, c. 64, s. 9 would amend paragraph (b) to read:

(b) if the land that is the subject of the foreclosure proceeding is not located in a municipality or, if it is located in a municipality but there is no registry of the Supreme Court located in that municipality, at the nearest registry of the Supreme Court that can be conveniently reached from the land that is the subject of the proceeding.

When and if this amendment will be brought into force is not known.]

 

 


 

PROPERTY LAW ACT

RSBC 1996 CHAPTER 377

Further advances by mortgagee

 

28 (1) In this section, “further advance” includes a first advance.

(2) Despite the Land Title Act, after October 30, 1979, further advances made by a registered owner of a mortgage contemplated by and in accordance with the mortgage rank in priority to mortgages and judgments registered after his or her mortgage was registered if

(a) the subsequent registered mortgagees or judgment holders agree in writing to the priority of the further advances,

(b) at the time the further advances are made, he or she has not received notice in writing of the registration of the subsequent mortgage or judgment, from its owner or holder,

(c) at the time the further advances are made, the subsequent mortgage or judgment has not been registered, or

(d) the mortgage requires him or her to make the further advances.

(3) If a mortgage is expressed to be made to secure a current or running account, it is not deemed to have been redeemed merely because

(a) advances made under it are repaid, or
(b) the account of the mortgagor with the mortgagee ceases to be in debit,

and the mortgage remains effective as security for further advances and retains the priority given by this section until the mortgagee has delivered a registrable discharge of the mortgage to the mortgagor but, if the mortgagor is not indebted or in default under the mortgage, the mortgagee must, on the mortgagor’s request and at the mortgagor’s expense, execute and deliver to the mortgagor a registrable discharge of the mortgage.

(4) Except as provided in this section, a right to tack in respect of mortgages of land is abolished but priority acquired before October 31, 1979 for further advances under a mortgage is not affected.

(5) This section applies to mortgages of land made after October 30, 1979.

Go back to Appendix B, or return to the Table of Contents.


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