1. The rules of law enacted and declared by this Act are part of the law of the Province and shall be applied in all courts in the Province.
Historical Note(s): 1973-84-9.
2. Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in the Province; but those laws shall be held to be modified and altered by all legislation having the force of law in the Province or in any former Colony comprised within its geographical limits.
Historical Note(s): RS1960-129-2; 1978-11-6.
3. The provisions set out in column 2 opposite the Acts set out in column 1 of this section are not in force in the Province:
| Column 1 | Column 2 |
| Offences Against the Person Act, 1828 | Section 28 |
| Real Property Act, 1845 | All sections |
Historical Note(s): 1978-11-6; 1978-16-35.
4. Where a plaintiff or petitioner claims to be entitled to an equitable estate or right or to relief on an equitable ground against a deed, instrument or contract, or against any right, title or claim asserted by a defendant or respondent, in a cause or matter or to relief founded on a legal right which could, prior to April 29, 1879, only have been given by the court as a court of equity, the court, either as a court of law or equity, and every judge of it, shall give the plaintiff or petitioner the relief as ought to have been given by the court in a suit or proceeding in equity for the same or similar purpose properly instituted before April 29, 1879.
Historical Note(s): RS1960-213-2; 1973-84-9.
5. Where a defendant claims to be entitled to an equitable estate or right or to relief on an equitable ground against a deed, instrument or contract, or against any right, title or claim asserted by a plaintiff or petitioner in a cause or matter or alleges an equitable defence to a claim of the plaintiff or petitioner in the cause or matter, the court, whether as a court of law or equity, and every judge of it, shall give to every equitable estate, right or ground of relief claimed, and to every equitable defence alleged, the effect by way of defence against the claim of the plaintiff or petitioner, as the court ought to have given if the same or similar matters had been relied on as a defence in a suit or proceeding instituted in that court as a court of equity for the same or similar purpose before April 29, 1879.
Historical Note(s): RS1960-213-2; 1973-84-9.
6. The court and every judge of it also has power to grant to a defendant in respect of an equitable estate or right or other matter of equity, and also in respect of a legal estate, right or title claimed or asserted by him, all relief against a plaintiff or petitioner as the defendant has properly claimed by his pleading, and as the court or any judge of it might have granted in a suit instituted for that purpose by the same defendant against the same plaintiff or petitioner; and also all relief relating to or connected with the original subject of the cause or matter and in similar manner claimed against any other person, whether already a party to the same cause or matter or not, who has been properly served with notice in writing of the claim under a rule of court or any order of the court as might properly have been granted against the person if he had been made a defendant to a cause properly instituted by the same defendant for the like purpose. Every person served with that notice shall then be deemed a party to the cause or matter, with the same rights in respect of his defence against the claim as if he had been sued in the ordinary way by the defendant.
Historical Note(s): RS1960-213-2; 1973-84-9.
7. The court and every judge of it shall recognize and take notice of all equitable estates, titles and rights and all equitable duties and liabilities appearing incidentally in the course of any cause or matter in the same manner in which the court sitting in equity would have recognized and taken notice of the same in any suit or proceeding properly instituted therein before April 29, 1879.
Historical Note(s): RS1960-213-2; 1973-84-9.
8. No cause or proceeding pending in the court shall be restrained by prohibition or injunction; but every matter of equity on which an injunction against the prosecution of that cause or proceeding might have been obtained before April 29, 1879, either conditionally or unconditionally, may be relied on by way of defence. Nothing in this Act shall disable the court from directing a stay of proceedings in any cause or matter pending before it if it thinks fit and any person, whether a party or not to that cause or matter, who would have been entitled, but for this Act, to apply to the court to restrain the prosecution of it, or who may be entitled to enforce, by attachment or otherwise, any judgment, decree, rule or order, contrary to which all or any part of the proceedings in the cause or matter may have been taken, is at liberty to apply to the court, by motion in a summary way, for a stay of proceedings in the cause or matter, either generally or so far as may be necessary for the purposes of justice. The court shall make any order as is just.
Historical Note(s): RS1960-213-2; 1973-84-9.
9. Subject to this Act, the court and every judge of it shall recognize and give effect to all legal claims and demands and all estates, titles, rights, duties, obligations and liabilities existing by the common law or by any custom or created by any Statute, in the same manner as they would have been recognized and given effect to in the court if this Act had not passed.
Historical Note(s): RS1960-213-2; 1973-84-9.
10. The court, in the exercise of its jurisdiction in any cause or matter before it, shall grant, either absolutely or on reasonable conditions that to it seem just, all remedies any of the parties may appear to be entitled to in respect of any legal or equitable claim properly brought forward by them in the cause or matter so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of the matters avoided.
Historical Note(s): RS1960-213-2; 1973-84-9.
11. [Repealed 1988-42-3.]
12. An estate for life without impeachment of waste shall not confer or be deemed to have conferred on the tenant for life a legal right to commit waste of the description known as equitable waste, unless an intention to confer that right expressly appears by the instrument creating the estate.
Historical Note(s): RS1960-213-2; 1973-84-9.
13. There shall not be any merger by operation of law only of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity.
Historical Note(s): RS1960-213-2; 1973-84-9.
14. A mortgagor entitled for the time being to the possession or receipt of the rents and profits of land, as to which no notice of his intention to take possession or to enter into the receipt of those rents and profits has been given by the mortgagee, may sue for possession or for the recovery of the rents or profits, or to prevent or recover damages in respect of a trespass or other wrong relative thereto, in his own name only, unless the cause of action arises on a lease or other contract made by him jointly with any other person.
Historical Note(s): RS1960-213-2; 1973-84-9.
15. Notwithstanding any stipulation to the contrary, where a mortgagor is entitled to redeem, he may require the mortgagee, or his personal representatives or assigns, instead of giving a certificate of payment or reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person as the mortgagor directs and the mortgagee is bound to assign and convey accordingly. Any mortgagee in possession so required to assign, transfer and convey shall incur no legal liability which he would not have incurred if he had then executed a release of the mortgage.
Historical Note(s): RS1960-213-2; 1973-84-9.
16. The court may, before or after judgment in a proceeding
(a) by a mortgagee, for the foreclosure of the equity of redemption in mortgaged property; or
(b) by a vendor of land, where a claim for the cancellation of the agreement is made, with or without a claim for the forfeiture of money paid on account of the purchase price,
on the application of a person who has an interest in the property or land, direct a sale of the property or land on the terms the court considers just.
Historical Note(s): RS1960-213-2; 1969-35-14; 1973-84-9; 1976-33-94.
16.1 (1) In this section
"agreement for sale" means a contract for the sale of an interest in land under which the purchaser agrees to pay the purchase price over a period of time, in the manner stated in the contract, and on payment of which the vendor is obliged to convey the interest in land to the purchaser, but does not include a contract under which
(a) the purchase price is payable in less than 6 months from the time the contract was entered into, and
(b) the purchaser is not, during the 6 month period, entitled to possession of the land that is the subject matter of the contract;
"foreclosure" means a proceeding, commenced by a vendor under an agreement for sale, in which the relief claimed is an order for one or more of the following:
(a) specific performance of the agreement,
(b) cancellation of the agreement, or
(c) determination of the agreement;
"redemption" means the payment, fulfillment or performance by the purchaser or person claiming through him, of all obligations secured by the property and, where there has been a breach or default of the purchaser or person claiming through him, by payment of
(a) all expenses or disbursements reasonably made or incurred by the vendor in respect of the property, including taxes, repairs and payments in respect of other encumbrances, and
(b) reasonable compensation for costs incurred by the vendor in bringing a proceeding or seeking to enforce the obligations of the purchaser
to the extent provided for in the agreement for sale or the Rules of Court.
(2) Where, in a foreclosure proceeding, the purchaser or person claiming through him are given time to redeem, the court shall order that the time for redemption be 6 months, unless the court considers, in the circumstances, that a shorter or longer period is justified.
(3) The court may, before pronouncing an order absolute in a foreclosure proceeding, extend the redemption period ordered under subsection (2).
(4) A proceeding by a vendor to enforce a personal convenant in an agreement for sale, taken after entry of an order nisi in a foreclosure proceeding, does not affect the right of the vendor to obtain an order absolute in the foreclosure proceeding.
(5) Notwithstanding the pronouncement of an order absolute or section 28 of the Property Law Act, in any foreclosure proceeding brought on an agreement for sale, the court shall have the same discretion to reopen the foreclosure and allow the purchaser to redeem as it would have had if the foreclosure proceeding had been brought to enforce a mortgage.
(6) Notwithstanding any term or provision of an agreement for sale to the contrary, a vendor may only cancel, rescind or otherwise determine an agreement for sale by obtaining an order to that effect in a foreclosure proceeding.
Historical Note(s): 1985-10-5, effective April 1, 1985 (B.C. Reg. 73/85); 1985-51-35, effective July 11, 1985 (B.C. Reg. 223/85).
17. Where an action is brought on a bond for payment of the money secured by a mortgage or performance of its covenants or where an action of ejectment is brought by a mortgagee or his heirs, personal representatives or assigns for the recovery of the possession of mortgaged land, and no suit is pending concerning the foreclosing or redeeming of the mortgaged land, if the person having the right to redeem the mortgaged land appears and becomes a defendant in the action and at any time, pending the action, pays to the mortgagee or, in case of his refusal, brings into court where the action is pending all the principal money and interest due on the mortgage, and all costs expended in any proceeding on the mortgage (the money for principal, interest and costs to be computed by the court), the money so paid to the mortgagee or brought into court shall be in full satisfaction and discharge of the mortgage, and the court shall and may discharge the mortgagor or defendant from the mortgage accordingly; and shall and may, by the rules of the court, compel the mortgagee, at the expense of the mortgagor, to assign, surrender or reconvey the mortgaged land and the estate and interest that the mortgagee has in it, and deliver up all deeds, evidences and writings in his custody relating to the title of the mortgaged land to the mortgagor who has paid or brought the money into the court, his heirs, personal representatives or to the person he appoints for that purpose.
Historical Note(s): RS1960-249-2.
18. Where a proceeding is brought by a person having or claiming an estate, right or interest in land under a mortgage of the land, to compel the defendant in the proceeding, who claims a right to redeem, to pay the plaintiff in the proceeding the principal money and interest due on the mortgage or the principal money and interest due on the mortgage together with any money due on an encumbrance or specialty, charged or chargeable on the equity of redemption, and in default of payment to foreclose the defendant of his right to redeem the mortgaged land, the court, on application made to it by the defendant with a right to redeem the mortgaged land and on his admitting the right and title of the plaintiff, may and shall at any time before the hearing make an order or give a judgment that the court could have made in case the proceeding had been regularly brought to a hearing or trial. All parties to the action are bound by the order or judgment, as if made or given by the court at the hearing or trial of the proceeding.
Historical Note(s): RS1960-249-3.
18.1 In a proceeding for the foreclosure of the equity of redemption in mortgaged property the court shall, unless exceptional circumstances exist, order that the payment of interest is to be calculated and payable to the date full payment is made to redeem the property.
Historical Note(s): 1981-10-28, proclaimed effective July 30, 1981.
18.2 (1) In this section
"foreclosure", in respect of an agreement for sale, as defined in section 16.1 (1), means a foreclosure as defined in that section;
"mortgage" includes an agreement for sale as defined in section 16.1 (1).
(2) In a foreclosure proceeding where costs are awarded the court may,
(a) notwithstanding any covenant or term of a mortgage respecting the payment and calculation or manner of determining costs and expenses in, arising out of or in connection with a foreclosure proceeding, and
(b) instead of making an order in accordance with that covenant or term,
order that costs be payable, at the discretion of the court, on a party and party or solicitor and client basis taxed under Appendix B or C, respectively, of the Rules of Court, and the court may make no order for costs where it would otherwise make no order but for the covenant or term referred to in this subsection.
(3) This section applies to all proceedings that have been commenced at the time this section comes into force other than a proceeding where a court has made an order for costs.
Historical Note(s): 1985-65-8, effective April 14, 1986 (B.C. Reg. 15/86).
18.3 (1) In this section
"foreclosure"
(a) does not include a proceeding to enforce or realize a security under a debenture where that security is land, and
(b) in respect of an agreement for sale, as defined in section 16.1 (1), means the foreclosure as defined in that section;
"mortgage" includes an agreement for sale as defined in section 16.1 (1).
(2) Unless the court otherwise orders, every foreclosure proceeding on a mortgage shall be commenced,
(a) where the land that is the subject of the foreclosure proceeding is situated in a municipality and there is a registry of the Supreme Court located in that municipality, at that registry, or
(b) where the land that is the subject of the foreclosure proceeding is not situated in a municipality or, if it is situated 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 situated,
and all applications in the proceedings shall, 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 shall be deemed to be the same registry.
(4) Where 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 where, 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).
Historical Note(s): 1985-65-9, effective April 14, 1986 (B.C. Reg. 15/86).
19. This and the preceding 2 sections do not extend to a case where the person against whom the redemption is requested insists, in writing by himself or his attorney, agent or solicitor, delivered to the solicitor for the other side before the money is brought into the court, either that the party requesting a redemption has not a right to redeem, or that the land is chargeable with other or different principal sums than what appear on the face of the mortgage or are admitted on the other side, or to any case where the right of redemption to the mortgaged land is controverted or questioned by or between different defendants in the same proceeding and do not prejudice a subsequent mortgagee or encumbrancer, notwithstanding anything in the preceding 2 sections to the contrary.
Historical Note(s): RS1960-249-4.
20. The person entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by fire shall, on loss or damage by fire, have the same advantage from any then subsisting insurance relating to the building covenanted to be insured, effected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any person claiming under him but not effected in conformity with the covenant, as he would have from an insurance effected in conformity with the covenant.
Historical Note(s): RS1960-213-2; 1973-84-9.
21. The court may relieve against all penalties and forfeitures, and in granting the relief impose any terms as to costs, expenses, damages, compensations and all other matters the court thinks fit.
Historical Note(s): RS1960-213-2; 1973-84-9.
21.1 (1) Notwithstanding an agreement to the contrary, where by reason of a default in payment of any money due under, or in the observance of a covenant contained in
(a) and (b) [Repealed 1990-11-72.]
(c) a mortgage of land, or
(d) an agreement for sale of land,
the payment of money or the doing of anything is or may be required at an earlier time than would be the case if the default had not occurred, then, in a proceeding for the enforcement of rights under the instrument, the court may, before a final disposition of the proceeding, relieve any person from the consequence of the default.
(2) In granting relief under subsection (1), the court may impose any terms as to costs, expenses, damages, compensations and all other matters it considers appropriate.
(3) This section applies to an instrument referred to in subsection (1) (a) to (d) made before or after the coming into force of this section, and to proceedings commenced before or after the coming into force of this section.
(4) Section 24 does not apply in an application for relief under this section.
Historical Note(s): 1980-1-15, proclaimed effective September 5, 1980; 1990-11-72.
22. The court or any judge of it may relieve against a forfeiture for breach of a covenant or condition to insure against loss or damage by fire where no loss or damage by fire has happened and the breach has, in the opinion of the court, been committed through accident, mistake or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the court or judge in conformity with the covenant to insure, on terms the court or judge may think fit.
Historical Note(s): RS1960-213-2; 1973-84-9.
23. The court or a judge of it, where relief is granted, shall direct a record of the relief having been granted to be made by endorsement on the lease or otherwise.
Historical Note(s): RS1960-213-2; 1973-84-9.
24. The court or judge does not have power under this Act to relieve the same person more than once in respect of the same covenant or condition, nor does it have power to grant any relief under this Act where a forfeiture under the covenant in respect of which relief is sought has been already waived out of court in favour of the person seeking the relief.
Historical Note(s): RS1960-213-2; 1973-84-9.
25. Where a licence to do an act which without that licence would create a forfeiture, or give a right to re-enter, under a condition or power reserved in a lease has at any time after March 25, 1881, been given or is given to any lessee or his assigns, the licence, unless otherwise expressed, extends only to the permission actually given, or to a specific breach of a proviso or covenant made or to be made, or to the actual assignment, underlease or other matter specially authorized to be done, but not so as to prevent a proceeding for a subsequent breach, unless otherwise specified in the licence. All rights under covenants and powers of forfeiture and re-entry in the lease remain in full force and are available against a subsequent breach of covenant or condition, assignment, underlease or other matter not specially authorized or made unpunishable by the licence, in the same manner as if no licence had been given. The condition or right of re-entry is and remains in all respects as if the licence had not been given, except for the particular matter authorized to be done.
Historical Note(s): RS1960-213-2; 1973-84-9.
26. Any person may assign personal property, now by law assignable, including chattels real, directly to himself and another person, by the same means as he might assign the same to another.
Historical Note(s): RS1960-213-2; 1973-84-9.
27. Stipulations in contracts, as to time or otherwise, which are not deemed to be or to have become of the essence of the contracts according to the rules of equity, shall receive the same construction and effect as they would receive in equity.
Historical Note(s): RS1960-213-2; 1973-84-9.
28. In any cause or proceeding, not in the Federal Court of Canada, for damages arising out of a collision between 2 ships, if both ships are found to have been in fault, the rules in force in the Federal Court, so far as they are at variance with the rules of the common law, shall prevail.
Historical Note(s): RS1960-213-2; 1973-84-9.
29. In questions relating to the custody and education of infants the rules of equity shall prevail.
Historical Note(s): RS1960-213-2; 1973-84-9.
30. Every person who, being surety for the debt or duty of another or being liable with another for any debt or duty, pays the debt or performs the duty is entitled to have assigned to him or to a trustee for him every judgment, specialty or other security which is held by the creditor in respect of the debt or duty, whether the judgment, specialty or other security is or is not deemed at law to have been satisfied by the payment of the debt or performance of the duty. The person is entitled to stand in the place of the creditor and to use all the remedies and, if necessary and on a proper indemnity, to use the name of the creditor in any action or other proceeding at law or in equity, in order to obtain from the principal debtor, or a co-surety, co-contractor or co-debtor indemnification for the advances made and loss sustained by the person who has paid the debt or performed the duty, and the payment or performance made by the surety is not pleadable in bar of any action or other proceeding by him. No co-surety, co-contractor or co-debtor is entitled to recover from any other co-surety, co-contractor or co-debtor, by the means aforesaid, more than the just proportion to which, as between those parties themselves, the last mentioned person is justly liable.
Historical Note(s): RS1960-213-2; 1973-84-9.
31. (1) No writ of execution and no writ of attachment against the goods of a debtor shall prejudice the title to the goods acquired by any person bona fide and for a valuable consideration before the actual seizure or attachment under the writ if the person, at the time when he acquired the title, had no notice that the writ, or any other writ under which the goods of the owner might be seized or attached, had been delivered to and remained unexecuted in the hands of the Sheriff or other officer entrusted and charged with the carrying out of the writ of execution.
(2) In this section "writ of execution" includes an order for seizure and sale issued under the Small Claims Rules.
Historical Note(s): RS1960-213-2; 1973-84-9; 1976-33-94; 1989-38-30.
32. An absolute assignment, by writing under the hand of the assignor, not purporting to be by way of charge only, of a debt or other legal chose in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or chose in action, is and shall be deemed to have been effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed, to pass and transfer the legal right to the debt or chose in action from the date of the notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor. If the debtor, trustee or other person liable in respect of the debt or chose in action has had notice that the assignment is disputed by the assignor or anyone claiming under him, or of any other opposing or conflicting claims to the debt or chose in action, he is entitled to call on the persons making the claim to interplead concerning the same or he may pay the same into court, under and in conformity with the provisions of the Trustee Act.
Historical Note(s): RS1960-213-2; 1973-84-9.
33. [Repealed 1985-10-6, effective April 1, 1985 (B.C. Reg. 73/85).]
34. Where the court has authority to order the execution of a deed, conveyance, contract, transfer or assignment of any property or other document or to endorse any negotiable instrument, the court may by order vest the property in the person and in the manner and for the estates, as would be done by that deed, conveyance, contract, assignment or transfer if executed. Thereupon the order has the same effect as if the legal or other estate or interest in the property had been actually conveyed by deed or otherwise for the same estate or interest to the person in whom it is ordered to be vested or, in the case of a chose in action, as if the chose in action had been actually assigned to that last mentioned person.
Historical Note(s): RS1960-213-2; 1973-84-9.
35. Where any person neglects or refuses to comply with a judgment or order directing him to execute any conveyance, contract or document or to endorse any negotiable instrument, the court may, on terms and conditions as may be just, order that the deed, conveyance, contract, assignment or other document shall be executed or that the negotiable instrument shall be endorsed by a person the court may nominate for that purpose. In that case the conveyance, contract, document or instrument executed or endorsed operates and shall be for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.
Historical Note(s): RS1960-213-2; 1973-84-9.
36. A mandamus or an injunction may be granted or a receiver or receiver manager appointed by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that the order should be made, and the order may be made either unconditionally or on terms and conditions the court thinks just. If an injunction is asked either before, at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, the injunction may be granted if the court thinks fit, whether the person against whom the injunction is sought is or is not in possession under any claim of title or otherwise or, if out of possession, does or does not claim a right to do the act sought to be restrained under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable.
Historical Note(s): RS1960-213-2; 1973-84-9; 1979-2-45.
37. No restraining order or injunction shall be granted on the ex parte application of a plaintiff or defendant against a railway company constructing or operating a railway in the Province, by which the work of actual construction or operation of the line of railway or any part of it shall or may be impeded or delayed, unless it is reasonably apparent that some irreparable damage will ensue.
Historical Note(s): RS1960-213-2; 1973-84-9.
38. On an application for a restraining order or injunction under section 37, where it is considered by the judge, on the hearing of the application, that the case is a proper one for the granting of a restraining order or injunction, he may, in place of granting it, order the railway company intended to be enjoined to pay into court a sum of money which will, in his opinion, be sufficient to compensate the applicant for the injunction against all loss, damage and costs which may be sustained by him by reason of the works or other acts complained of.
Historical Note(s): RS1960-213-2; 1973-84-9.
39. On the hearing of any application under section 37, the judge may, as a term of the granting of the restraining order or injunction or of the payment of the money into court, direct the applicant for the injunction to give security, to the satisfaction of the registrar of the Supreme Court, sufficient to indemnify the railway company to be enjoined from any loss, damage or costs which it may sustain by reason of the injunction, or on account of the circumstances under which the payment into court is directed. The judge may order further security to be given.
Historical Note(s): RS1960-213-2; 1973-84-9.
40. Part performance of an obligation either before or after a breach of it, when expressly accepted by the creditor in satisfaction or rendered in pursuance of an agreement for that purpose, though without any new consideration, shall be held to extinguish the obligation.
Historical Note(s): RS1960-213-2; 1973-84-9.
41. Generally in all matters not particularly mentioned in this Act in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.
Historical Note(s): RS1960-213-2; 1964-27-2; 1973-84-9.
42. (1) A rule of law that a lease, grant, demise or agreement is void because its term is uncertain does not apply and shall be deemed never to have applied to mining, petroleum or natural gas leases or, without limiting the generality of the foregoing, to a lease, grant, demise or agreement leasing a Crown granted mineral claim or other mining or mineral property, or granting the right to use and occupy that property, and on, in or from it to prospect for, explore, mine, win, work, mill, make merchantable, carry away or dispose of metals, ores, minerals, petroleum or natural gas or to use the property for any purpose connected therewith.
(2) Subsection (1) is applicable to instruments coming into operation before, on and after April 3, 1947.
Historical Note(s): RS1960-213-2,3; 1973-84-9.
43. (1) In this section
"employee" includes a former employee who is participating in a plan;
"employer" includes a group of employers and the trustee under a plan;
"plan" means an employee pension, retirement, welfare or profit sharing fund, trust or plan now or hereafter created.
(2) Where, in accordance with the terms of a plan, an employee has designated a person to receive a benefit payable under the plan in the event of the employee's death
(a) the designation shall be validly executed if in writing signed by the employee, and shall not be affected in any way by a will or other testamentary instrument executed by the employee after the making of the designation;
(b) the employer is discharged on paying the amount of the benefit to the person designated; and
(c) the person designated may enforce payment of the benefit, but the employer is entitled to set up any defence he could have set up against the employee or his personal representatives.
(3) An employee may from time to time alter or revoke a designation made under a plan, but only in the manner set forth in the plan.
(4) This section does not apply to a designation of a beneficiary to which the Insurance Act applies.
Historical Note(s): RS1960-213-2; 1973-84-9; 1975-53-26.
44. Where a person gives, devises or bequeaths property in trust for a charitable purpose that is linked conjunctively or disjunctively in the instrument by which the trust is created with a noncharitable purpose, and the gift, devise or bequest would be void for uncertainty or remoteness, the gift, devise or bequest is not thereby invalid but operates solely for the benefit of the charitable purpose.
Historical Note(s): 1964-27-3; 1973-84-9.
45. A claimant under a labour and material bond has a cause of action against the surety named in the bond in the event that the principal named in the bond defaults in his obligations under it and may commence an action against the surety on his own behalf and on behalf of other claimants to recover the amount of the claim.
Historical Note(s): 1964-27-3; 1973-84-9.
46. (1) In this section
"annuitant" means annuitant as defined in section 146 (1) of the Income Tax Act (Canada);
"registered plan" means a retirement savings plan that
(a) was created before, or is created after, this section comes into force; and
(b) is registered pursuant to the Income Tax Act (Canada).
(2) Where, in accordance with the terms of a registered plan, an annuitant designated a person to receive a benefit payable under the registered plan in the event of the annuitant's death,
(a) the designation shall be effective if in writing signed by the annuitant or contained in a will or other testamentary instrument;
(b) the person designated may enforce payment of the benefit;
(c) the benefit is not part of the estate of the annuitant,
and the provisions of section 143 (1) to (3) of the Insurance Act apply, with the necessary changes and so far as they are applicable, to that designation.
(3) An annuitant may from time to time alter or revoke a designation made under a registered plan.
(4) This section does not apply to a designation of a beneficiary to which the Insurance Act applies.
(5) This section is retroactive and shall be deemed to have been in force on, from, and after January 1, 1971.
Historical Note(s): 1973-84-9; 1974-87-24; 1975-53-26; 1984-25-19, see transitional provision, 1984-25-69.
46.1 (1) In this section "registered plan" means a home ownership savings plan that
(a) was created before, or is created after, this section comes into force, and
(b) is registered pursuant to the Income Tax Act (Canada).
(2) Where, in accordance with the terms of a registered plan, a person designated a spouse to receive a benefit payable under the registered plan in the event of the person's death,
(a) the designation is effective if it is in writing signed by the person or is contained in a will or other testamentary instrument,
(b) the spouse may enforce payment of the benefit, and
(c) the benefit is not part of the person's estate,
and the provisions of section 143 (1) to (3) of the Insurance Act apply to that designation.
(3) A person may from time to time alter or revoke a designation made under a registered plan.
(4) This section does not apply to a designation of a beneficiary to which the Insurance Act applies.
(5) This section applies to a designation made before or after this section comes into force but, where the designation was made before this section comes into force, it only applies if the registered plan is still in existence on the date this section comes into force.
Historical Note(s): 1981-10-29, proclaimed effective July 30, 1981.
46.2 (1) In this section
"annuitant" means annuitant as defined in section 146.3 of the Income Tax Act (Canada);
"registered plan" means a retirement income fund that
(a) was created before, or is created after, this section comes into force, and
(b) is registered pursuant to the Income Tax Act (Canada).
(2) Subject to subsection (5), where, in accordance with the terms of a registered plan, an annuitant designates a person to receive a benefit payable under the registered plan in the event of the annuitant's death,
(a) the designation shall be effective if it is in writing and is signed by the annuitant, or is contained in a will or other testamentary instrument,
(b) the person designated may enforce payment of the benefit, and
(c) the benefit is not part of the estate of the annuitant,
and the provisions of section 143 (1) to (3) of the Insurance Act apply, with the necessary changes and so far as they are applicable, to that designation.
(3) An annuitant may from time to time alter or revoke a designation made under a registered plan.
(4) This section does not apply to a designation of a beneficiary to which the Insurance Act applies.
(5) A designation that
(a) was made in writing after June 29, 1978 and before this section came into force, and
(b) would have been valid under this section had this section been in force at the time the designation was made,
is valid if the person making the designation is living on the day this section comes into force.
Historical Note(s): 1984-26-11, effective June 1, 1984 (B.C. Reg. 161/84).
47. In proceedings involving the adoption, guardianship, custody, access to or maintenance of a child or proceedings under the Family and Child Service Act, the court shall consider the best interests of the child.
Historical Note(s): 1974-87-24.
48. (1) Where a party has a demand recoverable against 2 or more persons jointly liable it is sufficient if any of the persons is served with process, and an order may be obtained and execution issued against the person served notwithstanding that others jointly liable may not have been served or sued or may not be within the jurisdiction of the court.
(2) The obtaining of an order against any one person jointly liable does not release any others jointly liable who have been sued in the proceeding, whether the others may have been served with process or not.
(3) Every person against whom an order has been obtained, and who has satisfied the order, is entitled to demand and recover in the court contribution from any other person jointly liable with him.
Historical Note(s): 1976-33-94.
49. Where the performance of a contract is suspended until the fulfilment of a condition precedent, a party to the contract may waive the fulfilment of the condition precedent, notwithstanding that the fulfilment of the condition precedent is dependent on the will or actions of a person who is not a party to the contract if
(a) the condition precedent benefits only that party to the contract;
(b) the contract is capable of being performed without fulfilment of the condition precedent; and
(c) where a time is stipulated for fulfilment of the condition precedent, the waiver is made before the time stipulated, and where a time is not stipulated for fulfilment of the condition precedent, the waiver is made within a reasonable time.
Historical Note(s): 1978-11-8.
50. (1) No proceeding for possession or for a property interest shall be brought in respect of works of art or objects of cultural or historical significance brought into the Province for temporary public exhibit.
(2) Subsection (1) does not apply
(a) to proceedings in respect of a contract for transportation or warehousing or exhibition in the Province of the work or object, or
(b) to a work or object which is offered for sale.
Historical Note(s): 1980-1-16, proclaimed effective October 2, 1980.
51. (1) In this section
"discount rate" means the rate, expressed as a percentage, used in calculating the present value of future damages;
"future damages" means damages to compensate for pecuniary losses to be incurred, or expenditures to be made, after the date of the trial judgment in a proceeding.
(2) The Chief Justice of the Supreme Court may make regulations prescribing
(a) a discount rate which shall be deemed to be the future difference between the investment rate of interest and the rate of increase of earnings due to inflation and general increases in productivity, and
(b) a discount rate which shall be deemed to be the future difference between the investment rate of interest and the rate of general price inflation.
(3) In a proceeding, the discount rate prescribed under subsection (2) (a) shall be used in calculating the present value of future damages that are intended to compensate for or are determined with reference to
(a) loss of future earnings because of partial or total loss of income earning capacity, or
(b) loss of dependency under the Family Compensation Act.
(4) The discount rate prescribed under subsection (2) (b) shall be used in calculating the present value of all future damages other than those referred to in subsection (3).
Historical Note(s): 1981-10-30, proclaimed effective July 30, 1981.
52. (1) In an action for the recovery of specific property, other than land, the court may, where it considers it just and on any terms as to security or otherwise it considers just, order the person from whom recovery of the property is claimed to surrender it to the claimant pending the outcome of the action.
(2) Where an order is made under subsection (1) and the action is dismissed,
(a) the claimant shall
(i) return the property to the person who surrendered it, and
(ii) compensate that person for any loss suffered or damage sustained by him by reason of his surrender of the property or compliance with another order respecting the property, and
(b) the court may order that any security provided by or on behalf of the claimant under subsection (1) be applied in payment of the compensation for loss or damage.
Historical Note(s): 1982-46-25, proclaimed effective September 7, 1982.
53. No Cognovit Actionem or Warrant of Attorney to confess judgment has any force or effect.
Historical Note(s): 1985-1-6, effective April 1, 1985 (B.C. Reg. 69/85).
54. (1) In this section "disposition" does not include
(a) the creation, assignment or renunciation of an interest under a trust, or
(b) a testamentary disposition.
(2) This section does not apply to
(a) a contract to grant a lease of land for a term of 3 years or less,
(b) a grant of a lease of land for a term of 3 years or less, or
(c) a guarantee or indemnity arising by operation of law or imposed by statute.
(3) A contract respecting land or a disposition of land is not enforceable unless
(a) there is, in a writing signed by the party to be charged or by his agent, both an indication that it has been made and a reasonable indication of the subject matter,
(b) the party to be charged has done an act, or acquiesced in an act of the party alleging the contract or disposition, that indicates that a contract or disposition not inconsistent with that alleged has been made, or
(c) the person alleging the contract or disposition has, in reasonable reliance on it, so changed his position that an inequitable result, having regard to both parties' interests, can be avoided only by enforcing the contract or disposition.
(4) For the purposes of subsection (3) (b), an act of a party alleging a contract or disposition includes a payment or acceptance by him or on his behalf of a deposit or part payment of a purchase price.
(5) Where a court decides that an alleged gift or contract cannot be enforced, it may order either or both of
(a) restitution of a benefit received, and
(b) compensation for money spent in reliance on the gift or contract.
(6) A guarantee or indemnity is not enforceable unless
(a) it is evidenced by writing signed by, or by the agent of, the guarantor or indemnitor, or
(b) the alleged guarantor or indemnitor has done an act indicating that a guarantee or indemnity consistent with that alleged has been made.
(7) A writing can be sufficient for the purpose of this section even though a term is left out or is wrongly stated.
Historical Note(s): 1985-10-7, effective April 1, 1985 (B.C. Reg. 73/85).
55. (1) For all purposes of the law of British Columbia, a married man has a legal personality that is independent, separate and distinct from that of his wife and a married woman has a legal personality that is independent, separate and distinct from that of her husband.
(2) A married person has and shall be accorded legal capacity for all purposes and in all respects as if the person were unmarried.
(3) Without limiting the generality of subsections (1) and (2),
(a) each of the parties to a marriage has the like right of action in tort against the other as if they were not married,
(b) a married woman is capable of acting as guardian ad litem or next friend as if she were an unmarried woman, and
(c) a married woman is capable of acquiring a domicile independent from that of her husband and the same rules shall be applied to determine the domicile of a married woman as for a married man.
(4) The purpose of subsections (1) and (2) is to make the same law apply, and apply equally, to married men and married women and to remove any difference resulting from any common law rule or doctrine, and subsections (1) and (2) shall be so construed.
(5) Subsection (3) (a) does not apply where the cause of action arose before this section comes into force.
Historical Note(s): 1985-68-80, effective April 17, 1985 (B.C. Reg. 392/85).
56. (1) Subject to the Adoption Act and Family Relations Act, for all purposes of the law of British Columbia,
(a) a person is the child of his natural parents,
(b) any distinction between the status of a child born inside marriage and a child born outside marriage is abolished, and
(c) the relationship of parent and child and kindred relationships flowing from that relationship shall be determined in accordance with this subsection.
(2) This section applies to an enactment enacted before, on or after the day this section comes into force and to an instrument made on or after the day this section comes into force, but it does not affect
(a) an instrument made before this section comes into force, or
(b) a disposition of property made before this section comes into force.
(3) For the purpose of construing an instrument or enactment, a reference to a person or a group or class of person described in terms of relationship to another person by blood or marriage shall be construed to refer to and include a person who comes within the description by reason of the relationship of parent and child as determined under subsection (1).
Historical Note(s): 1985-68-80, effective April 17, 1985 (B.C. Reg. 392/85).
[Editorial Note(s): re section 56: see also draft uniform Child Status Act to be found as stated in the Users Guide to Statutes in the beginning of this volume.]
57. In section 58
"electing party" means a party to a contract who, in response to a requirement by a requiring party, makes an election under section 58 (1);
"notice of protest" means a notice, given under section 58 (2), that performance is under protest;
"requiring party" means a party to a contract who communicates to another party to the contract a requirement respecting that other party's performance of the contract.
Historical Note(s): 1987-42-51, effective October 14, 1987 (B.C. Reg. 371/87).
58. (1) Where a dispute arises between the parties to a contract respecting the obligations of a party under the contract, the party whose obligations are disputed may elect to perform the contract in accordance with the requirements of the other party, and the electing party is then entitled to compensation from the requiring party for any
(a) service performed,
(b) property supplied or transferred,
(c) liability assumed, and
by the electing party in the course of that performance beyond that which the contract required him to do.
(2) An electing party is not entitled to compensation under subsection (1) unless, within a reasonable time after he is informed that the performance is required, he gives notice to the requiring party that the performance is under protest.
(3) A contract may specify, with respect to the giving of a notice of protest, any or all of the following:
(a) the form of the notice;
(b) a time within which the notice must be received by the requiring party;
(c) the persons to whom the notice must be given;
(d) the manner in which the notice is to be given.
(4) A notice of protest has no effect unless it is communicated in accordance with every specification referred to in subsection (3) that is included in the contract.
(5) A right to compensation under this section is not affected by a decision or determination by a person connected with the administration of the contract unless he has no interest in the subject matter of the contract and is independent of every person who has an interest in the subject matter of the contract.
(6) Nothing in this section limits the right of a party to recover compensation on any other basis.
Historical Note(s): 1987-42-51, effective October 14, 1987 (B.C. Reg. 371/87).
59. No action is maintainable for damages for loss of servitium and without restricting the generality of the foregoing, the action per quod servitium amisit is abolished.
Historical Note(s): 1988-42-4.
60-62. [Not in force.]
63. (1) In the provisions adopted under subsection (2) "receiver" includes "receiver-manager".
(2) Sections 64, 65, 66 (1) and (3), 68 (2) and 69 (2) and (3) of the Personal Property Security Act are adopted for the purposes of a receivership of property to which the Personal Property Security Act does not apply.
(3) The powers referred to in provisions adopted under subsection (2) are in addition to any other powers a court may exercise in its jurisdiction over receivers.
Historical Note(s): 1990-11-73.
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