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AR 104/2008 GENERAL REGULATION

(Consolidated up to 211/2014)

ALBERTA REGULATION 104/2008

Unclaimed Personal Property and Vested Property Act

GENERAL REGULATION

Table of Contents

                1      Interpretation

                2      Exclusions

                3      Trusts

                4      Exemption


                5      Valuation

                6      Rules respecting abandonment of personal property

                7      Indication of apparent owner’s interest

                8      Notice to apparent owner

                9      Fees and expenses

              10      Costs of inspection

              11      Compensation

              12      Reports and records

              13      Transfer of security, etc.

              14      Negotiable instrument

              15      Voluntary payment, transfer or delivery

              16      Service

              17      Registered interests in land

              18      Vested interest in land

              19      Administration of land

              20      Identification

              21      Property identification number

              22      Claims

              23      Application to Court of Queen’s Bench

              24      Expiry

              25      Coming into force

Interpretation

1(1)  In this Regulation,

                               (a)    “Act” means the Unclaimed Personal Property and Vested Property Act;

                              (b)    “fair market value” means the fair market value of unclaimed personal property as established in accordance with section 5(1);

                               (c)    “gift certificate” means a gift certificate of any sort and includes, without limitation, a gift card, stored value card or prepaid card that can be used to purchase goods or services at a particular store or group of stores;

                              (d)    “loyalty program” means a program or promotion by a particular company in which a person acquires an interest in tangible or intangible personal property as the result of the person’s collecting points, stamps, receipts or any other thing that has no intrinsic monetary value except when exchanged in accordance with the program or promotion for goods or services, but does not include a gift certificate or retail business credit;

                               (e)    “retail business credit” means a credit owed by a retail business to a consumer as a result of

                                        (i)    the return of merchandise by the consumer to the retail business, or

                                      (ii)    the cancellation of a transaction between the consumer and the retail business

                                       that may only be redeemed for goods or services.

(2)  For the purposes of the Act and this Regulation, “actual costs” means expenditures and disbursements made by a holder to a third party for the purpose of paying, transferring or delivering to the Minister personal property that is subject to the Act.

Exclusions

2(1)  An interest in personal property acquired as a result of a person’s participation in a loyalty program does not constitute tangible or intangible personal property for the purposes of the Act.

(2)  A gift certificate does not constitute tangible or intangible personal property for the purposes of the Act.

(3)  A retail business credit does not constitute tangible or intangible personal property for the purposes of the Act.

(4)  Abandoned vehicles to which section 69(8) or 77 of the Traffic Safety Act applies do not constitute tangible personal property for the purposes of the Act.

Trusts

3   Personal property in trusts governed by and personal property distributable from trusts pursuant to the following legislation do not constitute tangible or intangible personal property for the purposes of the Act:

                               (a)    the Cemeteries Act;

                              (b)    the Condominium Property Act;

                               (c)    regulations made under Part 11 and section 137 of the Fair Trading Act;

                              (d)    the Funeral Services Act;

                               (e)    the Mobile Home Sites Tenancies Act;

                               (f)    the Public Trustee Act;

                               (g)    the Real Estate Act;

                              (h)    the Residential Tenancies Act.

Exemption

4   The Act does not apply to the Supplementary Retirement Plan for Public Service Managers under the Financial Administration Act.

Valuation

5(1)  For the purposes of the Act and this Regulation, fair market value is,

                               (a)    where the unclaimed personal property is money, the actual amount of money in Canadian dollars, and if the money is in a foreign currency, the Canadian dollar equivalent,

                              (b)    where the unclaimed personal property is a negotiable instrument or another item that is equivalent to cash, the face value of the instrument or item,

                               (c)    where the unclaimed personal property is not an item that is equivalent to cash and has been sold by a holder or the Minister, the proceeds received for the unclaimed personal property, and

                              (d)    where the unclaimed personal property is not an item that is equivalent to cash and is retained in its original form by the holder, the value of the unclaimed personal property, as determined

                                        (i)    by a professional appraiser,

                                      (ii)    by reference to an appraisal guide,

                                     (iii)    by reference to historical records or the recorded value of the property on a financial statement of, or prepared for, the apparent owner, or

                                     (iv)    by any other method that the Minister considers reasonable.

(2)  For the purposes of section 3(4)(b) of the Act, the net value of unclaimed personal property is determined by subtracting any fees or charges authorized pursuant to section 6 of the Act from the fair market value of the unclaimed personal property.

(3)  If more than one item of unclaimed personal property held by a single holder is apparently owned by the same owner as shown in the records of the holder, the net value of each item of unclaimed personal property of that apparent owner must be totalled and the total is deemed to be the net value of the unclaimed personal property of that apparent owner for the purposes of section 3(4)(b) of the Act.

(4)  A holder is not obligated to pay, transfer or deliver unclaimed personal property to the Minister if

                               (a)    the Minister has determined that the net value of the property is less than the amount set out in section 3(4)(b) of the Act, or

                              (b)    the payment, transfer or delivery is prohibited by another enactment or by an order or judgment of an Alberta court or a court in a reciprocating jurisdiction as prescribed under the Reciprocal Enforcement of Judgments Act.

Rules respecting abandonment of personal property

6(1)  For the purposes of this section, “street certificate” means a security certificate that has been endorsed in blank and may be redeemed by the bearer of the certificate.

(2)  For the purposes of section 4(1) of the Act, the applicable periods after which personal property is presumed to be abandoned are as follows:

                               (a)    for a traveller’s cheque, 15 years after issuance;

                              (b)    for a money order, 7 years after issuance;

                               (c)    subject to clause (d), for a security or any other equity interest in a business organization, the later of

                                        (i)    7 years after the earlier of the date of the first

                                              (A)    dividend, share split or other distribution that was unclaimed by the apparent owner, and

                                              (B)    event or action that the apparent owner did not respond to or complete as required,

                                           and

                                      (ii)    one year after the date specified by the Minister for the purposes of this clause;

                           (c.1)    for the contents of a safety deposit box, the later of

                                        (i)    7 years after the date of the last indication by the apparent owner of interest in the contents of the safety deposit box, and

                                      (ii)    one year after the date specified by the Minister for the purposes of this clause;

                              (d)    for a street certificate, 5 years after the dissolution of the corporation that issued the certificate if the bearer has not redeemed the value of the certificate in a distribution of the property of the corporation on dissolution;

                               (e)    for a debt of a business organization that accrues interest, 5 years after the date of the earliest payment that was unclaimed by the apparent owner;

                               (f)    for a demand deposit, certificate of deposit, guaranteed investment certificate, guaranteed investment confirmation or other deposit made for a fixed period that has matured, including a deposit that is automatically renewable, 5 years after the later of

                                        (i)    maturity, and

                                      (ii)    the date of the last indication by the apparent owner of interest in the deposit;

                               (g)    for a savings or other deposit that does not have a fixed period or does not mature, 5 years after the date of the last indication by the apparent owner of interest in the deposit;

                              (h)    for an amount owed by an insurer on a life or endowment insurance policy or an annuity that has matured or terminated, but not including amounts owed by an insurer pursuant to clause (o) or (p), 3 years after the obligation to pay arose or, in the case of a policy or an annuity payable on proof of death, 3 years after the insured has attained, or would have attained if living, the limiting age under the mortality table on which the reserve is based;

                               (i)    for personal property of a corporation or society distributable in the course of a dissolution under section 228(1) of the Business Corporations Act, or personal property of a cooperative distributable in the course of a dissolution under section 328 of the Cooperatives Act, one year after the date of the dissolution;

                               (j)    for personal property to which section 270 of the Companies Act applies, one year after the personal property becomes distributable to the member or creditor, as the case may be, if during that time reasonable inquiry has failed to locate the owner or apparent owner of the personal property;

                              (k)    for personal property received by a court as proceeds of a class action and not distributed under the judgment, one year after the distribution date set out in the judgment;

                               (l)    for personal property held by a court, government or governmental organization, one year after the personal property becomes distributable;

                             (m)    for wages or other compensation for personal services, one year after the compensation becomes payable;

                              (n)    for a deposit or refund owed to a subscriber by a utility, one year after the deposit or refund becomes payable;

                              (o)    subject to clause (p), personal property in a registered retirement savings plan or a registered education savings plan under the Income Tax Act (Canada) or other plan or account that is qualified for tax deferral under the income tax laws of the jurisdiction in which the plan or account is registered or held, 3 years after the earliest of

                                        (i)    the date of distribution or attempted distribution of the personal property,

                                      (ii)    the date of the required distribution as stated in the plan or the trust agreement governing the plan, and

                                     (iii)    the date, if determinable by the holder, specified in the income tax laws of the jurisdiction in which the plan or account is registered or held, by which the distribution of the personal property must begin;

                              (p)    for money paid out of a registered retirement income fund under the Income Tax Act (Canada), 3 years after the date of payment although the money within the registered retirement income fund is not, while it remains within that fund, presumed to be abandoned;

                              (q)    for all other personal property, 5 years after the earlier of

                                        (i)    the date on which the apparent owner’s right to demand the personal property arises, and

                                      (ii)    the date on which the obligation to pay or distribute the personal property arises.

(3)  Where a street certificate has dividends payable, or a stock split of that street certificate results in additional security certificates being issued to the apparent owner of the street certificate, those dividends or additional security certificates may become unclaimed personal property in accordance with subsection (2)(c) notwithstanding that the street certificate itself is not unclaimed personal property for the purposes of the Act.

AR 104/2008 s6;213/2013;211/2014

Indication of apparent owner’s interest

7(1)  For the purposes of section 4(4)(e) of the Act, an indication of an apparent owner’s interest in personal property includes the following:

                               (a)    with respect to personal property described in section 6(2)(f), (h), (n) and (o), the modification by an apparent owner of an online account relating to the personal property, if the account requires a unique password for access;

                              (b)    with respect to personal property described in section 6(2)(e), the delivery of statements relating to the property to the apparent owner, unless the statements are returned as undeliverable.

(2)  Where a holder holds more than one item of personal property belonging to the same apparent owner, communication between the apparent owner and the holder in relation to any one of those items of personal property in the manner set out in section 4 of the Act or in this Regulation is an indication of the apparent owner’s interest in all of the apparent owner’s personal property held by that holder.

(3)  Where personal property is held by a holder pursuant to a rental agreement between the holder and the apparent owner which requires a regular automatic withdrawal of fees from an account belonging to the apparent owner, the successful regular withdrawal of those fees indicates the apparent owner’s interest in the personal property unless the account from which the fees are withdrawn has itself become unclaimed personal property of that apparent owner.

(4)  Where personal property is acquired by means of regular automatic withdrawals of premiums by a holder from an account belonging to the apparent owner of the personal property, the successful regular withdrawal of those premiums indicates the interest of the apparent owner in the personal property unless the account from which the premiums are withdrawn has itself become unclaimed personal property of that apparent owner.

Notice to apparent owner

8(1)  Notice to an apparent owner of unclaimed personal property for the purposes of section 5(2)(d) of the Act must contain

                               (a)    the name of the apparent owner, and

                              (b)    a statement that continued failure to communicate with the holder of the unclaimed personal property will result in a transfer of the unclaimed personal property to the Minister, and the estimated date on which that transfer will take place.

(2)  Notice to an apparent owner of unclaimed personal property for the purposes of section 9(3)(d) of the Act must contain

                               (a)    the name of the apparent owner, and

                              (b)    sufficient information regarding the claim process to allow the apparent owner to make a claim for the personal property.

(3)  Where a holder of unclaimed personal property does not know the identity of an apparent owner of the personal property, the holder is not required to give notice to any person.

Fees and expenses

9(1)  For the purposes of section 6(1)(b) and (2)(b) of the Act, a fee or charge imposed by a holder shall not exceed the actual costs of the service provided by the holder in relation to the personal property.

(2)  Costs incurred by a holder for paying, transferring or delivering unclaimed personal property to the Minister under section 7, 9 or 10 of the Act may be charged against the value of the personal property if

                               (a)    the costs are authorized by a written contract between the apparent owner and the holder, or

                              (b)    the costs are not authorized under clause (a) but the costs are reasonable in the opinion of the Minister and do not exceed the actual costs of the payment, transfer or delivery of the personal property to the Minister.

(3)  Where the Minister sells unclaimed personal property in accordance with section 8(3)(b) of the Act and the proceeds of sale are less than the sum of the holder’s outstanding fees and the Minister’s expenses for administering the personal property to that date, the proceeds must be distributed between the Minister and the holder on a pro rata basis.

(4)  Where the Minister under section 39 of the Act may charge fees and expenses against unclaimed personal property or vested property, the fees and expenses may be charged on a cost recovery basis.

(5)  Where vested land has been transferred under section 29 of the Act to another Minister, and that Minister is administering the vested land in accordance with another Act, that Minister may charge any fees and expenses authorized by the other Act in respect of the administration of the vested land and those fees and expenses are expenses for the purposes of section 39(4) of the Act.

Costs of inspection

10   Where an inspection under section 55 of the Act discloses that a holder was required but failed to comply with section 7 or 9 of the Act, the Minister may charge the costs of the inspection against the holder on a cost recovery basis.

Compensation

11   The maximum amount of compensation that may be provided for in an agreement under section 44(1) of the Act to locate or recover unclaimed personal property or vested property is 10% of the value of the personal property or vested property recovered.

Reports and records

12(1)  A report provided by a holder in accordance with section 7(2)(b)(iii) and (c) of the Act must include

                               (a)    all information relevant to the determination of the fair market value of the unclaimed personal property to be transferred to the Minister,

                              (b)    a declaration that notice was given to the apparent owner of the unclaimed personal property in accordance with section 5 of the Act or the reason why notice was not given,

                               (c)    the name of the apparent owner of the unclaimed personal property, if known to the holder,

                              (d)    all information known to the holder regarding the apparent owner that is relevant to identifying or locating the apparent owner,

                               (e)    any serial number or other unique identification number that appears on or is registered in respect of the unclaimed personal property, and

                               (f)    all other information relevant to identifying the unclaimed personal property or distinguishing it from other personal property.

(2)  Where unclaimed personal property that was held by a holder on December 31 of any year is returned to the owner of the personal property before the date on which a report for that year under section 7 of the Act in respect of the personal property is required to be provided to the Minister, the report filed under section 7 of the Act need not provide any information in respect of the returned property except a statement that property was returned by the holder to an owner between December 31 and the date of the report.

Transfer of security, etc.

13   For the purposes of section 7(2)(e)(i) of the Act, the transfer or delivery of a security or a security entitlement to the Minister is accomplished when the name of the account holder is changed from that of the apparent owner to the Minister and the Minister is notified of the change.

Negotiable instrument

14   Where a negotiable instrument has been transferred to the Minister as unclaimed personal property, the Minister may endorse the negotiable instrument in place of the apparent owner.

Voluntary payment, transfer or delivery

15(1)  A holder may apply in writing to the Minister for permission to pay, transfer or deliver personal property or vested property to the Minister in accordance with sections 10(1)(a) and 18(1) of the Act if

                               (a)    the holder is ceasing business operations and is unable to continue to hold the personal property or vested property, or

                              (b)    extraordinary circumstances exist that in the opinion of the Minister justify the payment, transfer or delivery.

(2)  A holder shall not pay, transfer or deliver personal property or vested property to the Minister under section 10(1) or 18(1) of the Act unless the Minister has given written permission to the holder to do so.

(3)  The Minister may give permission to a holder to pay, transfer or deliver to the Minister in accordance with section 10(1) of the Act intangible personal property the value of which is less than the amount set out in section 3(4)(b) of the Act if

                               (a)    the holder completes the report required under section 7(2) of the Act, and

                              (b)    in the opinion of the Minister circumstances exist that justify the payment, transfer or delivery.

Service

16(1)  A demand by the Minister under section 12(1) or 20(1) of the Act, or a determination made by the Minister under section 58(1) of the Act, may be served on a holder by fax if the holder has provided the Minister with a fax number.

(2)  A notice to an owner of land by the Minister under section 31(5) of the Act accepting or disclaiming an interest in land must be served by means of

                               (a)    personal service on the registered owner, or

                              (b)    registered mail addressed to the registered owner at the address recorded on the certificate of title of the land.

Registered interests in land

17   For the purposes of section 28(1)(l) of the Act, the following registered interests in respect of land may not be removed from the certificate of title of the land pursuant to the Act:

                               (a)    a restrictive covenant;

                              (b)    an easement;

                               (c)    a party wall agreement;

                              (d)    an encroachment agreement;

                               (e)    a memorandum indicating that the land’s use is restricted to cemetery purposes.

Vested interest in land

18   Without limiting the discretion of the Minister, the factors that the Minister may consider in deciding under section 31(2) of the Act whether to accept or disclaim an interest in land that has vested in the Crown include the following:

                               (a)    where the interest in land was formerly owned by a corporation, society or cooperative, the length of time that has elapsed since the corporation, society or cooperative was dissolved;

                              (b)    the value of the interest;

                               (c)    the administrative cost of maintaining the interest.

Administration of land

19(1)  Subject to subsection (2), for the purposes of sections 29(4) and 50(1) of the Act, a Minister to whom responsibility for vested land has been transferred must account for the revenue and expenses associated with the vested land in accordance with section 39(5) of the Act.

(2)  The Minister responsible for the Mines and Minerals Act may account for the revenue and expenses associated with vested interests in respect of mines and minerals transferred to that Minister in accordance with the processes established under that Act.

(3)  For the purposes of section 50(1) of the Act, the amount to be paid as equivalent value by a Minister to whom vested property has been transferred under section 29 of the Act pursuant to a successful claim for the property, where the property has been disposed of, is the difference between

                               (a)    the proceeds from the disposition of the property, and

                              (b)    any fees or expenses charged by a Minister in respect of  the administration of the vested property.

(4)  A sale or other disposition of vested land must be in accordance with the provisions of Schedule 11 to the Government Organization Act and any applicable regulations established under that Act.

Identification

20   The prescribed form of identification that must be carried by an authorized person for the purposes of section 55 of the Act is an identification card in the form required by the Minister that has been issued by the Minister.

Property identification number

21(1)  The Minister may assign a property identification number to each item of property listed in the Registry and, if the Minister does so, the property identification number is public information for the purposes of section 47(3)(b) of the Act.

(2)  For the purposes of section 47(3)(b) of the Act, the municipality stated in the last known address of the apparent owner and the date on which the property was transferred to the Minister are public information.

Claims

22(1)  The Minister may consider a claim made after the expiry of the claim period specified in section 48(8) of the Act where

                               (a)    the person making the claim was, at the time of the payment, transfer or delivery to the Minister of the property that is the subject of the claim,

                                        (i)    a minor, or

                                      (ii)    a person with a mental disability or disorder,

                                  and

                              (b)    the person referred to in clause (a) did not, during the claim period in respect of the property, have a legal representative, guardian or other person who could have made a claim on the person’s behalf.

(2)  A person may make a claim under section 49(1)(b) of the Act and the Minister may consider the claim if, in addition to the requirements of section 49(1) and (9) of the Act,

                               (a)    the former owner of the unclaimed personal property or vested property was a corporation or cooperative that has been dissolved,

                              (b)    the person making the claim

                                        (i)    was the sole shareholder of the corporation or the sole member or shareholder of the cooperative at the time of its dissolution, or

                                      (ii)    represents all of the shareholders of the corporation, or members and shareholders of the cooperative at the time of its dissolution, or has been granted an order by a court in Alberta, or in a jurisdiction that is a reciprocating jurisdiction pursuant to section 43(2) of the Act, stating that the person is authorized to make a claim on behalf of the shareholders of the corporation or members and shareholders of the cooperative,

                               (c)    the revival period set out in the Business Corporations Act in respect of a dissolved corporation or the Cooperatives Act in respect of a dissolved cooperative has elapsed and the corporation or cooperative has not been revived, and

                              (d)    the person making the claim can provide evidence to show to the satisfaction of the Minister that

                                        (i)    the person had reasonable grounds for not causing the corporation or cooperative to be revived within the revival period referred to in clause (c),

                                      (ii)    injustice or great hardship to the person or others has resulted or is likely to result if the claim is not considered, and

                                     (iii)    there is no other person with a better entitlement to the property that is the subject of the claim.

Application to Court of Queen’s Bench

23   An application to the Court of Queen’s Bench for the purposes of section 48(13) or 49(13) of the Act must be served on all persons who have made a claim respecting the unclaimed personal property or vested property that is identified in the application.

AR 104/2008 s23;164/2010

Expiry

24   For the purpose of ensuring that this Regulation is reviewed for ongoing relevancy and necessity, with the option that it may be repassed in its present or an amended form following a review, this Regulation expires on May 1, 2018.

Coming into force

25   This Regulation comes into force on the coming into force of the Unclaimed Personal Property and Vested Property Act.