Statutes of Newfoundland 1995 Chapter 30

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Statutes of Newfoundland 1995

CHAPTER 30 CHAPTER 30

AN ACT TO PROVIDE FOR THE TRANSFER OF THE TRUSTEESHIP AND AGENCY BUSINESS OF CENTRAL GUARANTY TRUST COMPANY TO TD TRUST COMPANY
(Assented to December 21, 1995)

Analysis

1. Short title

2. Private Act effect

3. Non-application

4. Substituted fiduciary

5. Real and personal property held in trust by Central Guaranty Trust Company

6. Legal proceedings

7. Rights of third parties

8. Notice

9. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

1. This Act may be cited as the TD Trust Company Act, 1995.

Private Act effect

2. Notwithstanding that it is enacted as a public Act, no provision of this Act affects the rights of a person except only as mentioned or referred to in this Act.

Non-application

3. (1) This Act does not apply to

(a) real or personal property owned or held by, vested in, or granted to Central Guaranty Trust Company, and held by Central Guaranty Trust Company exclusively for its own use and benefit, and not in trust for or for the benefit of another person or purpose;

(b) real or personal property that is held by Central Guaranty Trust Company under a document or trust to which section 4 applies that is situated outside the province, and a power, right, immunity, privilege or right of action that may be exercised by or against Central Guaranty Trust Company under a document or trust with respect to that property, but,

(i) for all property situated outside the province for which Central Guaranty Trust Company has been appointed, or is entitled to be appointed, by a court of the province, as personal representative of a deceased person, whether as executor, administrator or otherwise, TD Trust Company may, upon application to that court, be appointed personal representative in the place of Central Guaranty Trust Company with respect to that property, and

(ii) for all property situated outside the province not coming within subparagraph (i), but held by Central Guaranty Trust Company under a document or trust to which section 4 applies, for which the Trial Division has jurisdiction under section 33 of the Trustee Act to make an order for the appointment of a new trustee, TD Trust Company may, upon application to the Trial Division, be appointed trustee in the place of Central Guaranty Trust Company with respect to that property, and that appointment has for the purpose of the laws of the province the same effect as if made under section 33 of the Trustee Act,

and sections 2, 6 and 7 of this Act apply to every document and trust in respect of which an appointment is made under subparagraph (i) or (ii);

(c) trusts relating to money received for guaranteed investment and real or personal property held in trust with respect to that guaranteed investment of which Central Guaranty Trust Company is trustee;

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

(i) a trust indenture or other indenture to which section 4 would otherwise apply where Central Guaranty Trust Company is or may be a trustee and by virtue of which bonds, debentures or other evidences of indebtedness, warrants or rights have been or may be issued,

(ii) a document or trust to which section 4 would otherwise apply under which Central Guaranty Trust Company acts as trustee for unitholders in respect of oil or gas royalty trust funds, and

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

(e) an agreement or other document where Central Guaranty Trust Company is named or may be named as registrar or transfer agent, except for an appointment of Central Guaranty Trust Company as registrar or transfer agent of a mutual fund, other than the mutual funds described in subparagraph (d)(iii).

(2) Notwithstanding paragraph (1)(c), this Act applies to trusts relating to money received by Central Guaranty Trust Company for guaranteed investment and real or personal property held in trust by Central Guaranty Trust Company with respect to a registered home ownership savings plan, registered retirement savings plan, retirement income fund, deferred profit sharing plan or income averaging annuity contract, as those terms are defined in the Income Tax Act (Canada), or other registered or unregistered deferred income or employee benefit plan.

Substituted fiduciary

4. (1) Notwithstanding paragraph 3(1)(b) but subject to paragraphs 3(1)(a), (c), (d) and (e), effective January 1, 1993, Central Guaranty Trust Company is removed and TD Trust Company is appointed as successor trustee in or in respect of every trust, trust deed, trust agreement, instrument of creation, deed of appointment, settlement, assignment, will, codicil or other testamentary document, and every letters testamentary, letters probate, letters of administration, judgment, decree, order, direction, pension plan or benefit plan trust, investment management and investment administration account, agreement or contract, or appointment of a court, judge or other constituted authority, and every other document or trust however created, including every incomplete, inchoate or bare trust, and in every conveyance, mortgage, assignment, appointment or other writing, where or of which Central Guaranty Trust Company is named as executor, administrator, trustee, personal representative, bailee, committee, tutor, assignee, liquidator, receiver, custodian, guardian, curator or agent, or is named to another office or position whatsoever where property, interest, possibility or right is vested in, administered or managed by, or put in charge of Central Guaranty Trust Company in trust, or in the custody, care or control of Central Guaranty Trust Company, for or for the benefit of a person or purpose.

(2) Where an instrument specified or described in subsection (1) names Central Guaranty Trust Company to an office or position described in that subsection and the instrument takes effect after the substitution of TD Trust Company for Central Guaranty Trust Company, TD Trust Company shall be considered to be named in the place of Central Guaranty Trust Company.

Real and personal property held in trust by Central Guaranty Trust Company

5. (1) Subject to section 3, effective January 1, 1993, all real and personal property and every interest that is granted to, or held by, or vested in Central Guaranty Trust Company, whether by way of security or otherwise, in trust, or in the custody, care or control of Central Guaranty Trust Company, for or for the benefit of another person or purpose, under or in respect of every document and trust to which section 4 applies, and whether in the form in which it was originally acquired by Central Guaranty Trust Company or otherwise, is vested as of January 1, 1993 in TD Trust Company, according to the tenor of and at the time indicated or intended by the document or trust, upon the same trusts, and with the same powers, rights, immunities, and privileges, and subject to the same obligations and duties as are provided, granted or imposed.

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

Legal proceedings

6. (1) Subject to subsections 7(2) and (3), no suit, action, appeal, application or other proceeding being carried on and no power or remedy being exercised by or against Central Guaranty Trust Company as executor, administrator, trustee, personal representative or in another capacity referred to in subsection 4(1) in a court of the province, or before a tribunal or agency of the province, under or in respect of a document or trust to which section 4 applies, shall be discontinued or abated on account of this Act, but notwithstanding the Rules of the Supreme Court, 1986, may be continued in the name of the TD Trust Company, which shall have the same rights and shall receive the same costs and awards as if the suit, action, appeal, application or other proceeding had been commenced or defended in the name of TD Trust Company.

(2) Subject to subsections 7(2) and (3), a suit, action, appeal, application or other proceeding, or a power, right, remedy or right of distress that might have been brought or exercised by or against Central Guaranty Trust Company as executor, administrator, trustee, personal representative or in another capacity referred to in subsection 4(1) under or in respect of a document or trust to which section 4 applies, may be brought or exercised by or against TD Trust Company, which shall have the same rights as those which Central Guaranty Trust Company would have had if this Act had not been enacted.

Rights of third parties

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

(2) TD Trust Company is not liable for a debt, liability or obligation arising out of an act or omission on the part of Central Guarantee Trust Company in respect of a document or trust to which section 4 applies that occurred before January 1, 1993.

(3) Nothing in this Act changes or otherwise affects the law with respect to the rights, liabilities or obligations of TD Trust Company as successor trustee to Central Guaranty Trust Company.

Notice

8. (1) Where a person is under an obligation to make payments in relation to property that is vested in TD Trust Company under subsection 5(1), the person may make the payments to Central Guaranty Trust Company until TD Trust Company gives or causes to be given notice in writing to the person that payment shall be made to TD Trust Company, and then the person's obligation is owed to TD Trust Company.

(2) An instrument dealing with property that is vested in TD Trust Company by subsection 5(1), but that remains registered in the name of Central Guaranty Trust Company or a predecessor trust or loan company of Central Guaranty Trust Company in a public office of the province or in respect of which Central Guaranty Trust Company is shown by a document of title as having legal ownership, may be executed by TD Trust Company and may contain a recital referring to the vesting under this Act.

(3) An instrument executed by TD Trust Company containing the recital permitted by subsection (2) may be accepted for registration by a public office within the jurisdiction of the province without further proof of the accuracy of the recital, and that instrument shall be considered to be effective in passing title to the property described in the instrument notwithstanding an inaccuracy contained in the recital.

(4) In order to show the vesting in TD Trust Company under subsection 5(1) of an interest in personal property that constitutes an interest or security interest under the Bills of Sale Act, Conditional Sales Act, Registration of Deeds Act or another Act in respect of security interests in personal property now or later enacted or Acts in substitution for those Acts and for which Central Guaranty Trust Company is shown as the secured party, it is sufficient for the purpose of those Acts for an appropriate statement to be registered in respect of the vesting as if Central Guaranty Trust Company had assigned its interest to TD Trust Company.

Commencement