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Unclaimed Intangible Property Act

R.S.O. 1990, CHAPTER U.1

Note: This Act was repealed on December 31, 2011. See: Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 – December 31, 2011.

Note: THIS ACT IS NOT YET IN FORCE.  It comes into force on a day to be named by proclamation of the Lieutenant Governor. See: R.S.O. 1990, c. U.1, s. 48.

Last amendment: See Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 – December 31, 2011.

SKIP TABLE OF CONTENTS

CONTENTS

Definitions

1.

Definitions

PART I
GENERAL

2.

Purpose

3.

Right to unclaimed intangible property

4.

Unclaimed intangible property

PART II
NOTICE, REPORT, TRANSFER

5.

Notice to owner

6.

Report to Public Trustee

7.

Notice of proposed transfer

8.

Transfer to Public Trustee

9.

Transfer of records

10.

Certificate of ownership

11.

Notice by Public Trustee

12.

Right of owner

PART III
SPECIAL RULES

13.

Charges to reduce value prohibited

14.

Automatic renewal of deposits

15.

Travellers’ cheques and money orders

16.

Insurance and annuity contracts

17.

Shares

18.

Retirement accounts and plans

PART IV
PUBLIC TRUSTEE

19.

Administrator

20.

Authority of Public Trustee

21.

Unclaimed intangible property account

22.

Fees and expenses

23.

Transfer to Treasurer of Ontario

PART V
CLAIMS

24.

Filing of claim

25.

Response to claim

26.

Return of intangible property

27.

Interest

28.

Liability

29.

Claim for appreciation in value

30.

Determination of rights by court

31.

Costs

PART VI
INSPECTION

32.

Appointment of inspectors

33.

Entry

34.

Inspection

35.

Co-operation and powers of inspection

36.

Obstruction

37.

Warrant

PART VII
MISCELLANEOUS

38.

Failure to perform obligations

39.

Application to court

40.

Copies

41.

Retention of property

42.

Offences

43.

Penalty

44.

Compensation

45.

Records and information

46.

Regulations

47.

Transitional

48.

Commencement

Definitions

Definitions

1.  In this Act,

“business organization” means a corporation, a partnership or a sole proprietorship and, without limiting the generality of the foregoing, includes a financial organization, an insurer or a public utility; (“entreprise commerciale”)

“communication” means any form of contact, and includes oral, written or electronic communication; (“communication”)

“financial organization” means a trust corporation, a bank to which the Bank Act (Canada) applies, a loan corporation or a credit union; (“institution financière”)

“governmental organization” means,

(a) a ministry of the Crown and a Crown agency, board or commission,

(b) a municipality, including a district, metropolitan or regional municipality,

Note: On the day section 1 comes into force, clause (b) is repealed by the Statutes of Ontario, 2002, chapter 17, Schedule C, subsection 27 (1) and the following substituted:

(b) a municipality,

See: 2002, c. 17, Sched. C, ss. 27 (1), 27 (3).

(c) a local board as defined in the Municipal Affairs Act; (“organisation gouvernementale”)

“holder”, in respect of intangible property, includes any person, business organization, governmental organization or other entity,

(a) that is in possession of intangible property belonging to another,

(b) that is a trustee or other fiduciary, or

(c) that is indebted to another on an obligation; (“détenteur”)

“inspector” means an inspector appointed under this Act by the Public Trustee; (“inspecteur”)

“insurer” means an insurer licensed under the Insurance Act; (“assureur”)

“intangible property” means a right of ownership over any personal property that is not a chattel or a mortgage, and includes, without limiting the generality of the foregoing,

(a) money, a cheque, a bank draft, a deposit, interest, a dividend and income,

(b) a credit balance, a customer overpayment, a gift certificate, a security deposit, a refund, a credit memo, an unpaid wage and an unused airline ticket,

(c) a share or any other intangible ownership interest in a business organization,

(d) money deposited to redeem a share, a bond, a coupon or other security, or to make a distribution,

(e) an amount due and payable by the insurer under the terms of an insurance policy, and

(f) an amount distributable from a trust or custodial fund established under a plan to provide education, health, welfare, vacation, severance, retirement, death, share purchase, profit sharing, employee savings, supplemental unemployment insurance or a similar benefit; (“bien immatériel”)

“owner”, in respect of intangible property, means the legal owner or the equitable owner of the intangible property, and includes an executor or administrator of the owner; (“propriétaire”)

“prescribed” means prescribed by the regulations; (“prescrit”)

“public utility” means a public utility within the meaning of the Public Utilities Act, a regional, metropolitan or municipal corporation that operates a water or sewage works, an electrical supply system or other similar works or service, and a business organization that operates a system for the transmission of communications; (“entreprise de services publics”)

Note: On a day to be named by proclamation of the Lieutenant Governor, the definition of “public utility” is amended by the Statutes of Ontario, 1998, chapter 15, Schedule E, section 51 by inserting “a transmitter, distributor or retailer as defined in the Electricity Act, 1998 after “similar works or service”. See: 1998, c. 15, Sched. E, ss. 51, 52.

Note: On the day section 1 comes into force, the definition of “public utility” is amended by the Statutes of Ontario, 2002, chapter 17, Schedule C, subsection 27 (2) by striking out “regional, metropolitan or”. See: 2002. c. 17, Sched. C, ss. 27 (2), 27 (3).

“regulations” means regulations made under this Act. (“règlements”) R.S.O. 1990, c. U.1, s. 1.

PART I
GENERAL

Purpose

2.  (1) This Act safeguards the rights of owners of intangible property by providing a method for them to recover, in perpetuity, their intangible property that has been held by others.

Idem

(2) This Act also allows unclaimed intangible property to be used for the benefit of the people of Ontario until the property is claimed by its owner. R.S.O. 1990, c. U.1, s. 2.

Right to unclaimed intangible property

3.  The Crown in right of Ontario has the right to claim and receive unclaimed intangible property that is in Ontario or the ownership of which is governed by the law of Ontario. R.S.O. 1990, c. U.1, s. 3.

Unclaimed intangible property

4.  (1) Intangible property is unclaimed if no communication is received from the owner by the holder of the property within the time set out in subsection (2) and, where applicable, in the manner specified in that subsection.

Time periods

(2) Intangible property becomes unclaimed five years after the date on which it becomes payable or distributable by the holder, but intangible property represented by the following instruments, obligations or arrangements is subject to the following exceptions:

1. A traveller’s cheque becomes unclaimed fifteen years after the date of the issue of the traveller’s cheque.

2. A money order becomes unclaimed seven years after the date of the issuance of the money order.

3. A cheque, bank draft or other similar instrument becomes unclaimed five years after the date on which the cheque, bank draft or other similar instrument becomes payable or, if payable on demand, five years after the date of issuance of the cheque, bank draft or other similar instrument.

4. Subject to section 14, a demand deposit, savings deposit or matured time deposit with a financial organization becomes unclaimed five years after the last date on which the owner of the deposit,

i. last increased or decreased the amount of the deposit,

ii. last presented the passbook or other similar evidence of the deposit for the crediting of interest, or

iii. last communicated with the financial organization on any matter as evidenced by a record on file at the financial organization.

5. Subject to section 16, an amount held or owing under a life insurance contract, an endowment insurance contract or an annuity contract that has matured becomes unclaimed three years after the date on which the money becomes due and payable according to the records of the insurer under the contract.

6. A deposit made by a customer with a public utility as a deposit to secure payment or as payment in advance for utility services to be furnished becomes unclaimed one year after the date of termination of the utility services to the customer.

7. A refund becomes unclaimed one year after the date on which it becomes payable.

8. Subject to section 17, a share or other intangible ownership interest in a business organization becomes unclaimed five years after the date on which a dividend, distribution or other amount becomes payable or distributable or, where no dividend, distribution or other amount has become payable or distributable, twenty years from the prescribed date if the owner has not communicated with the holder during the twenty-year period.

9. Subject to section 17, a dividend, distribution or other amount payable or distributable in respect of a share or other intangible ownership interest mentioned in paragraph 8 is unclaimed at the time when that share or other intangible ownership interest becomes unclaimed.

10. Intangible property that is distributable in the course of the dissolution of a business organization becomes unclaimed one year after the date specified for final distribution if it remains undistributed at that time.

11. Intangible property held in a fiduciary capacity becomes unclaimed five years after the last to occur of any date on which,

i. the property, income or increment becomes payable or distributable,

ii. the beneficiary has accepted payment of principal or income, or

iii. the beneficiary has communicated with the holder, or otherwise indicated an interest in the property, as evidenced by the records of the holder.

12. Intangible property that is held for the owner by a court, a tribunal or governmental organization becomes unclaimed one year after the date on which the intangible property becomes payable or distributable.

13. An unpaid wage, including a wage represented by an unpresented payroll cheque, that is owing in the ordinary course of business becomes unclaimed one year after the date on which the wage becomes payable.

Interest, etc.

(3) When any intangible property becomes unclaimed, all interest, income and other accretions to the property held by the holder at the time the property is transferred to the Public Trustee are unclaimed and shall be transferred to the Public Trustee with the property. R.S.O. 1990, c. U.1, s. 4.

PART II
NOTICE, REPORT, TRANSFER

Notice to owner

5.  (1) A holder of unclaimed intangible property that has a value of more than $100 who has an address for the owner of the property shall send written notice to the owner.

Time

(2) The holder shall send the notice not less than ninety days and not more than twelve months before the date by which the holder is required to report to the Public Trustee as required by this Part.

Content

(3) The notice shall state that the holder is holding the property, that the property is subject to this Act and any other prescribed information.

Inaccurate address

(4) Subsection (1) does not apply if the holder has reasonable grounds for believing that the address of the owner in the records of the holder is inaccurate.

Charge for notice

(5) No holder shall charge more than the prescribed amount for sending written notice under this section. R.S.O. 1990, c. U.1, s. 5.

Report to Public Trustee

6.  (1) Every holder of unclaimed intangible property shall file annually with the Public Trustee a report within the prescribed time and in the prescribed form in respect of the property.

Earlier payment or transfer

(2) A holder of unclaimed intangible property who is exempt by the regulations from reporting the name of the owner of the property to the Public Trustee shall transfer the property to the Public Trustee at the time of filing the report with the Public Trustee.

Extension of time

(3) The Public Trustee may extend the time for filing the report if satisfied that there are reasonable grounds for granting the extension.

Time of grant of extension

(4) The Public Trustee may grant an extension before or after expiry of the time for filing the report. R.S.O. 1990, c. U.1, s. 6.

Notice of proposed transfer

7.  The Public Trustee shall cause notices to be published, in accordance with the regulations, listing the names of, and other prescribed information relating to, the owners of property recorded in reports filed under this Act and the regulations with the Public Trustee by holders of such property. R.S.O. 1990, c. U.1, s. 7.

Transfer to Public Trustee

8.  (1) Within six months after the date on which a holder of unclaimed intangible property is required to file a report under section 6 in respect of the property, the holder shall transfer the property to the Public Trustee.

Exception

(2) Subsection (1) does not apply in respect of property that has been claimed by the owner.

Further reports

(3) A holder who transfers property under this section shall file with the Public Trustee, at the time of the transfer,

(a) a second report in the prescribed form in respect of the property mentioned in the first report; and

(b) a report in the prescribed form in respect of any property claimed by the owner from the holder between the dates of filing the first and second reports. R.S.O. 1990, c. U.1, s. 8.

Transfer of records

9.  (1) The Public Trustee may require the transfer to the Public Trustee of records related to unclaimed intangible property transferred under this Act.

Extension of time

(2) The Public Trustee may extend the time for making a transfer under subsection (1) if the Public Trustee is satisfied that there are reasonable grounds for granting the extension.

Time of grant of extension

(3) The Public Trustee may grant an extension before or after expiry of the time for making the transfer.

Voluntary transfer

(4) A holder of unclaimed intangible property may transfer to the Public Trustee any record in respect of the property that the Public Trustee is willing to accept. R.S.O. 1990, c. U.1, s. 9.

Certificate of ownership

10.  The holder of unclaimed intangible property composed of shares or any other intangible ownership interest in a business organization who is required to transfer the property to the Public Trustee shall, at the request of the Public Trustee, issue and deliver to the Public Trustee a certificate showing the Public Trustee as owner of the property or, if the holder does not issue certificates of ownership, other evidence of ownership satisfactory to the Public Trustee, and the change of ownership shall be recorded in the records of the holder. R.S.O. 1990, c. U.1, s. 10.

Notice by Public Trustee

11.  The Public Trustee shall cause a notice in the prescribed form to be published annually in The Ontario Gazette, listing the names of, and other prescribed information relating to, the owners of unclaimed intangible property transferred to the Public Trustee in the previous year. R.S.O. 1990, c. U.1, s. 11.

Right of owner

12.  The owner of unclaimed intangible property transferred to the Public Trustee has the right to claim the property from the Public Trustee in accordance with Part V. R.S.O. 1990, c. U.1, s. 12.

PART III
SPECIAL RULES

Charges to reduce value prohibited

13.  (1) A holder of intangible property shall not impose a charge against the owner of the property because the owner has failed to communicate with the holder or because there have been no transactions with respect to the property.

Exception

(2) Subsection (1) does not apply if the charge is authorized under any Act or if there is a written contract between the holder and the owner pursuant to which the holder may impose the charge and,

(a) the holder regularly imposes such charges; and

(b) the holder does not regularly reverse or otherwise cancel such charges after imposing them.

Limit

(3) Despite subsection (2), a charge mentioned in subsection (1) that exceeds the prescribed amount is void.

Deemed charge

(4) For the purposes of this section, ceasing to make payment of interest shall be deemed to be the imposition of a charge and the amount of the unpaid interest shall be deemed to be the amount of the charge. R.S.O. 1990, c. U.1, s. 13.

Automatic renewal of deposits

14. (1) For the purposes of paragraph 4 of subsection 4 (2), the automatic renewal of a demand deposit, savings deposit or matured time deposit with a financial organization does not prevent the commencement of the period of time.

Exception

(2) Subsection (1) does not apply if the owner of the deposit communicated with the bank or financial organization at or about the time of renewal to consent to the renewal. R.S.O. 1990, c. U.1, s. 14.

Travellers’ cheques and money orders

15.  Ontario does not have the right to unclaimed intangible property represented by a traveller’s cheque, money order or similar written instrument unless,

(a) the records of the issuer show that the traveller’s cheque, money order or similar written instrument was purchased in the Province; or

(b) the issuer has its principal place of business in the Province and the records of the issuer do not show that the traveller’s cheque, money order or similar written instrument was purchased in another jurisdiction. R.S.O. 1990, c. U.1, s. 15.

Insurance and annuity contracts

16.  (1) For the purposes of paragraph 5 of subsection 4 (2), an annuity contract, a life insurance contract or an endowment insurance contract not matured by proof of the death of the annuitant or the person whose life was insured according to the records of the insurer shall be deemed to be matured and the proceeds are due and payable if,

(a) the insurer has reasonable grounds for belief that the person has died, and the contract was in force on the date the person is believed to have died; or

(b) the person, if alive, would have attained the limiting age under the mortality table on which the reserve for the contract is based, and the contract was in force on the date on which the person would have attained that age.

Application of subs. (1)

(2) Subsection (1) does not apply if, within the preceding three years, any person who is entitled to do so has assigned an interest in the contract, readjusted or paid premiums on the contract, borrowed from the insurer against the contract or otherwise communicated with the insurer. R.S.O. 1990, c. U.1, s. 16.

Shares

17.  (1) For the purposes of paragraph 8 of subsection 4 (2), a share or any other intangible ownership interest in a business organization is not unclaimed unless,

(a) there have been at least five consecutive dividends, distributions or other sums payable or distributable in respect of the share or other intangible ownership interest; and

(b) at least five years have elapsed since the date when the earliest of the five consecutive dividends, distributions or other sums mentioned in clause (a) became payable or distributable and no dividend, distribution or other sum that became payable or distributable on or after that date has been claimed by the owner.

Calculation of time

(2) If five dividends, distributions or other sums are payable or distributable, the period of time for determining whether the interest is unclaimed intangible property shall be calculated from the date of payment or distribution of the first unclaimed dividend, distribution or other sum.

Holder

(3) For the purposes of this Act, a person who holds intangible property as a transfer agent for the issuer of shares is the holder of the property only in so far as the interest of the issuer is concerned, and the issuer is the holder of the property in respect of the interest of the owner.

Application to brokers, etc.

(4) Where a broker, depository or other fiduciary is the holder of a share or other intangible ownership interest and has not paid or distributed to the owner the dividends, distributions or other sums payable or distributable mentioned in subsection (1) in respect of the share or interest for the period mentioned in that subsection, the share or other interest, including the dividends, distribution or other sums payable or distributable, is unclaimed. R.S.O. 1990, c. U.1, s. 17.

Retirement accounts and plans

18.  Funds in a registered retirement savings plan, as defined by the Income Tax Act (Canada), or similar plan are not payable or distributable for the purposes of this Act until five years after the date when, under the terms of the plan, distribution of all or part of the funds is mandatory and the owner or beneficiary of the funds has not communicated with the holder in that time as evidenced by the records of the holder. R.S.O. 1990, c. U.1, s. 18.

PART IV
PUBLIC TRUSTEE

Administrator

19.  The Public Trustee is the administrator of unclaimed intangible property on behalf of Ontario. R.S.O. 1990, c. U.1, s. 19.

Authority of Public Trustee

20.  (1) Subject to this Act, the Public Trustee has and may exercise all the rights and powers related to ownership in respect of unclaimed intangible property transferred, or required to be transferred, to the Public Trustee.

Powers and duties

(2) The Public Trustee has in respect of this Act the powers, capacities, duties and liabilities under the Public Trustee Act. R.S.O. 1990, c. U.1, s. 20

Unclaimed intangible property account

21.  (1) The Public Trustee shall establish in the accounts of the Public Trustee a separate account for unclaimed intangible property.

Record

(2) The Public Trustee shall record in the unclaimed intangible property account all unclaimed intangible property transferred to the Public Trustee and the disposition of the property. R.S.O. 1990, c. U.1, s. 21.

Fees and expenses

22.  The Public Trustee is entitled to charge against the unclaimed intangible property account the expenses of administration approved by the Management Board of Cabinet in respect of property received and administered under this Act. R.S.O. 1990, c. U.1, s. 22.

Transfer to Treasurer of Ontario

23.  (1) The Public Trustee shall transfer to the Treasurer of Ontario at the close of each fiscal year for deposit into the Consolidated Revenue Fund the balance remaining recorded in the unclaimed intangible property account.

Reserve

(2) The Public Trustee may retain out of the money to be transferred a reasonable reserve, in an amount approved by the Treasurer of Ontario, against future claims and expenses against the Account.

Insufficient reserve

(3) If the amount held in the account, together with the reserve retained under subsection (2), is insufficient to meet claims against it, the Treasurer of Ontario may pay from the Consolidated Revenue Fund to the credit of the account such sum as is, in the opinion of the Treasurer, sufficient to meet the claims that cannot be satisfied from it. R.S.O. 1990, c. U.1, s. 23.

PART V
CLAIMS

Filing of claim

24.  A person claiming an interest in unclaimed intangible property transferred to the Public Trustee may file a claim with the Public Trustee in the prescribed form. R.S.O. 1990, c. U.1, s. 24.

Response to claim

25.  The Public Trustee shall consider and respond in writing to each claim within ninety days after the claim is filed. R.S.O. 1990, c. U.1, s. 25.

Return of intangible property

26.  (1) If a claim is allowed, the Public Trustee shall transfer to the claimant the intangible property transferred to the Public Trustee or, if the property has been sold by the Public Trustee, the net proceeds of the sale.

Expenses and fees

(2) The Public Trustee is entitled to be paid by the person to whom intangible property is transferred under subsection (1) or to retain out of the net proceeds of sale the expenses and prescribed fees of the Public Trustee.

Idem

(3) Expenses and fees mentioned in subsection (2) shall be deposited in the Unclaimed Intangible Property Account. R.S.O. 1990, c. U.1, s. 26.

Interest

27.  (1) If unclaimed intangible property in respect of which a claim is allowed was interest-bearing to the owner on the date of transfer to the Public Trustee, the Public Trustee shall pay to the claimant an amount in respect of interest calculated at the lesser of the prescribed rate or the rate the property was earning immediately before transfer to the Public Trustee.

Idem

(2) If unclaimed intangible property in respect of which a claim is allowed is transferred to the Public Trustee in a form other than money, the Public Trustee also shall pay to the claimant any dividend, interest or other increment realized or accrued on the property from the date the property was transferred to the Public Trustee to and including the date the property was converted into money and thereafter shall pay an amount in respect of interest in accordance with subsection (1).

Calculation of interest

(3) Interest begins to accrue on the date when the unclaimed intangible property is transferred to the Public Trustee, in the case of money, and, in the case of property other than money, on the date when the property was converted into money, and ceases on the earlier of the expiration of ten years after that date or the date on which the property is transferred to the owner. R.S.O. 1990, c. U.1, s. 27.

Liability

28.  (1) A holder who transfers property to the Public Trustee for the purposes of this Act in good faith is relieved of all liability to the extent of the value of the property paid or transferred for any claim in respect of the property.

Indemnity

(2) Subject to subsection (3), if a holder transfers property to the Public Trustee in good faith and thereafter another person claims the property from the person who was the holder or another jurisdiction claims the property under its laws relating to escheat or unclaimed property, the Public Trustee, upon proof of the claim, will indemnify the person who was the holder as to the claim and legal costs.

Conditions

(3) The Public Trustee is not required to pay an indemnity unless the person who was the holder,

(a) gives to the Public Trustee written notice of the claim forthwith after becoming aware of the claim;

(b) takes no action that would prejudice any settlement of the claim by the Public Trustee and takes no action that would prejudice any defence of the claim or any appeal in relation thereto; and

(c) assists (except monetarily) the Public Trustee in such manner as may be reasonably necessary to settle the claim or as may be reasonably necessary in defence of the claim or in any appeal in relation thereto.

Rights of Public Trustee

(4) Upon receipt of a written notice from a person who was a holder, the Public Trustee may defend or contest the claim to which the notice relates and the Public Trustee may exercise and make any defence that the person could make. R.S.O. 1990, c. U.1, s. 28.

Claim for appreciation in value

29.  No person has the right to a claim against the Crown, the Public Trustee, the holder, or a transfer agent, a registrar or other person acting for or on behalf of a holder for any appreciation in the value of unclaimed intangible property occurring after transfer by the holder to the Public Trustee. R.S.O. 1990, c. U.1, s. 29.

Determination of rights by court

30.  (1) Upon application, a court of competent jurisdiction may determine the rights of a claimant under this Part.

Time

(2) An application under subsection (1) shall not be commenced before the expiry of the period of time within which the Public Trustee is required to respond to a claim under this Part. R.S.O. 1990, c. U.1, s. 30.

Costs

31.  (1) A court that determines an application respecting property transferred to the Public Trustee under this Act may award costs to be paid out of the value of the property.

Exception

(2) The court shall not award costs against the Public Trustee or the holder who transferred the property to the Public Trustee.

Non-application of subs. (2)

(3) Subsection (2) does not apply if the court determines that the Public Trustee or the holder who transferred the property to the Public Trustee failed to act in accordance with this Act or the regulations and the failure to act prejudiced the interest of the owner of the property. R.S.O. 1990, c. U.1, s. 31.

PART VI
INSPECTION

Appointment of inspectors

32.  The Public Trustee may appoint in writing one or more persons as inspectors. R.S.O. 1990, c. U.1, s. 32.

Entry

33.  An inspector may at any reasonable time, without a warrant, enter the business premises of a holder of intangible property to make an inspection for the purposes of this Act and the regulations. R.S.O. 1990, c. U.1, s. 33.

Inspection

34.  Upon an inspection, an inspector has the right to examine the business records of the holder to determine whether the holder is complying with this Act and the regulations. R.S.O. 1990, c. U.1, s. 34.

Co-operation and powers of inspection

Co-operation

35.  (1) Every holder of intangible property whose business records are the subject of an inspection shall co-operate fully with the inspector, including,

(a) permitting the inspector to enter all premises where the holder keeps business records;

(b) producing to the inspector the holder’s business records;

(c) permitting the inspector to examine the holder’s business records and providing such assistance as is requested by the inspector; and

(d) providing to the inspector information requested by the inspector in respect of the holder’s business records and in respect of intangible property held by the holder for any other person.

Employees

(2) Every employee of a business organization whose business records are the subject of an inspection also shall provide the co-operation specified in subsection (1).

Powers of inspection

(3) Upon an inspection under this section, the inspector,

(a) has the right to inspect the premises and the operations carried out on the premises;

(b) has the right to free access, at any reasonable time, to all books of account, documents, correspondence and records, including all records that are relevant to the purposes of the inspection, regardless of the form or medium in which such records are kept, but, if such books, documents, correspondence or records are kept in a form or medium that is not legible, the inspector is entitled to require the person apparently in charge of them to produce a legible physical copy for examination by the inspector;

(c) has the right to remove, upon giving a receipt therefor and showing the certificate of appointment issued by the Public Trustee, any material referred to in clause (b) that relates to the purposes of the inspection for the purpose of making a copy thereof, provided that the material is promptly returned to the person apparently in charge of the premises from which the material was removed; and

(d) may question a person on matters that are or may be relevant to an inspection under this Act, subject to the person’s right to have counsel or some other representative present during the examination. R.S.O. 1990, c. U.1, s. 35.

Obstruction

36.  No person shall hinder, obstruct or fail to co-operate with an inspector carrying out an inspection. R.S.O. 1990, c. U.1, s. 36.

Warrant

37.  (1) An inspector may apply to a justice of the peace for a warrant if a holder of intangible property, or a person believed to be a holder of intangible property,

(a) denies an inspector entry to the holder’s business premises;

(b) instructs an inspector to leave the holder’s business premises;

(c) obstructs an inspector carrying out an inspection; or

(d) fails to co-operate with an inspector carrying out an inspection.

Issuance of warrant

(2) A justice of the peace may issue a warrant in the prescribed form if satisfied on evidence upon oath or affirmation,

(a) that there is reasonable ground for believing that it is necessary to enter any business premises and to examine a holder’s business records for the purposes of this Act; and

(b) that an inspector has been denied entry, instructed to leave, obstructed or refused production of any business record.

Action under warrant

(3) A warrant under this section authorizes the inspector, and any person acting under the direction of the inspector, to enter the business premises of the holder named in the warrant, to examine the holder’s business records and, upon giving a receipt therefor, to remove the business records or any part of them for the purpose of making copies by force, if necessary, together with such police officer or officers as they call upon to assist them.

Execution of warrant

(4) A warrant issued under this section shall be executed at reasonable times as specified in the warrant.

Expiry of warrant

(5) A warrant issued under this section shall state the date on which it expires, which shall be a date not later than fifteen days after the warrant is issued.

Notice of application

(6) A justice of the peace may receive and consider an application for a warrant under this section without notice to and in the absence of a representative of the holder whose records are to be inspected. R.S.O. 1990, c. U.1, s. 37.

PART VII
MISCELLANEOUS

Failure to perform obligations

Failure to report

38.  (1) Every person who fails, without reasonable excuse, to file a report as required by this Act and the regulations shall pay a penalty of not more than $500 for each day or part of a day on which the failure occurs or continues.

Failure to transfer

(2) Every person who fails, without reasonable excuse, to transfer unclaimed intangible property to the Public Trustee when required by this Act and the regulations shall pay a penalty in an amount equal to 10 per cent of the value of the unclaimed intangible property.

Interest

(3) Every person who fails, without reasonable excuse, to transfer unclaimed intangible property to the Public Trustee when required by this Act and the regulations shall pay a penalty in an amount equal to interest at the prescribed rate on the value of the property calculated from the date when the person should have transferred the property to the Public Trustee to and including the date on which the property is transferred to the Public Trustee.

Payment

(4) Every penalty under subsection (1), (2) or (3) shall be paid to the Public Trustee and shall form part of the Unclaimed Intangible Property Account.

Order

(5) Upon application by the Public Trustee, a court of competent jurisdiction may order a person to pay a penalty that the person owes under subsection (1), (2) or (3). R.S.O. 1990, c. U.1, s. 38.

Application to court

39.  Upon application by the Public Trustee, a court of competent jurisdiction may order a holder of unclaimed intangible property to transfer the property to the Public Trustee in accordance with this Act and the regulations. R.S.O. 1990, c. U.1, s. 39.

Copies

40.  A copy of any business record related to an inspection and purporting to be certified by an inspector is admissible in evidence in any action, application or prosecution as proof, in the absence of evidence to the contrary, of the original. R.S.O. 1990, c. U.1, s. 40.

Retention of property

41.  Every person who is required to file a report with the Public Trustee in respect of intangible property shall preserve the records relating to the property for the prescribed period of time. R.S.O. 1990, c. U.1, s. 41.

Offences

42.  (1) Every person who obstructs or hinders an inspector carrying out or attempting to carry out an inspection under this Act is guilty of an offence.

Idem

(2) Every person who participates in, assents to or acquiesces in the making of an incorrect statement or omission in a report or return under this Act or the regulations is guilty of an offence.

Records

(3) Every person who fails to preserve a record in accordance with this Act or the regulations is guilty of an offence.

Director or officer

(4) Every director or officer of a body corporate that is guilty of an offence under this Act who authorizes, permits or acquiesces in the offence is guilty of an offence. R.S.O. 1990, c. U.1, s. 42.

Penalty

43.  Every person who is guilty of an offence under this Act is liable on conviction to a fine of not more than $5,000 or, if the person is a body corporate, to a fine of not more than $25,000 for every day or part of a day on which the offence occurs or continues. R.S.O. 1990, c. U.1, s. 43.

Compensation

44.  (1) A provision of an agreement to recover or assist in recovering unclaimed intangible property that provides for compensation or for payment of expenses, or for both, is not valid in respect of that part of the compensation or expenses, or both, that exceeds 20 per cent of the value of the property.

Public Trustee

(2) Despite the existence of an agreement to recover or assist in recovering unclaimed intangible property, the Public Trustee has the right to transfer property or to make payment, or both, directly to the owner of the property. R.S.O. 1990, c. U.1, s. 44.

Records and information

45.  Despite the Freedom of Information and Protection of Privacy Act, the Public Trustee shall provide to officials of the Ministry of Treasury and Economics such records and information as they request for the purposes of developing policies for the Province of Ontario. R.S.O. 1990, c. U.1, s. 45.

Regulations

46.  The Lieutenant Governor in Council may make regulations,

(a) prescribing any matter referred to in this Act as prescribed;

(b) respecting the times within which holders of unclaimed intangible property shall report thereon to the Public Trustee;

(c) requiring that reports to the Public Trustee respecting unclaimed intangible property be accompanied by certificates verifying their accuracy and completeness as reflecting the records of the holder making the report, prescribing the forms of such reports and by whom such reports shall be signed;

(d) exempting holders of unclaimed intangible property of prescribed classes or of less than the prescribed value from reporting the names and addresses of the owners of the property to the Public Trustee;

(e) exempting kinds or classes of property from the application of this Act or the regulations;

(f) exempting classes of persons from reporting or transferring property under this Act or the regulations;

(g) respecting the records that shall be kept by the Public Trustee in respect of property transferred to the Public Trustee under this Act;

(h) respecting the publication of notices by the Public Trustee listing property paid or transferred to the Public Trustee under this Act;

(i) respecting the fees and expenses that may be charged by the Public Trustee for the care and administration of property under this Act;

(j) prescribing rules and conditions for determining when intangible property is or is not in Ontario for the purposes of this Act;

(k) prescribing the time when and the circumstances in which intangible property not mentioned in section 4 becomes unclaimed;

(l) prescribing for the purposes of subsection 5(1) an amount other than $100. R.S.O. 1990, c. U.1, s. 46.

Transitional

47.  (1) The periods of time set out in this Act for calculating when intangible property becomes unclaimed apply in respect of periods of time before as well as after the coming into force of this Act.

Void provisions

(2) Every provision of any by-law, letters patent or articles of incorporation or association or in any other similar instrument, whether made before or after the coming into force of this Act, that extinguishes or forfeits an owner’s interest in intangible property before it is to be transferred to the Public Trustee under this Act is void.

Exception

(3) Subsection (2) does not apply in respect of the extinguishment or forfeiture of an owner’s interest in intangible property before a date that is ten years before the date on which this Act comes into force.

Conflict with other Acts

(4) This Act applies despite the provisions of any other Act that, after the coming into force of this Act, extinguish or make unenforceable an owner’s interest in intangible property or limit the commencement or continuation of any action or proceeding with respect to the owner’s interest in intangible property.

Interest not revived

(5) Subject to this section, this Act does not revive the interest of an owner in intangible property if that interest has, before the 18th day of May, 1989, been extinguished or made unenforceable unless,

(a) on or after that date, the financial or other records of the holder show the entitlement of the owner to that interest; or

(b) the holder regularly waives the extinguishment or unenforceability of such interest. R.S.O. 1990, c. U.1, s. 47.

Commencement

48. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor. R.S.O. 1990, c. U.1, s. 48.

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