Qp Date
This Act has "Not in Force" sections. See the Table of Legislative Changes.

Law and Equity Act

[RSBC 1996] CHAPTER 253

Contents
 1 Application of Act
 2 Application of English law in British Columbia
 3 Laws not in force in British Columbia
 4 Equitable relief for plaintiff
 5 Equitable relief for defendant
 6 Repealed
 7 Judicial notice of equitable estates
 8 No restraint by prohibition or injunction
 9 Judicial notice of legal and statutory rights, claims and liabilities
 10 Avoidance of multiplicity of proceedings
 11 Equitable waste
 12 Merger
 13 Mortgagor may sue in respect of mortgaged land
 14 Mortgagor may require mortgagee to assign
 15 Order for sale
 16 Agreements for sale
 17 Power of court to discharge mortgagor on payment of mortgage money
 18 Power of court in foreclosure actions to make order without regular hearing
 19 Payment of interest after default
 20 Cost in foreclosure proceedings
 21 Venue in foreclosure proceedings
 22 Right of redemption controverted
 23 Covenants to insure against fire
 24 Relief against penalties and forfeitures
 25 Relief against acceleration provisions
 26 Relief against forfeiture for breach of covenant to insure
 27 Relief to be recorded
 28 Single relief on covenant
 29 Restriction on effect of licence
 30 Assignment of personalty
 31 Stipulations not of essence
 32 Damage by collision at sea
 33 Custody of infants
 34 Surety who discharges liability entitled to assignment of securities
 35 Writ of execution to bind goods only from time of seizure
 36 Assignment of debts and choses in action
 37 Vesting orders
 38 Execution of instruments by order of court
 39 Injunction or mandamus may be granted or receiver appointed by interlocutory order
 40 Railway company not to be restrained on application made without notice
 41 Railway company may be ordered to pay money into court
 42 Applicant for injunction to furnish security
 43 Rule in Cumber v. Wane abrogated
 44 If rules of equity and law conflict, equity prevails
 45 Uncertain terms in specified leases
 46 Repealed
 47 Charitable trusts
 48 Action by claimant under labour and material bonds
 49 Repealed
 50 Repealed
 51 Repealed
 52 Court to consider interest of child
 53 Proceeding and order against one of several persons jointly liable
 54 Conditions precedent
 55 Art exempt from seizure
 56 Discount rates
 57 Recovery of property
 58 Warrants of Attorney, etc.
 59 Enforceability of contracts
 60 Spousal capacity and property
 60.1 Responsibility for former spouse
 61 Repealed
 62 Performance under protest
 63 Action per quod servitium amisit
 64 Receivers and receiver-managers
 65–67 Not in force. Repealed.
 68 Alternate dispute resolution

Application of Act

1  The rules of law enacted and declared by this Act are part of the law of British Columbia and must be applied in all courts in British Columbia.

Application of English law in British Columbia

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 British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits.

Laws not in force in British Columbia

3  Section 28 of the Offences Against the Person Act, 1828 and all sections of the Real Property Act, 1845 are not in force in British Columbia.

Equitable relief for plaintiff

4  If 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 that, before April 29, 1879, could 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, must give the plaintiff or petitioner the relief that ought to have been given by the court in a suit or proceeding in equity for the same or similar purpose properly commenced before April 29, 1879.

Equitable relief for defendant

5  If 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, must 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, that the court ought to have given if the same or similar matters had been relied on as a defence in a suit or proceeding commenced in that court as a court of equity for the same or similar purpose before April 29, 1879.

Repealed

6  [Repealed 1998-42-25.]

Judicial notice of equitable estates

7  The court, and every judge of it, must recognize and take notice of all equitable estates, titles and rights and all equitable duties and liabilities appearing incidentally in the course of a cause or matter in the same manner in which the court sitting in equity would have recognized and taken notice of those estates, titles, rights, duties and liabilities in any suit or proceeding properly commenced in that court before April 29, 1879.

No restraint by prohibition or injunction

8  (1) A cause or proceeding pending in the court must not 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.

(2) Nothing in this Act disables the court from directing a stay of proceedings in a cause or matter pending before it, if it thinks fit.

(3) Any person, whether or not a party to a cause or matter pending before the court, 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, may 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 and the court must make any order that is just.

Judicial notice of legal and statutory rights, claims and liabilities

9  Subject to this Act, the court and every judge of it must 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 been enacted.

Avoidance of multiplicity of proceedings

10  In the exercise of its jurisdiction in a cause or matter before it, the court must grant, either absolutely or on reasonable conditions that to it seem just, all remedies that 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 those matters may be avoided.

Equitable waste

11  An estate for life without impeachment of waste does not confer and is deemed not to have conferred on the tenant for life a legal right to commit equitable waste, unless an intention to confer that right expressly appears by the instrument creating the estate.

Merger

12  There is not any merger, by operation of law only, of an estate the beneficial interest in which would not be deemed to be merged or extinguished in equity.

Mortgagor may sue in respect of mortgaged land

13  A mortgagor entitled to the possession or receipt of the rents and profits of land, as to which a notice of the mortgagee's intention to take possession or to enter into the receipt of those rents and profits has not 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 to the land, in the mortgagor's own name only, unless the cause of action arises on a lease or other contract made by the mortgagor jointly with another person.

Mortgagor may require mortgagee to assign

14  (1) Despite any stipulation to the contrary, if a mortgagor is entitled to redeem, the mortgagor may require the mortgagee, or the mortgagee's personal representatives or assigns, instead of giving a certificate of payment or reconveying, and on the terms on which the mortgagee 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.

(2) A mortgagee in possession who is required to assign, transfer and convey under subsection (1) does not incur any legal liability that the mortgagee would not have incurred if the mortgagee had executed a release of the mortgage.

Order for sale

15  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.

Agreements for sale

16  (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 is 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;

(c) determination of the agreement;

"redemption" means the payment, fulfillment or performance by the purchaser or person claiming through the purchaser, of all obligations secured by the property and, if there has been a breach or default of the purchaser or person claiming through the purchaser, 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 in the Supreme Court Civil Rules.

(2) If, in a foreclosure, the purchaser or person claiming through the purchaser is given time to redeem, the court must 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 making an order absolute in a foreclosure, extend the redemption period ordered under subsection (2).

(4) A proceeding by a vendor to enforce a personal covenant in an agreement for sale, taken after entry of an order nisi in a foreclosure, does not affect the right of the vendor to obtain an order absolute in the foreclosure.

(5) Despite section 32 of the Property Law Act, or the making of an order absolute in any foreclosure brought on an agreement for sale, the court has the same discretion to reopen the foreclosure and allow the purchaser to redeem as it would have had if the foreclosure had been brought to enforce a mortgage.

(6) Despite 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.

Power of court to discharge mortgagor on payment of mortgage money

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 or her 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 who has 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 the case of the mortgagee's refusal, brings into court where the action is pending all the principal money and interest due on the mortgage, and all costs spent in any proceeding on the mortgage, the money for principal, interest and costs to be calculated by the court, the money so paid to the mortgagee or brought into court is in full satisfaction and discharge of the mortgage, and the court must and may discharge the mortgagor or defendant from the mortgage accordingly and must 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 the mortgagee's custody relating to the title of the mortgaged land to the mortgagor who has paid or brought the money into the court, the mortgagor's heirs, personal representatives or to the person the mortgagor appoints for that purpose.

Power of court in foreclosure actions to make order without regular hearing

18  (1) If a proceeding is brought by a person who has or claims 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 the 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 the defendant admitting the right and title of the plaintiff, may and must at any time before the hearing make an order or give a judgment that the court could have made if the proceeding had been regularly brought to a hearing or trial.

(2) All parties to the action are bound by the order or judgment referred to in subsection (1), as if it were made or given by the court at the hearing or trial of the proceeding.

Payment of interest after default

19  In a proceeding for the foreclosure of the equity of redemption in mortgaged property, the court must, 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.

Cost in foreclosure proceedings

20  (1) In this section:

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

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

(2) In a foreclosure in which costs are awarded, the court may,

(a) despite 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, and

(b) instead of making an order in accordance with that covenant or term,

order that costs be assessed as party and party costs or as special costs under the Supreme Court Civil Rules, and the court may make no order for costs if it would otherwise make no order but for the covenant or term referred to in this subsection.

(3) This section applies to all proceedings commenced before April 14, 1986 other than a proceeding in which a court has made an order for costs.

Venue in foreclosure proceedings

21  (1) In this section:

"foreclosure"

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

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

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

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

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

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

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

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

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

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

Right of redemption controverted

22  This section and sections 17 and 18 do not extend to a case where the person against whom the redemption is requested insists, in writing personally or by his or her 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 does not have a right to redeem, or that the land is chargeable with other or different principal sums than those that appear on the face of the mortgage or are admitted on the other side, or to a 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, despite anything in sections 17 and 18 to the contrary.

Covenants to insure against fire

23  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, on loss or damage by fire, has 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 or her interest under the lease or in the property, or by any person claiming under him or her but not effected in conformity with the covenant, as the person would have from an insurance effected in conformity with the covenant.

Relief against penalties and forfeitures

24  The court may relieve against all penalties and forfeitures, and in granting the relief may impose any terms as to costs, expenses, damages, compensations and all other matters that the court thinks fit.

Relief against acceleration provisions

25  (1) Despite an agreement to the contrary, if because of a default in payment of any money due under, or in the observance of a covenant contained in

(a) a mortgage of land, or

(b) 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 that it considers appropriate.

(3) This section applies to an instrument referred to in subsection (1) (a) or (b) 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 28 does not apply in an application for relief under this section.

Relief against forfeiture for breach of covenant to insure

26  The court or any judge of it may, on terms the court or judge may think fit, relieve against a forfeiture for breach of a covenant or condition to insure against loss or damage by fire if 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 that conforms with the covenant to insure.

Relief to be recorded

27  The court or a judge of it, if relief is granted, must direct that a record of the relief granted be made by endorsement on the lease or otherwise.

Single relief on covenant

28  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 if 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.

Restriction on effect of licence

29  (1) If 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 the lessee's 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.

(2) 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.

(3) 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.

Assignment of personalty

30  Any person may assign personal property, now by law assignable, including chattels real, directly to himself or herself and another person, by the same means as the person might assign the property to another person.

Stipulations not of essence

31  Stipulations in contracts, as to time or otherwise, that are not deemed to be or to have become of the essence of the contracts according to the rules of equity, must receive the same construction and effect as they would receive in equity.

Damage by collision at sea

32  In any cause or proceeding, other than 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, prevail.

Custody of infants

33  In questions relating to the custody and education of infants, the rules of equity prevail.

Surety who discharges liability entitled to assignment of securities

34  (1) 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 her or to a trustee for him or her every judgment, specialty or other security that 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.

(2) The person who has paid the debt or performed the duty 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, and the payment or performance made by the surety is not pleadable in bar of any action or other proceeding by him or her.

(3) A co-surety, co-contractor or co-debtor is not entitled to recover from any other co-surety, co-contractor or co-debtor, by the means referred to in subsections (1) and (2), more than the just proportion to which, as between those parties themselves, the other co-surety, co-contractor or co-debtor is justly liable.

Writ of execution to bind goods only from time of seizure

35  (1) In this section, "writ of execution" includes an order for seizure and sale issued under the Small Claims Rules.

(2) A writ of execution or writ of attachment against the goods of a debtor does not prejudice the title to the goods acquired by any person in good faith and for valuable consideration before the actual seizure or attachment under the writ if the person, at the time when the person 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.

Assignment of debts and choses in action

36  (1) An absolute assignment, in writing signed by 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 is deemed to have been effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if this Act had not been enacted, 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 debt or chose in action, and the power to give a good discharge for the debt or chose in action, without the concurrence of the assignor.

(2) 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 the assignor, or of any other opposing or conflicting claims to the debt or chose in action, the debtor, trustee or other person

(a) is entitled to call on the persons making the claim to interplead concerning the debt or chose in action, or

(b) may pay the debt or chose in action into court, under and in conformity with the Trustee Act.

Vesting orders

37  (1) 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 it were executed.

(2) An order made under subsection (1) 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 person.

Execution of instruments by order of court

38  (1) If any person neglects or refuses to comply with a judgment or order directing the person 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 must be executed or that the negotiable instrument must be endorsed by a person the court may nominate for that purpose.

(2) If an order is made under subsection (1), the conveyance, contract, document or instrument executed or endorsed operates and is for all purposes available as if it had been executed or endorsed by the person originally directed to execute or endorse it.

Injunction or mandamus may be granted or receiver appointed by interlocutory order

39  (1) An injunction or an order in the nature of mandamus 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.

(2) An order made under subsection (1) may be made either unconditionally or on terms and conditions the court thinks just.

(3) If an injunction is requested either before, at or after the hearing of a 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.

Railway company not to be restrained on application made without notice

40  If the application is made without notice, a restraining order or injunction must not be granted on tan application of a plaintiff or defendant against a railway company constructing or operating a railway in British Columbia, by which the work of actual construction or operation of the line of railway or any part of it will or may be impeded or delayed, unless it is reasonably apparent that some irreparable damage will ensue.

Railway company may be ordered to pay money into court

41  On an application for a restraining order or injunction under section 40, if 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, the judge may, in place of granting it, order the railway company intended to be enjoined to pay into court a sum of money that will, in the judge's opinion, be sufficient to compensate the applicant for the injunction against all loss, damage and costs that may be sustained by the applicant because of the works or other acts complained of.

Applicant for injunction to furnish security

42  (1) On the hearing of any application under section 40, 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 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 that it may sustain because of the injunction, or on account of the circumstances under which the payment into court is directed.

(2) The judge may order further security to be given.

Rule in Cumber v. Wane abrogated

43  Part performance of an obligation either before or after a breach of it, when expressly accepted by the creditor in satisfaction or rendered under an agreement for that purpose, though without any new consideration, must be held to extinguish the obligation.

If rules of equity and law conflict, equity prevails

44  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 prevail.

Uncertain terms in specified leases

45  (1) A rule of law that a lease, grant, demise or agreement is void because its term is uncertain does not apply, and is deemed never to have applied,

(a) to a mining, petroleum or natural gas lease 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 with those purposes, or

(b) to a lease of the whole or any part of land or a building if that land, building or part is, or forms or becomes part of, the common property of a strata corporation or, without limiting the generality of the foregoing, to a lease, grant, demise or agreement granting or assigning rights in relation to some or all of that land, building or part.

(2) Subsection (1) applies to instruments coming into operation before, on and after April 3, 1947.

Repealed

46  [Repealed 2009-13-234.]

Charitable trusts

47  If 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 invalid as a result but operates solely for the benefit of the charitable purpose.

Action by claimant under labour and material bonds

48  A claimant under a labour and material bond has a cause of action against the surety named in the bond if the principal named in the bond defaults in the principal's obligations under it and may commence an action against the surety on the claimant's own behalf and on behalf of other claimants to recover the amount of the claim.

Repealed

49  [Repealed 2009-13-234.]

Repealed

50  [Repealed 2009-13-234.]

Repealed

51  [Repealed 2009-13-234.]

Court to consider interest of child

52  (1) In proceedings involving the guardianship, custody, access to, contact with or support of a child the court must consider the best interests of the child.

(2) Subsection (1) does not apply in proceedings under the Child, Family and Community Service Act except as provided in that Act.

Proceeding and order against one of several persons jointly liable

53  (1) If a party has a demand recoverable against 2 or more persons jointly liable, it is sufficient if any of those persons is served with process, and an order may be obtained and execution issued against the person served even if 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 have been served with process or not.

(3) Every person against whom an order has been obtained who has satisfied the order is entitled to demand and recover in the court contribution from any other person jointly liable with the person.

Conditions precedent

54  If the performance of a contract is suspended until the fulfillment of a condition precedent, a party to the contract may waive the fulfillment of the condition precedent, even if the fulfillment 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 fulfillment of the condition precedent, and

(c) where a time is stipulated for fulfillment of the condition precedent, the waiver is made before the time stipulated, and where a time is not stipulated for fulfillment of the condition precedent, the waiver is made within a reasonable time.

Art exempt from seizure

55  (1) A proceeding for possession or for a property interest must not be brought in respect of works of art or objects of cultural or historical significance brought into British Columbia for temporary public exhibit.

(2) Subsection (1) does not apply

(a) to proceedings in respect of a contract for transportation, warehousing or exhibition in British Columbia of the work or object, or

(b) to a work or object that is offered for sale.

Discount rates

56  (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 that is 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 that is 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) must 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) must be used in calculating the present value of all future damages other than those referred to in subsection (3).

Recovery of property

57  (1) In an action for the recovery of specific property, other than land, the court may, if 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) If an order is made under subsection (1) and the action is dismissed,

(a) the claimant must

(i)   return the property to the person who surrendered it, and

(ii)   compensate that person for any loss suffered or damage sustained by that person because of that person's 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.

Warrants of Attorney, etc.

58  No Cognovit Actionem or Warrant of Attorney to confess judgment has any force or effect.

Enforceability of contracts

59  (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 that party's 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 the person's 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 that party or on that party's behalf of a deposit or part payment of a purchase price.

(5) If 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.

Spousal capacity and property

60  (1) For all purposes of the law of British Columbia, a married person has a legal personality that is independent, separate and distinct from that of his or her spouse.

(2) A married person has and must be accorded legal capacity for all purposes and in all respects as if the person were unmarried.

(3) Without limiting subsections (1) and (2),

(a) each of the parties to a marriage has the same right of action in tort against the other as if they were not married,

(b) a married woman is capable of acting as litigation guardian 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 must 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) must be so construed.

(5) Subsection (3) (a) does not apply if the cause of action arose before April 17, 1985.

Responsibility for former spouse

60.1  (1) This section applies if a court

(a) makes absolute a decree of divorce,

(b) renders judgment granting a divorce and a certificate has been or could be issued under the Divorce Act (Canada) stating that the marriage was dissolved,

(c) makes an order for judicial separation, or

(d) declares a marriage to be null and void.

(2) Subject to the Family Law Act, on the happening of an event described in subsection (1),

(a) each former spouse must be considered an unmarried person in respect of property, the right to contract, and rights and duties in civil proceedings, and

(b) a former spouse is not, except if the liability arose during the marriage, liable for

(i)   a contract the other former spouse enters into,

(ii)   a wrongful act or omission by the other former spouse, or

(iii)   costs incurred by the other former spouse in a proceeding.

Repealed

61  [Repealed 2013-25-399.]

Performance under protest

62  (1) In this section:

"electing party" means a party to a contract who, in response to a requirement by a requiring party, makes an election under subsection (2);

"notice of protest" means a notice, given under subsection (3), 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.

(2) If 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

(d) money paid

by the electing party in the course of that performance beyond that which the contract required the electing party to do.

(3) An electing party is not entitled to compensation under subsection (2) unless, within a reasonable time after the electing party is informed that the performance is required, the electing party gives notice to the requiring party that the performance is under protest.

(4) 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.

(5) A notice of protest has no effect unless it is communicated in accordance with every specification referred to in subsection (4) that is included in the contract.

(6) 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 the person 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.

(7) Nothing in this section limits the right of a party to recover compensation on any other basis.

Action per quod servitium amisit

63  (1) No action is maintainable for damages for loss of servitium.

(2) Without restricting subsection (1), the action per quod servitium amisit is abolished.

Receivers and receiver-managers

64  (1) In the provisions adopted under subsection (2), "receiver" includes a 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 the provisions adopted under subsection (2) are in addition to any other powers a court may exercise in its jurisdiction over receivers.

Not in force. Repealed.

65–67  [Not in force. Repealed 2006-33-1.]

Alternate dispute resolution

68  (1) The Lieutenant Governor in Council may make regulations respecting mediation including, without limitation, regulations

(a) providing to parties to a court proceeding in the Supreme Court the ability to require the other parties to the proceeding to engage in mediation and setting out when and how that ability may be exercised,

(b) providing to parties to a court proceeding in the Provincial Court the ability to require the other parties to the proceeding to engage in mediation and setting out when and how that ability may be exercised or requiring those parties to engage in mediation,

(c) setting out the rights and duties that accrue to the parties to a court proceeding, the court and the mediator if mediation is required in relation to that court proceeding, and

(d) respecting

(i)   the forms and procedures that must or may be used or followed before, during and after the mediation process,

(ii)   requiring and maintaining confidentiality of information disclosed for the purposes of mediation,

(iii)   the circumstances, if any, and manner in which a party to a court proceeding may opt out of or be exempted from mediation,

(iv)   the costs and other sanctions that may be imposed in relation to mediation, including, without limitation, in relation to any failure to participate in mediation when and as required or otherwise to comply with the regulations, and

(v)   the qualifications required for, and the selection and identification of, individuals who may act as mediators in the mediation process contemplated by the regulations.

(2) If and to the extent that there is any conflict between the regulations made under subsection (1) and any other enactment, including, without limitation, the rules of any court, the regulations made under subsection (1) prevail.

(3) Regulations under subsection (1)

(a) may provide for a mediation process to be applicable to court proceedings brought out of one or more court registries,

(b) may be different for court proceedings brought out of different court registries, and

(c) may be made in relation to all or some types of court proceedings and may be different for different types of court proceedings.