The commission launched a consultation report in October inviting readers “to provide their comments on … issues for discussion” around Manitoba acquiring a clear and usable process for claiming and dealing with such property, which also includes unpaid wages, pension funds and health benefits.
The report, titled Abandoned Accounts and Missing Money: Establishing a process for unclaimed intangible personal property, notes that Ontario, British Columbia, Alberta and Quebec have such legislation.
Right off the hop, the commission asks the obvious-yet-salient question: Should Manitoba have something similar?
As it stands, the report said a lack of legislation has resulted in an absence of clarity once unclaimed property is transferred to Manitoba’s legislature.
“Even where unclaimed personal property is remitted to the government, the (current) legislation provides no guidance for an individual to find out if they are the rightful owner,” it stated. “Other Canadian jurisdictions have enacted legislation to address unclaimed property so that money can end up in the hand of rightful owners.”
The commission’s report is guided by three principles: That unclaimed property not “rest indefinitely with holders,” that Manitoba join the other provinces in having proper legislation and that an accessible and efficient process be put in place for claimants.
(Bank accounts fall outside the commission’s report, due to banks being federally regulated.)
Kristal Bayes-McDonald, legal counsel with the commission, said it is largely the responsibility of Manitoba’s government to deal with unclaimed or escheat property.
As it stands, a claimant must approach Manitoba Justice about acquiring what they believe is theirs. An order from Manitoba’s cabinet would then be needed for the property to be released.
“So, it is a cumbersome, burdensome process from an administrative process and, also, our legislation … doesn’t set out the obligations and responsibilities of the administrator — in our situation, government — so they are completely left on their own accord to put together a process for this.”
She also said there is no appeal process if the claimant is denied, and that the only option would be to go to court.
Bayes-McDonald pointed to B.C., where an annual report is published detailing to whom the property belonged and, if it’s a case of it being intestate, who any likely heirs would be.
Manitoba enacting proper legislation would be of importance to lawyers in this area, she said.
“Lawyers are always rightly concerned about universality of law throughout the country. When every province has a different system, it is difficult and cumbersome for a lawyer, and it is very difficult to give advice to a client, particularly if they are dealing with multiple provinces, multiple schemes. From that perspective, the commission is always concerned … that where universality is available, that that is something the legislature should be striving for. … Other provinces are moving in this direction and, for that reason alone, it is necessary for Manitoba to at least look at this issue.”
Making the process more user-friendly would mean less cost for those claimants dealing with relatively modest amounts of property,” said Bayes-McDonald.
“This is an access to justice issue … because this is a process where, if done correctly, Manitobans should be able to access this system without needing to retain a lawyer. In situations where these amounts are not very high, which is the case some of the time, they should not have to retain counsel in order to navigate this type of legislation and this type of system; it should be user friendly.”
Bayes-McDonald said it is “always in the best interests of lawyers” when processes are available for situations where “the amount of money at stake is disproportionately small compared to the amount it would cost to retain legal representation.”
“When legal representation is required to navigate through a process and obtain the desired remedy — here, to obtain property you are legally entitled to — it is often necessary that legal services are provided at a steep discount. Also, generally, lawyers do view increased access to justice by the general public as beneficial. They understand most intimately how our legal processes impact on the lives of all citizens and how the need for transparent and accessible legal processes are crucial.”
Bayes-McDonald also said proper legislation would make it clear to property holders that property gone unclaimed after 12 years must be transferred to the Crown, noting this is “clearly set out” in Manitoba’s Vacant Property Act.
“We have been advised that not everyone is handing the property over,” she said.
Comments and suggestions are to be sent to the Manitoba Law Reform Commission, mail@manitobalawreform.ca, by Dec. 31, 2019.
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