Commercial Law Strategy Activities Report 2002

III. ENACTMENT STATUS OF UNIFORM ACTS TARGETED AS PRIORITIES

In my Introduction, I noted that the third priority established by the Steering Committee for the past year was promotion of the speedy enactment of five uniform acts previously adopted by the Conference. My activities in this regard have involved promotion of the targeted acts with government representatives of the jurisdictions and with stakeholder organizations.

With respect to the first group, when I met with various ministers, deputy ministers, policy advisors and others government representatives, I informed them of this priority, identified those acts which remained to be implemented in their respective jurisdictions and advised them of the interested stakeholders in their jurisdiction. At times, they expressed surprise that a particular act had not yet been implemented and undertook to take steps to accomplish this. As a general rule, the response I received when discussing this aspect of the Strategy's priorities was very supportive. It was apparent that failure to implement these uniform acts was not due to lack of interest in or support for them. Rather, it often appeared to be the result of a combination of lack of government resources to carry out the work required for enactment, lack of time on the legislative agenda and the failure of interested stakeholders to exert sufficient pressure on the government.

I have emphasized to government representatives the benefits of participating in the development of uniform acts through the Conference where the lion's share of the work can be carried out by discrete groups of experts and government representatives on behalf of all jurisdictions. This leveraging of resources is beneficial from both financial and non-financial perspectives and should be effective provided we ensure that consultations with the jurisdictions and stakeholders occur regularly throughout the process.

My activities to promote the speedy enactment of the targeted uniform acts with respect to interested stakeholders consisted in my urging them to ensure that their support was signified to the relevant governments formally and repeatedly. I have emphasized that at the end of the day, it is really this stakeholder interest which will result in governments implementing particular uniform acts. The need for the act and broad support for its enactment must be clear and compelling. This is after all part of the Canadian political process.

Turning now to the enactment status of the five targeted acts, progress has been variable and further efforts of Jurisdictional Representatives to promote the acts would will be required.

Uniform Electronic Commerce Act

The exponential growth in electronic commerce we have experienced in the past few years and its borderless nature have made the need for clear, practical and consistent laws governing e-commerce transactions a pressing priority.

Recognizing this, in 1999 the Conference adopted the Uniform Electronic Commerce Act ("UECA"). The speed of implementation of this act is one of the Conferences's most remarkable achievements in recent years. Indeed, legislation based on the UECA has now been adopted by eleven jurisdictions - Manitoba, Ontario, Saskatchewan, Nova Scotia, PEI, Yukon, British Columbia, Alberta (not yet proclaimed), New Brunswick, Newfoundland and Canada (with variations). Although it did not adopt the uniform act, Québec has also legislated on this subject. (See An Act to establish a legal framework for information technology which was proclaimed in force on November 1, 2001).

This success story demonstrates the importance of involving stakeholders at an early stage in the process, leading to the development of an act which benefits from overwhelming support in the communities affected. Much of the credit for this success goes to John Gregory who spear-headed the project and maximized consultation through use of a listserv on the Internet.

Uniform Liens Act

The Uniform Liens Act adopted by the Conference in 1996 and amended in 2000 was also targeted for speedy enactment. This act makes a number of significant improvements to the common law. For example, it makes liens assignable, provides for non-possessory statutory liens for repairers, storers and carriers and makes it possible to register and enforce an out-of-province lien in the same manner as an in-province lien. It thus provides benefits to a wide variety of persons, but particularly small businesses and consumers by increasing sources of financing for the former and facilitating the grant of credit to the latter. A number of groups with which I met (especially those representing small businesses) have expressed an interest in this act.

Ontario has modern legislation in this area and two other provinces initiated work on this subject during the past year. Saskatchewan's bill came into force on March 1, 2002. Nova Scotia's Bill 22, An Act to Codify and Reform the Law Respecting Liens on Personal Property, which received royal assent on November 22, 2001 will come into force on proclamation. More recently, Yukon has approved the uniform act pending consultations with the private sector. Clearly much work remains to be done in this area.

Uniform Cost of Credit Disclosure Act

Federal and provincial legislation governing cost of credit disclosure was identified as a target for harmonization in the Agreement on Internal Trade signed by all governments in 1994. The Uniform Cost of Credit Disclosure Act subsequently adopted by the Conference in 1998 is based on a drafting template prepared by the Consumer Measures Committee which leaves significant matters to be addressed in regulations. For this reason, for effective harmonization to occur, the relevant Ministers must ensure that the regulations as well as the statutes they adopt are in harmony.

Progress on harmonizing this area of the law continues to be slow. Alberta was the first jurisdiction to implement the provisions of the Uniform Cost of Credit Disclosure Act in its Fair Trading Act. Relevant regulations adopted by Alberta after extensive consultations have been generally well received by interested parties. For this reason, in my meetings with government representatives during the past year I have encouraged them to model their regulations on the Alberta regulations.

British Columbia will become the second jurisdiction to implement cost of credit disclosure legislation. The B. C. regulations have now been passed and both the act and the regulations will come into force on September 1, 2002. (This was delayed from March 1 at the request of the industry.) The B.C. regulations can be consulted on the website of the Ministry of Public Safety and Solicitor General at www.gov.bc.ca/pssg.

Saskatchewan's Bill No. 25, The Cost of Credit Disclosure Act, 2002 received third reading on June 17 and royal assent on June 20, 2002. It will come into force on its proclamation which is planned for July 1, 2003. New Brunswick has enacted the legislation (with some modifications) and is currently working on developing the relevant regulations. Nova Scotia's Uniform Cost of Credit Disclosure Act adopted in November 2001 will come into force upon proclamation.

In Ontario, amendments have been passed to the Consumer Protection Act (CPA) as well as to several acts administered by the Ministry of Finance relative to mortgage brokers, credit unions, and insurance companies to establish standards for cost of credit disclosure. The Ontario Ministry of Consumer and Business Services is working on the regulations under the CPA which are expected to come into force some time in 2003, after the regulations have been filed and the financial sector given a period of time to develop materials and services to be in compliance. The Ministry of Finance is also working on regulations under their legislation. The various legislative amendments to incorporate cost of credit disclosure provisions in several Ontario acts were included in Bill 11 - the Red Tape Reduction Act, 1999.

Uniform Enforcement of Canadian Judgments and Decrees Act

Uniform Court Jurisdiction and Proceedings Transfer Act

The Steering Committee targeted for speedy enactment a couple of uniform acts relating to enforcement law - the Uniform Enforcement of Canadian Judgments and Decrees Act and the Uniform Court Jurisdiction and Proceedings Transfer Act adopted in 1997 and 1994 respectively.

The implementation of these acts across Canada would provide businesses operating across provincial boundaries with more certainty that, if difficulties arise in their transactions, their rights and ultimately their judgments will be enforceable. The jurisdiction act provides for Canadian courts to follow a uniform set of rules in determining whether they have jurisdiction to hear a case. Under the enforcement act, a judgment granted anywhere in Canada will be enforced in another jurisdiction in the same manner as one granted by a court of that jurisdiction.

Seven jurisdictions (BC, PEI, Saskatchewan, Newfoundland, New Brunswick [with modifications], Yukon and Nova Scotia) have enacted the Uniform Enforcement of Canadian Judgments Act . Of these, only Nova Scotia and Saskatchewan have enacted the part of the uniform act pertaining to decrees or non-monetary judgments). Of all of these, only the PEI legislation has been proclaimed in force. Proclamation of the Saskatchewan act is planned for the fall, 2002 and Ontario is currently looking at introducing a bill on this subject.

In my report last year I had noted that one of the reasons for the delay in proclamation of the enforcement act appears to be the reluctance of jurisdictions to enact legislation which will give rights to citizens of other jurisdictions on a non-reciprocal basis. At a meeting I had this past year with the Honourable Michael Baker, Minister of Justice for Nova Scotia, he indicated that he would raise with his colleagues in the other jurisdictions the possibility of arranging for simultaneous proclamation of this act.

The Uniform Court Jurisdiction and Proceedings Transfer Act has been adopted in two jurisdictions (Saskatchewan and Yukon) but neither act is in force.

The provisions of relevant Québec legislation are similar to those included in both of these uniform acts.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018