Regulations Amending the Federal Real Property Regulations (Miscellaneous Program): SOR/2020-134

Canada Gazette, Part II, Volume 154, Number 14

Registration

SOR/2020-134 June 18, 2020

FEDERAL REAL PROPERTY AND FEDERAL IMMOVABLES ACT

P.C. 2020-460 June 17, 2020

Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice and of the Treasury Board, pursuant to subsections 15(2) ^{footnote a} and 16(2) ^{footnote b} of the Federal Real Property and Federal Immovables Act ^{footnote c}, makes the annexed Regulations Amending the Federal Real Property Regulations (Miscellaneous Program).

Regulations Amending the Federal Real Property Regulations (Miscellaneous Program)

Amendments

1 The long title of the Federal Real Property Regulations ^{footnote 1} is replaced by the following:

Federal Real Property and Federal Immovables Regulations

2 Section 1 of the Regulations and the heading before it are repealed.

3 Sections 2 and 3 of the Regulations are replaced by the following:

2 The following definitions apply in these Regulations.

• acquisition means an acquisition on behalf of Her Majesty of real property or an immovable, including
  • (a) by lease as lessee;
  • (b) by acceptance of a gift, devise or legacy;
  • (c) by acceptance of a surrender or resiliation of a lease of federal real property or federal immovable; or
  • (d) by acceptance of a relinquishment of an easement on federal real property or by abandonment of a servitude on federal immovables.
• It does not include an acceptance of a transfer of administration or an acceptance of a transfer of administration and control. (acquisition)
• Act means the Federal Real Property and Federal Immovables Act. (Loi)
• disposition means a disposition by Her Majesty of federal real property or a federal immovable, including
  • (a) by lease as lessor;
  • (b) by gift;
  • (c) by surrender or resiliation of a lease as lessee; or
  • (d) by relinquishment of an easement of real property or by abandonment of a servitude on immovables where Her Majesty is the holder of the easement or servitude.
• It does not include a transfer of administration or transfer of administration and control. (disposition)

Application

3 (1) These Regulations do not apply in respect of

• (a) expropriations of real property or an immovable by Her Majesty; or
• (b) dispositions, other than by lease or easement or servitude, if the whole of the purchase price or other consideration is not received by Her Majesty at or before completion of the disposition.

(2) Despite paragraph (1)(b) and the fact that the whole of the purchase price or other consideration is not received by Her Majesty at or before completion of the disposition, these Regulations apply in respect of dispositions to a Crown corporation, within the meaning of subsection 83(1) of the Financial Administration Act, whose instrument or act of incorporation specifically limits its activities or businesses to the purposes and objectives of acquiring, purchasing, leasing, holding, improving, managing, exchanging, selling, turning into account or otherwise dealing in or disposing of personal property or real property or of any interest in that property, or of movables or immovables or of a real right in that property.

(3) Sections 7 to 10 do not apply to leases, surrenders or resiliations of leases or to acceptances of surrenders or resiliations of leases.

4 (1) Subsection 4(1) of the French version of the Regulations is replaced by the following:

4 (1) Un ministre peut procéder à une acquisition ou à une disposition ou prendre une option d’acquisition ou de disposition.

(2) The portion of subsection 4(2) of the Regulations before paragraph (a) is replaced by the following:

(2) A Minister may, in respect of real property or an immovable,

(3) Subsection 4(3) of the Regulations is replaced by the following:

(3) A Minister may provide utilities and other services on or from federal real property or a federal immovable that is under the Minister’s administration and may impose fees, charges and rates for those services.

5 Section 5 of the Regulations is replaced by the following:

5 (1) A Minister may transfer to Her Majesty in right of a province, by instrument or act satisfactory to the Minister of Justice, the administration and control of the entire or any lesser interest, or any right, of Her Majesty in any federal real property or any federal immovable, either in perpetuity or for any lesser term.

(2) A Minister may accept on behalf of Her Majesty a transfer of the administration and control satisfactory to the Minister of Justice of the entire or any lesser interest, or any right, of Her Majesty in right of a province in any real property or immovable, including transfers made by grant, concession, vesting order or other conveyancing instrument or other transfer act, either in perpetuity or for any lesser term.

(3) In the case of retrocession or reversion to Her Majesty in right of a province or Her Majesty in right of Canada of the administration and control of the entire or any lesser interest, or any right, in any real property or immovable, a Minister may give effect to that retrocession or reversion by instrument or act satisfactory to the Minister of Justice, despite the requirement, in the original transfer of administration and control, to proceed by order in council or written notice.

6 (1) Paragraph 6(1)(a) of the Regulations is replaced by the following:

• (a) transfer the administration of any federal real property or federal immovable to another Minister or to an agent corporation that has the authority under any other Act of Parliament to acquire the real property or immovable;

(2) Paragraph 6(1)(c) of the Regulations is replaced by the following:

• (c) accept the transfer of the administration of any federal real property or federal immovable from another Minister or from an agent corporation that has the authority under any other Act of Parliament to dispose of the real property or immovable; and

7 Paragraphs 7(a) and (b) of the Regulations are replaced by the following:

• (a) in an acquisition, agree to pay, in addition to the purchase price of and other consideration for the real property or immovable, any amounts that the Minister may approve in respect of the legal fees and disbursements of the owner of the real property or immovable that are reasonably incurred, and any taxes and other adjustments; and
• (b) if the completion of an acquisition is unreasonably delayed through no fault of the owner of the real property or immovable, pay interest for the period of the delay at a rate that is not greater than 1.5% above the average accepted tender rate of Government of Canada three month Treasury Bills, as announced by the Bank of Canada on behalf of the Minister of Finance, which tender rate must be the last tender rate to be announced before the day on which the contract was executed or, in Quebec, signed.

8 (1) Subsection 8(2) of the Regulations is replaced by the following:

(2) A Minister may make a partial payment in respect of an acquisition of real property or an immovable that is within Canada, before the completion of the acquisition, under an arrangement satisfactory to the Minister of Justice that ensures its repayment to Her Majesty if the Minister of Justice is not satisfied as to good title.

(2) The portion of subsection 8(4) of the Regulations before paragraph (b) is replaced by the following:

(4) The Minister of Foreign Affairs may, in respect of the acquisition of real property or an immovable outside Canada, make a payment if the payment

• (a) is in accordance with the commercial practice of the jurisdiction in which the real property or immovable is situated;

(3) Paragraph 8(4)(c) of the French version of the Regulations is replaced by the following:

• c) est versé selon une entente qui prévoit la prise de possession de l’immeuble ou du bien réel par Sa Majesté dès que le paiement intégral aura été effectué.

(4) The portion of subsection 8(5) of the Regulations before paragraph (b) is replaced by the following:

(5) Despite subsection (4), the Minister of Foreign Affairs may, in respect of the acquisition of real property or an immovable that is situated in a jurisdiction in which the title to or ownership of real property or an immovable within that jurisdiction cannot be determined or certified by and to the satisfaction of the Minister of Justice, make a payment if the payment

• (a) is in accordance with the commercial practice of the jurisdiction in which the real property or immovable is situated; and

(5) Paragraph 8(5)(b) of the French version of the Regulations is replaced by the following:

• b) est versé selon une entente qui prévoit la prise de possession de l’immeuble ou du bien réel par Sa Majesté dès que le paiement intégral aura été effectué.

9 (1) Subsection 9(1) of the French version of the Regulations is replaced by the following:

9 (1) Sous réserve du paragraphe (2), un ministre renvoie chaque disposition au ministre de la Justice en vue de l’établissement et de l’approbation de la forme et de la teneur juridique de la concession de l’État.

(2) Paragraphs 9(2)(a) and (b) of the Regulations are replaced by the following:

• (a) the Minister of Foreign Affairs, if the performance of legal services in respect of a disposition is authorized under section 4 of the Government Contracts Regulations; or
• (b) the Minister responsible for the Royal Canadian Mounted Police or the Minister responsible for the Canadian Security Intelligence Service, if a disposition is in respect of real property or an immovable acquired for the purpose of pursuing investigations described in paragraph 8(3)(b).

10 (1) The portion of section 10 of the Regulations before paragraph (a) is replaced by the following:

10 If a Minister, in an option for an acquisition, is granted the right to enter and conduct tests in respect of the real property or immovable that is subject to the option, the Minister may agree with the person granting the option

(2) Paragraph 10(a) of the French version of the Regulations is replaced by the following:

• a) de l’indemniser contre les réclamations et revendications auxquelles a donné lieu l’exercice de son droit de pénétrer dans l’immeuble ou le bien réel;

(3) Paragraphs 10(b) and (c) of the Regulations are replaced by the following:

• (b) to repair or to pay compensation in respect of any damage done to any real property or immovable of that person, other than the real property or immovable that is the subject of the option, that arises as a result of the Minister exercising the right to enter; and
• (c) in the event that the option is not exercised, to repair or to pay compensation for any damage done to the real property or immovable that is subject to the option that arises as a result of the Minister exercising the right to enter.

11 (1) The portion of subsection 11(1) of the English version of the Regulations before paragraph (a) is replaced by the following:

11 (1) The Minister of Justice must establish and operate a document depository at the Department of Justice that contains copies of the following instruments or acts:

(2) Paragraphs 11(1)(a) to (c) of the Regulations are replaced by the following:

• (a) grants or concessions of federal real property or a federal immovable, including grants or concessions by instruments or acts referred to in paragraph 5(1)(b), subsections 5(2) and (3) and section 7 of the Act, other than letters patent, notifications, leases or grants or concessions in respect of a disposition of any real property or immovable that was the subject of an acquisition described in paragraph 8(3)(b);
• (b) transfers of administration and control of real property or an immovable and acceptances of those transfers;
• (c) transfers of administration of federal real property or a federal immovable and acceptances of those transfers; and

(3) The portion of subsection 11(2) of the Regulations before paragraph (c) is replaced by the following:

(2) Except in the case of a disposition of real property or an immovable that was the subject of an acquisition described in paragraph 8(3)(b), a copy of the instrument or act must immediately be sent to the document depository by the Minister who

• (a) ceases to have the administration of any federal real property or federal immovable by virtue of
  • (i) a grant or a concession referred to in paragraph (1)(a),
  • (ii) a transfer of administration and control of the federal real property or federal immovable to Her Majesty in any right other than of Canada, or
  • (iii) a transfer of administration of the federal real property or federal immovable to an agent corporation;
• (b) acquires the administration of any federal real property or federal immovable by virtue of
  • (i) a transfer of administration and control of real property or an immovable to Her Majesty and the acceptance of that transfer, or
  • (ii) a transfer of administration of the federal real property or federal immovable from another Minister or an agent corporation and the acceptance of that transfer; or

(4) Subsection 11(3) of the English version of the Regulations is replaced by the following:

(3) Instruments, acts and information may be recorded or stored in the document depository by any means.

Coming into Force

12 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Department of Justice’s initiative to harmonize federal law with the civil law of Quebec, which is based on the Policy on Legislative Bijuralism of 1995, aims to revise federal statutes and regulations, when they refer to the private law of the provinces and territories, so that they are compatible with the concepts and terminology of both civil law and common law. The current amendments to the Federal Real Property Regulations (SOR/92-502) are made within the framework of this initiative. As part of the Federal Law-Civil Law Harmonization Act, No. 1 (S.C. 2001, c. 4), the Federal Real Property and Federal Immovables Act (S.C. 1991, c. 50) was previously amended for harmonization purposes, which entailed amending its title so as to include both the appropriate common law and civil law terminology.

In order to render the Federal Real Property Regulations (the Regulations) more accessible and understandable, the wording of the Regulations must be amended to include terminology that is consistent with both civil law and common law. The amendments are terminological, technical in nature, non-controversial and do not alter the policy intentions of the Regulations. Rather, they ensure that the policy underlying the provisions in question is implemented in light of both the common law and the civil law, and in both official languages.

Objective

The amendments facilitate access to justice by harmonizing the Regulations with the provincial and territorial private law through the use of a terminology that is consistent with the civil law and common law traditions, in both official languages. The amendments also ensure that the wording and terms used in the Regulations are in keeping with those used in the already harmonized enabling statute, the Federal Real Property and Federal Immovables Act (the Act).

Description and rationale

Making regulations easier to understand by Canadians, whether they are governed by the civil law or common law tradition, in both French and English, provides better access to justice.

The following amendments are made to the Regulations:

• The title Federal Real Property Regulations is replaced by Federal Real Property and Federal Immovables Regulations in English, and by Règlement sur les immeubles fédéraux et les biens réels fédéraux in French, which is consistent with the title of the Act, as previously harmonized.
• At section 2, in the definitions of “acquisition” and “disposition,” paragraph 3(1)(a), subsection 3(1.1), subsections 4(2) and (3), subsections 5(1), (2) and (3), paragraphs 6(1)(a) and (c), paragraphs 7(a) and (b), subsections 8(2) and (4), paragraphs 8(4)(a) and (c), subsection 8(5), paragraphs 8(5)(a) and (b), paragraph 9(2)(b), section 10, paragraphs 10(a), (b) and (c), paragraphs 11(1)(a), (b) and (c), subsection 11(2), paragraph 11(2)(a), subparagraphs 11(2)(a)(ii) and (iii), paragraph 11(2)(b) and subparagraphs 11(2)(b)(i) and (ii): in the French version, “ou bien(s) réel(s)” is added after the term “immeuble(s)”; and in the English version, “or immovable(s)” is added after the term “real property” in order to include the civil law and common law concepts in both linguistic versions.
• At section 2, in the definition of “acquisition”: “by lease” / “par voie de bail” are replaced by “by lease as lessee” / “par voie de bail à titre de locataire” in order to include the civil law and common concepts in both linguistic versions.
• At section 2, in the definition of “acquisition”: in the English version, “gift, devise” is replaced by “by acceptance of a gift, devise or legacy” in order to include the civil law concept; and in the French version, “d’acceptation” is added to be consistent with the English version.
• At section 2, in the definition of “acquisition” and subsection 3(2): in the English version, “or resiliation” is added in order to include the civil law concept; and in the French version, the term “rétrocession” is replaced by “la résiliation ou résignation d’un bail” in order to include the civil law and common law concepts.
• At section 2, in the definition of “acquisition”: in the English version, “abandonment of a servitude” is added in order to include the civil law concept.
• At section 2, in the definition of “Act”: the title Federal Real Property Act is replaced by Federal Real Property and Federal Immovables Act in English, and Loi sur les immeubles fédéraux is replaced by Loi sur les immeubles fédéraux et les biens réels fédéraux in French, which is consistent with the title of the Act, as previously harmonized.
• At section 2, in the definition of “aliénation,” paragraph 3(1)(b), subsection 3(1.1), subsection 4(1), paragraph 6(1)(c), subsection 9(1), paragraphs 9(2)(a) and (b), paragraph 11(1)(a) and subsection 11(2): in the French version, the terms “aliénation(s)” and “aliéner” are replaced by the terms “disposition(s)” and “disposer” in order to refer to the concept of “disposition,” which is broader in both common and civil law.
• At section 2, in the definition of “disposition”: in both linguistic versions, “by lease” / “par voie de bail” are replaced by “by lease as lessor” / “par voie de bail à titre de locateur” in order to refer to the civil law and common concepts of “lessor” / “locateur.”
• At section 2, in the definition of “disposition”: in the English version, “or resiliation of a lease as lessee” is added in order to include the civil law concept; and in the French version, the term “rétrocession” is replaced by “la résiliation ou résignation d’un bail à titre de locataire” in order to include the civil law and common law concepts.
• At section 2, in the definition of “disposition”: in the English version, “abandonment of a servitude as holder” is added in order to include the civil law concept; and in the French version, “dont elle est titulaire” is added in order to be consistent with the English version.
• At paragraph 3(1)(b): in the English version, “or servitude” is added in order to include the civil law concept.
• At subsection 3(1.1), subsections 5(1) and (3), subsection 11(1), paragraph 11(1)(a) and subsections 11(2) and (3): in the English version, “or act(s)” is added after the term “instrument(s)” in order to include the civil law concept.
• At subsection 3(1.1): in the French version, “des biens personnels ou des biens réels” is added; and in the English version, “movables or immovables” is added in order to include the civil law and common law concepts.
• At subsection 3(1.1): in the French version, “des intérêts” is added; and in the English version, “real right” is added in order to include the civil law and common law concepts.
• At subsections 5(1), (2) and (3): in the English version, “or any right” is added to “any lesser interest”; and in the French version, “de la totalité ou d’une partie des droits réels” is replaced by “de tout droit ou de tout intérêt ou intérêt moindre” in order to include the civil law and common law concepts.
• At subsection 5(2), paragraph 11(1)(a) and subparagraph 11(2)(a)(i): in the English version, the term “concession” is added after the term “grant” in order to include the civil law concept.
• At subsection 5(2): in the English version, “or other transfer act” is added in order to include the civil law concept; and in the French version, “acte de cession” is replaced by “acte de transfert ou transport” in order to include both the civil law and common law concepts.
• At subsection 5(2): in the French version, the term “ordonnance” is added before the term “dévolution” in order to include the civil law concept.
• At paragraph 7(b): in the English version, “or, in Quebec, signed” is added after “executed” in order to include the civil law concept.

These amendments do not impose any costs on the Government or stakeholders.

One-for-one rule

The one-for-one rule does not apply to these amendments, as there is no change in administrative costs or burden to businesses.

Small business lens

The small business lens does not apply to these amendments, as there are no costs to small businesses.

Contact

Luc Gagné
General Counsel and Director
Bijuralism and Advisory Services Section
Legislative Services Branch
Public Law and Legislative Services Sector
Department of Justice Canada
Telephone: 613‑952‑1119 
Email: lgagne@justice.gc.ca