2nd Session, 43rd Legislature

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Bill 31

THE PROPERTY CONTROLS FOR GROCERY STORES AND SUPERMARKETS ACT (VARIOUS ACTS AMENDED)

(Assented to                                         )

HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1
THE LAW OF PROPERTY ACT

C.C.S.M. c. L90 amended

1   The Law of Property Act is amended by this Part.

2   The following is added after section 7:

Definitions

7.1(1)   The following definitions apply in this section and sections 7.2 and 7.3.

"convenience store" means a store that offers for sale a variety of food products and that is less than 280 m². (« dépanneur »)

"exclusivity clause" means a covenant or other provision in a lease or other agreement that has the purpose or has or is likely to have the effect of impeding another person from operating a certain type of business. (« clause d'exclusivité »)

"grocery store" means a store other than a convenience store that

(a) offers for sale a variety of the following types of food products primarily for preparation and consumption outside the store:

(i) canned, dry and frozen foods,

(ii) fresh fruit and vegetables,

(iii) meats, fish and poultry, whether fresh or prepared,

(iv) dairy products,

(v) bakery products, including products baked in-store,

(vi) snack foods; or

(b) meets the criteria set out in the regulations. (« épicerie »)

"person" includes a partnership, joint venture and trust or any other organization or entity, whether incorporated or not. (« personne »)

"property control" means a restrictive covenant or exclusivity clause described in subsection (3). (« instrument de contrôle de bien-fonds »)

"related" means related as defined in the regulations. (« lié »)

"restrictive covenant" means a covenant or condition that has the purpose or has or is likely to have the effect of impeding the development or use of land or any portion of land as a certain type of business. (« covenant restrictif »)

"supermarket" means a grocery store that is at least 929 m². (« supermarché »)

Meaning of other words and expressions

7.1(2)   Words and expressions used in this section and sections 7.2 and 7.3 but not defined in subsection (1) have the same meaning as they have in The Real Property Act.

Application

7.1(3)   This section applies to the following restrictive covenants and exclusivity clauses that affect land, however created and whether or not registered against the title to the land:

(a) a restrictive covenant that directly or indirectly restricts the sale, ownership, development or use of land as a grocery store or supermarket;

(b) an exclusivity clause that directly or indirectly restricts the sale, ownership, development or use of land as a grocery store or supermarket granted in favour of

(i) a person who, directly or indirectly, owns or operates a supermarket, or

(ii) a person who is related to a person who, directly or indirectly, owns or operates a supermarket.

New property controls prohibited

7.1(4)   A property control created on or after the day this section comes into force is void.

Existing property controls void unless registered

7.1(5)   A property control created before the day this section comes into force is void unless

(a) the holder of the property control makes a registration against title to the affected land under subsection 152.1(3) of The Real Property Act within 180 days after the day this section comes into force; and

(b) the registration is accepted by the district registrar within 210 days after the day this section comes into force.

Registered property control may be discharged, removed or amended

7.1(6)   A property control registered in accordance with subsection (5) may be discharged, removed or amended if the Municipal Board determines that the property control is contrary to the public interest under Part IV.1 of The Municipal Board Act.

Non-application

7.1(7)   This section does not apply to a restrictive covenant or exclusivity clause that

(a) is granted in favour of or imposed by

(i) the government or an agency of the government,

(ii) the Government of Canada or an agency of the Government of Canada,

(iii) a municipality, a local government district or an incorporated community established or continued under The Northern Affairs Act, or

(iv) any other public body designated in the regulations;

(b) is a building restriction covenant or development scheme;

(c) is a restrictive covenant that imposes restrictions based solely on the zoning of the land; or

(d) is exempted by regulation.

Certain exclusivity clauses amended

7.2   An exclusivity clause that affects land, however created and whether or not registered against the title to the land,

(a) that is granted in favour of someone other than a person who, directly or indirectly, owns or operates a supermarket or a person who is related to such a person; and

(b) that has the direct or indirect effect of restricting the sale, ownership, development or use of land as a supermarket;

is deemed to be amended to remove this restriction.

Regulations

7.3   The Lieutenant Governor in Council may make regulations

(a) for the purpose of the definition "grocery store" in subsection 7.1(1),

(i) restricting or limiting the scope, and

(ii) prescribing criteria for the purpose of clause (b) of the definition;

(b) defining "related" for the purpose of subsection 7.1(1);

(c) designating public bodies for the purpose of subclause 7.1(7)(a)(iv);

(d) exempting classes of restrictive covenants or exclusivity clauses or both for the purpose of clause 7.1(7)(d);

(e) respecting any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the purpose of sections 7.1 and 7.2.

PART 2
THE REAL PROPERTY ACT

C.C.S.M. c. R30 amended

3   The Real Property Act is amended by this Part.

4(1)   Clause 110(1)(b) is amended by striking out "or" at the end of subclause (ii) and adding the following after subclause (ii):

(ii.1) prevent an instrument or caveat from becoming void by operation of section 7.1 of The Law of Property Act in accordance with subsection 152.1(3) of this Act, or

4(2)   The following is added after subsection 110(2):

Consent — grocery store or supermarket property control

110(2.1)   Consent of all persons appearing on the register to have a claim or interest subsequent in priority to the encumbrance is not required under subsection (2) in respect of a registration made under clause 152.1(3)(b) unless the amendment broadens the scope or effect of the property control to which section 7.1 of The Law of Property Act applies as determined by the district registrar.

5   The following is added after section 152 and before the centred heading that follows it:

PROPERTY CONTROLS — GROCERY STORES AND SUPERMARKETS

Definitions

152.1(1)   The following definitions apply in this section and sections 152.2 to 152.4.

"grocery store or supermarket property control" means a restrictive covenant or exclusivity clause to which section 7.1 of The Law of Property Act applies. (« instrument de contrôle de bien-fonds visant une épicerie ou un supermarché »)

"limited registration period" means the period beginning on the day that section 7.1 of The Law of Property Act comes into force and ending on the day that is 180 days after that. (« période d'enregistrement limitée »)

Registration of property controls prohibited

152.1(2)   Except as provided in this section,

(a) a person must not register or file an instrument or caveat creating or claiming an interest by virtue of a grocery store or supermarket property control that is or would become void by operation of section 7.1 of The Law of Property Act; and

(b) a district registrar must not accept for registration or filing an instrument or caveat described in clause (a) if the district registrar is satisfied from the face of the record that the interest created or claimed is or would become void by operation of section 7.1 of The Law of Property Act.

Registration of existing property controls during certain time period

152.1(3)   During the limited registration period, the holder of a grocery store or supermarket property control created before the day section 7.1 of The Law of Property Act comes into force may file or register, and the district registrar may accept for filing or registration,

(a) a caveat if a filing or registration has never been made in respect of the grocery store or supermarket property control; or

(b) a memorandum of agreement described in subclause 110(1)(b)(ii.1) that amends an existing registration in respect of the grocery store or supermarket property control.

Requirements for registration

152.1(4)   The caveat or memorandum of agreement presented for filing or registration must include the following:

(a) a description of the land and parties affected by the grocery store or supermarket property control;

(b) a description of the dominant and servient tenement, if applicable, and the municipal address of the land affected by the property control;

(c) a description of the restrictions imposed by the control and the time period during which they apply;

(d) a description of the agreement creating the control, if applicable;

(e) for a memorandum of agreement amending an existing registration, the particulars of the existing registration and a statement

(i) confirming the interest claimed in the existing registration, or

(ii) claiming an amended interest and a description of that interest.

Effect of filing or registration

152.1(5)   The effect of the filing or registration is to prevent the grocery store or supermarket property control from becoming void by operation of section 7.1 of The Law of Property Act.

Discharge after limited registration period expires

152.1(6)   If, after the limited registration period expires, the district registrar becomes aware that an instrument or caveat creating or claiming an interest by virtue of a grocery store or supermarket property control is void by operation of section 7.1 of The Law of Property Act, the district registrar must, as soon as reasonably practicable,

(a) discharge the instrument or caveat without notice to the holder; and

(b) notify the Registrar-General of the discharge.

Report of registrations and discharges

152.1(7)   As soon as reasonably practicable after the limited registration period expires, the district registrar for each district must provide the following without charge to the Registrar-General:

(a) a report of all registrations accepted under subsection (3) in their district and a copy of each registration;

(b) a report of all discharges made under section 152.2 or 152.3 in their district and a copy of each discharge, if applicable.

Registrar-General may order discharge

152.2   If the Registrar-General

(a) determines on the Registrar-General's own initiative; or

(b) is provided by any person proof satisfactory to the Registrar-General;

that an instrument or caveat creating or claiming an interest by virtue of a grocery store or supermarket property control is void by operation of section 7.1 of The Law of Property Act, the Registrar-General may order the district registrar to discharge the instrument or caveat without notice to the holder.

Review by minister

152.3(1)   The minister may, on the minister's own initiative, review an instrument or caveat creating or claiming an interest by virtue of a grocery store or supermarket property control to determine if the instrument or caveat may be contrary to the public interest.

Review requested by member of public

152.3(2)   A person may apply to the minister requesting a review of an instrument or caveat creating or claiming an interest by virtue of a grocery store or supermarket property control to determine if the instrument or caveat may be contrary to the public interest. The application must be made in the form and manner acceptable to the minister.

Minister may refer matter to Municipal Board

152.3(3)   If the minister determines that the instrument or caveat may be contrary to the public interest, the minister may refer the matter to the Municipal Board for a hearing under Part IV.1 of The Municipal Board Act.

Municipal Board may order discharge, removal or amendment

152.3(4)   If the Municipal Board makes an order after a hearing in respect of the instrument or caveat, the district registrar must, as directed by the Municipal Board, register an instrument, in a form approved by the district registrar, that discharges, removes or amends the instrument or caveat and notify the Registrar-General of the registration as soon as reasonably practicable.

No compensation

152.4   No person is entitled to compensation for any loss sustained as a consequence of

(a) a failure to file a caveat or memorandum of agreement in respect of a grocery store or supermarket property control in accordance with section 152.1 during the limited registration period; or

(b) the discharge, variance, cancellation or substitution of an instrument or caveat claiming an interest by virtue of a grocery store or supermarket property control under section 152.1, 152.2 or 152.3.

PART 3
THE MUNICIPAL BOARD ACT

C.C.S.M. c. M240 amended

6   The Municipal Board Act is amended by this Part.

7   The following is added as Part IV.1:

PART IV.1
PROPERTY CONTROLS — GROCERY STORES AND SUPERMARKETS

Definitions

104.1   The following definitions apply in this Part.

"limited registration period" means the period beginning on the day that section 7.1 of The Law of Property Act comes into force and ending on the day that is 180 days after that. (« période d'enregistrement limitée »)

"registered grocery store or supermarket property control" means an instrument or caveat creating or claiming an interest by virtue of a restrictive covenant or exclusivity clause to which section 7.1 of The Law of Property Act applies that is registered under The Real Property Act. (« instrument de contrôle de bien-fonds enregistré visant une épicerie ou un supermarché »)

"unregistered grocery store or supermarket property control" means a restrictive covenant or exclusivity clause to which section 7.1 of The Law of Property Act applies that has not been registered under The Real Property Act. (« instrument de contrôle de bien-fonds non enregistré visant une épicerie ou un supermarché »)

Application

104.2(1)   This Part applies to the following:

(a) a referral made to the board under subsection 152.3(3) of The Real Property Act in respect of a registered grocery store or supermarket property control;

(b) during the limited registration period, an application to the board by any person requesting a review of an unregistered grocery store or supermarket property control.

Request for review

104.2(2)   A request for review under clause (1)(b) must be made in the form and manner acceptable to the board.

Board must hold hearing

104.3(1)   The board must hold a hearing to determine whether a grocery store or supermarket property control, whether registered or unregistered, is contrary to the public interest and must not preserve the property control unless it is clearly in the public interest to do so.

Board must consider factors

104.3(2)   The board must consider whether

(a) the restrictions imposed by the grocery store or supermarket property control, such as geographic constraints, time period, scope and subject matter, are reasonable in the circumstances; and

(b) the effect of the restrictions imposed by the grocery store or supermarket property control results in or contributes to a lack of access to grocery stores or supermarkets serving the community in the surrounding area.

Holder of property control may make submission

104.3(3)   Before making an order under this Part, the board must give the holder of the grocery store or supermarket property control an opportunity to make a written submission or otherwise be heard.

Board decision

104.3(4)   If the board determines that the grocery store or supermarket property control is contrary to the public interest, the board must

(a) order the variation, cancellation or substitution, in whole or in part, of the property control; and

(b) order the discharge, removal or amendment of any instrument or caveat recording the property control.

No compensation

104.4   An order made under this Part must not include compensation for the holder of the registered or unregistered grocery store or supermarket property control or any other person.

PART 4
GENERAL PROVISIONS

No cause of action

8(1)   No cause of action arises as a direct or indirect result of the enactment of the following provisions (referred to in this section as the "property control provisions"):

(a) sections 7.1 to 7.3 of The Law of Property Act, as enacted by section 2 of this Act;

(b) section 110 of The Real Property Act, as amended by section 4 of this Act;

(c) sections 152.1 to 152.4 of The Real Property Act, as enacted by section 5 of this Act.

No remedy

8(2)   No costs, compensation or damages are owing or payable to any person and no remedy, including but not limited to a remedy in contract, restitution, tort or trust, is available to any person in relation to the enactment of the property control provisions.

Proceedings barred

8(3)   No action or other proceeding, including but not limited to any action or proceeding in contract, restitution, tort or trust, that is directly or indirectly based on or related to the enactment of the property control provisions shall be brought or maintained against the government or any person.

No entitlement to compensation

8(4)   Despite any other Act or law, no person is entitled to be compensated for any loss or damages, including loss of revenues, loss of goodwill, loss of profit or loss of expected earnings or denial or reduction of compensation that would have been payable to any person, arising from the enactment of the property control provisions.

No expropriation or injurious affection

8(5)   For greater certainty, no taking, expropriation or injurious affection occurs as a result of the enactment of the property control provisions.

Coming into force

9   This Act comes into force on the day it receives royal assent.