Foreign Claims (People’s Republic of China) Settlement Regulations (SOR/82-381)

Short Title

1 These Regulations may be cited as the Foreign Claims (People’s Republic of China) Settlement Regulations.

Interpretation

2 In these Regulations,

Agreement

Agreement means the Agreement between the Government of Canada and the Government of the People’s Republic of China concerning the settlement of private property claims, signed at Beijing, August 20, 1981; (Accord)

Canadian citizen

Canadian citizen means

• (a) a person who is a Canadian citizen within the meaning of the Citizenship Act and who is not a citizen of any other country,

• (b) a person who is a Canadian citizen within the meaning of the Citizenship Act and who is also a citizen of another country but whose dominant nationality is Canadian, or

• (c) a corporation that is incorporated under the laws of Canada and that is substantially owned by persons described in paragraphs (a) or (b); (citoyen canadien)

certain bank accounts

certain bank accounts means the bank accounts in the People’s Republic of China of Daniel and Nina Gnarowski, Alexei I. Zaionchkovsky, Archibald H. Carter and G.T. Fulford Co. Ltd.; (certains comptes bancaires)

Chief Commissioner

Chief Commissioner means the Chief Commissioner of the Commission; (commissaire en chef)

claim

claim means a claim by a Canadian citizen against the Government of the People’s Republic of China in respect of property in the People’s Republic of China, including certain bank accounts, affected by measures of intervention, expropriation, state disposition and administration or other similar measures taken by the Government of the People’s Republic of China on or after October 1, 1949 and on or before August 20, 1981; (réclamation)

claimant

claimant means a Canadian citizen who has submitted a notice of claim to the Government of Canada; (réclamant)

Commission

Commission means the Foreign Claims Commission established by Order in Council P.C. 1981-1447 of May 28, 1981; (Commission)

Fund

Fund means the special account known as the Foreign Claims Fund established in the Consolidated Revenue Fund by the Minister of Finance pursuant to the Vote; (caisse)

Minister

Minister means the Secretary of State for External Affairs; (ministre)

notice of claim

notice of claim means a written communication that, in the opinion of the Commission, clearly defines the subject-matter of a claim; (avis de réclamation)

Vote

Vote means Vote 22a of Schedule B to Appropriation Act No. 9, 1966. (crédit)

Notice of Claim

• 3 (1) Every notice of claim received by the Government of Canada on or before October 20, 1981 shall be referred to the Commission.

• (2) Only claims in respect of which a notice of claim has been received by the Government of Canada on or before October 20, 1981 shall be considered by the Commission.

• (3) All documentary evidence on which a claimant intends to rely in establishing his claim shall be submitted to the Commission on or before June 1, 1982.

Eligibility of Claimant to Receive an Award

• 4 (1) In order to be eligible to receive an award in respect of a claim, a claimant must have been a Canadian citizen as of October 20, 1981 and the rights pertaining to the claim must have been held continuously by a Canadian citizen during the period commencing on the date the claim arose and ending on October 20, 1981.

• (2) For the purposes of subsection (1), a claim is deemed to have arisen when the owner of the property constituting the subject-matter of the claim was effectively deprived of the incidents of ownership and control thereof.

5 Where a claimant dies after October 20, 1981, an award in respect of his claim may be made to any lawful successor in interest thereto, irrespective of his nationality, if the deceased claimant

• (a) was eligible within the meaning of subsection 4(1); and

• (b) submitted a notice of claim on or before October 20, 1981.

Recommendation for Award and Report

• 6 (1) The Chief Commissioner shall submit a report to the Minister and the Minister of Finance on each claim considered by the Commission containing the recommendations of the Commission concerning

  • (a) the eligibility of the claimant to receive an award, and

  • (b) the amount of the award, if any, that should be paid to the claimant out of the Fund,

  having regard to all applicable laws, including the laws of Canada, the laws of the People’s Republic of China, international law and these Regulations.

• (2) The Chief Commissioner may submit a report to the Minister and the Minister of Finance on any claim on the basis of the information then available to the Commission where, in his opinion, postponement of his report in respect of the claim would result in undue delay.

• (3) A copy of the report referred to in subsection (1) shall, when approved by the Minister and the Minister of Finance, be sent to the claimant in respect of whom the report was made.

• 7 (1) The amount of an award that may be recommended by the Commission for a corporation that is a Canadian citizen is limited to that proportion of the award it would have otherwise recommended be paid to the corporation out of the Fund that is equivalent to

  • (a) the proportion of the total issued share capital of the corporation that was beneficially held by Canadian citizens on the date the claim arose, or

  • (b) the proportion of the total issued share capital of the corporation that was beneficially held by Canadian citizens on October 20, 1981,

  whichever is the lesser.

• (2) Where, in the opinion of the Commission, a claimant has been paid or is likely to be paid any compensation in respect of his claim from a source other than the Fund, the Commission shall deduct the amount of that compensation from the amount of the award it would have otherwise recommended be paid to the claimant out of the Fund.

• (3) Where a claimant by reason of his own neglect or default has failed to receive, or has forfeited his right to receive, any compensation in respect of his claim from a source other than the Fund, subsection (2) shall apply as if he had been paid that compensation.

• (4) The Commission shall not recommend in respect of any one person or any one claim an award in excess of $100,000.

8 The Chief Commissioner shall deliver to the Minister of Finance all bonds, shares and other documents on the basis of which the Commission has recommended an award.

9 No right to an award is conferred by any recommendation of the Commission contained in a report made by the Chief Commissioner to the Minister or the Minister of Finance.

Payment from the Fund

• 10 (1) On receipt of a report referred to in subsection 6(1), the Minister and the Minister of Finance shall determine

  • (a) the portion of any award recommended by the Commission that is to be paid out of the Fund in respect of a claim; and

  • (b) if the claimant is dead, the person, if any, to whom payment of the award is to be made.

• (2) In computing the amount to be paid out of the Fund in respect of a claim, the Minister and the Minister of Finance shall deduct the amount of any compensation that has been paid or is likely to be paid to the claimant from a source other than the Fund that the Commission has not already deducted pursuant to section 7 in recommending an award.

• 11 (1) Before making payment of an award or any part thereof, the Minister of Finance shall obtain a release in such form as he considers satisfactory in respect of the claim for which payment is to be made.

• (2) The Commission may recommend or the Minister of Finance may require that, as a condition to the granting of an award,

  • (a) a claimant assign to Her Majesty in right of Canada his entitlement to compensation in respect of his claim from a source other than the Fund; or

  • (b) if such entitlement cannot be validly assigned, the claimant give a written undertaking to do all things necessary to vest in Her Majesty the amount of such compensation and his rights therein.

12 Awards in respect of claims shall be paid out of that part of the Fund consisting of

• (a) money received from the Government of the People’s Republic of China under Articles I and III of the Agreement and credited to the Fund pursuant to paragraph (b) of the Vote;

• (b) money transferred to the Fund pursuant to section 13; and

• (c) any interest credited to the Fund in respect of the money referred to in paragraphs (a) and (b).

13 The Minister of Finance shall transfer to the Fund from the War Claims Fund established pursuant to Vote 696, Appropriation Act No. 4, 1952, the balance remaining of the portion of the money and of the proceeds and earnings of property credited to the War Claims Fund pursuant to paragraph (b) of Order in Council P.C. 1976-3098 of December 16, 1976, which related to property of residents of China that was vested in the Custodian of Enemy Property in respect of World War II.

14 Where the money in the part of the Fund described in section 12 is insufficient to pay in full all awards that the Minister and the Minister of Finance determine may be paid out of that part of the Fund,

• (a) a payment shall be made in respect of each award equal to the full amount thereof or $5,000, whichever is the lesser; and

• (b) the balance of any awards that are not paid in full shall be paid on a pro rata basis from any money remaining in that part of the Fund.

15 Awards may be made in one or more instalments at such times as may, in the opinion of the Minister of Finance, be warranted having regard to

• (a) the amounts available in the part of the Fund out of which awards may be paid; and

• (b) the possible amounts that may be awarded in respect of unpaid claims including those still before the Commission.

Deputy Chief Commissioner

16 In the event of the absence or incapacity of the Chief Commissioner or if the office of the Chief Commissioner becomes vacant, the Deputy Chief Commissioner may perform all the duties and functions of the Chief Commissioner under these Regulations.