• Marginal note:Non-application de certaines lois

  (3) Les lois suivantes ne s’appliquent pas à une société :

  • a) la Loi sur les corporations canadiennes, chapitre C-32 des Statuts revisés du Canada de 1970;

  • b) la Loi sur les liquidations et les restructurations;

  • c) les dispositions de toute loi spéciale au sens de l’article 87 de la Loi sur les transports au Canada qui sont incompatibles avec la présente loi.

Marginal note:Certificate of incorporation

• 8. (1) Subject to subsection (2), on receipt of articles of incorporation, the Director shall issue a certificate of incorporation in accordance with section 262.

• Marginal note:Exception — failure to comply with Act

  (2) The Director may refuse to issue the certificate if a notice that is required to be sent under subsection 19(2) or 106(1) indicates that the corporation, if it came into existence, would not be in compliance with this Act.

• Marginal note:Alternate name

  (3) Subject to subsection 12(1), the name of a corporation may be set out in its articles in an English form, a French form, an English form and a French form, or a combined English and French form, so long as the combined form meets the prescribed criteria. The corporation may use and may be legally designated by any such form.

Marginal note:Certificate of amendment

• 13. (1) When a corporation has had its name revoked and a name assigned to it under subsection 12(5), the Director shall issue a certificate of amendment showing the new name of the corporation and shall give notice of the change of name as soon as practicable in a publication generally available to the public.

Marginal note:Authority of directors, officers and agents

• 18. (1) No corporation and no guarantor of an obligation of a corporation may assert against a person dealing with the corporation or against a person who acquired rights from the corporation that

  • (a) the articles, by-laws and any unanimous shareholder agreement have not been complied with;

  • (b) the persons named in the most recent notice sent to the Director under section 106 or 113 are not the directors of the corporation;

  • (c) the place named in the most recent notice sent to the Director under section 19 is not the registered office of the corporation;

  • (d) a person held out by a corporation as a director, an officer or an agent of the corporation has not been duly appointed or has no authority to exercise the powers and perform the duties that are customary in the business of the corporation or usual for a director, officer or agent;

  • (e) a document issued by any director, officer or agent of a corporation with actual or usual authority to issue the document is not valid or not genuine; or

  • (f) a sale, lease or exchange of property referred to in subsection 189(3) was not authorized.

• Marginal note:Exception

  (2) Subsection (1) does not apply in respect of a person who has, or ought to have, knowledge of a situation described in that subsection by virtue of their relationship to the corporation.

Marginal note:Registered office

• 19. (1) A corporation shall at all times have a registered office in the province in Canada specified in its articles.

• Marginal note:Notice of registered office

  (2) A notice of registered office in the form that the Director fixes shall be sent to the Director together with any articles that designate or change the province where the registered office of the corporation is located.

• Marginal note:Change of address

  (3) The directors of a corporation may change the place and address of the registered office within the province specified in the articles.

• Marginal note:Notice of change of address

  (4) A corporation shall send to the Director, within fifteen days of any change of address of its registered office, a notice in the form that the Director fixes and the Director shall file it.

• Marginal note:Records in Canada

  (5) If accounting records of a corporation are kept outside Canada, accounting records adequate to enable the directors to ascertain the financial position of the corporation with reasonable accuracy on a quarterly basis shall be kept at the registered office or any other place in Canada designated by the directors.

• Marginal note:When records or registers kept outside Canada

  (5.1) Despite subsections (1) and (5), but subject to the Income Tax Act, the Excise Tax Act, the Customs Act and any other Act administered by the Minister of National Revenue, a corporation may keep all or any of its corporate records and accounting records referred to in subsection (1) or (2) at a place outside Canada, if

  • (a) the records are available for inspection, by means of a computer terminal or other technology, during regular office hours at the registered office or any other place in Canada designated by the directors; and

  • (b) the corporation provides the technical assistance to facilitate an inspection referred to in paragraph (a).

Marginal note:Corporate seal

• 23. (1) A corporation may, but need not, adopt a corporate seal, and may change a corporate seal that is adopted.

• Marginal note:Validity of unsealed documents

  (2) A document executed on behalf of a corporation is not invalid merely because a corporate seal is not affixed to it.

• Definition of “property”

  (5) For the purposes of this section, “property” does not include a promissory note, or a promise to pay, that is made by a person to whom a share is issued, or a person who does not deal at arm’s length, within the meaning of that expression in the Income Tax Act, with a person to whom a share is issued.

Marginal note:Options et droits

• 29. (1) La société peut émettre des titres, notamment des certificats, constatant des privilèges de conversion, ainsi que des options ou des droits d’acquérir des valeurs mobilières de celle-ci, aux conditions qu’elle énonce :

Marginal note:Voting shares

• 33. (1) A corporation holding shares in itself or in its holding body corporate shall not vote or permit those shares to be voted unless the corporation

  • (a) holds the shares in the capacity of a legal representative; and

  • (b) has complied with section 153.

• Marginal note:Subsidiary body corporate

  (2) A corporation shall not permit any of its subsidiary bodies corporate holding shares in the corporation to vote, or permit those shares to be voted, unless the subsidiary body corporate satisfies the requirements of subsection (1).

• Marginal note:Exception

  (2) La société ne peut faire aucun paiement en vue d’acheter ou d’acquérir autrement des actions qu’elle a émises s’il existe des motifs raisonnables de croire que :

• Marginal note:Acquisition et réémission de titres de créance

  (12) La société qui acquiert ses titres de créance peut soit les annuler, soit, sous réserve de tout acte de fiducie ou convention applicable, les réémettre ou les donner en garantie de l’exécution de ses obligations existantes ou futures; l’acquisition, la réémission ou le fait de donner en garantie ne constitue pas l’annulation de ces titres.

Marginal note:Enforcement of contract to buy shares

• 40. (1) A corporation shall fulfil its obligations under a contract to buy shares of the corporation, except if the corporation can prove that enforcement of the contract would put it in breach of any of sections 34 to 36.

• Marginal note:Status of contracting party

  (2) Until the corporation has fulfilled all its obligations under a contract referred to in subsection (1), the other party retains the status of claimant entitled to be paid as soon as the corporation is lawfully able to do so or, in a liquidation, to be ranked subordinate to the rights of creditors and to the rights of holders of any class of shares whose rights were in priority to the rights given to the holders of the class of shares being purchased, but in priority to the rights of other shareholders.

Marginal note:Shareholder immunity

• 45. (1) The shareholders of a corporation are not, as shareholders, liable for any liability, act or default of the corporation except under subsection 38(4), 118(4) or (5), 146(5) or 226(4) or (5).

• Marginal note:Lien on shares

  (2) Subject to subsection 49(8), the articles may provide that the corporation has a lien on a share registered in the name of a shareholder or the shareholder’s personal representative for a debt of that shareholder to the corporation, including an amount unpaid in respect of a share issued by a body corporate on the date it was continued under this Act.

“fiduciary”

« représentant »

“fiduciary” means any person acting in a fiduciary capacity and includes a personal representative of a deceased person;

• (d) if a person described in paragraph (a) is an individual and is without capacity to act by reason of death, incompetence, minority, or other incapacity, the person’s fiduciary;

Marginal note:Cas de non-responsabilité du mandataire ou dépositaire

75. Le mandataire ou le dépositaire de bonne foi — ayant respecté les normes commerciales raisonnables si, de par sa profession, il négocie les valeurs mobilières d’une société — qui a reçu, vendu, donné en gage ou livré ces valeurs mobilières conformément aux instructions de son mandant ne peut être tenu responsable de détournement ni de violation d’une obligation de représentant, même si le mandant n’avait pas le droit d’aliéner ces valeurs mobilières.

• Marginal note:Champ d’application

  (2) La présente partie s’applique aux actes de fiducie prévoyant une émission de titres de créances par voie d’un appel public à l’épargne.

Marginal note:Duty to manage or supervise management

• 102. (1) Subject to any unanimous shareholder agreement, the directors shall manage, or supervise the management of, the business and affairs of a corporation.

• Marginal note:Number of directors

  (2) A corporation shall have one or more directors but a distributing corporation, any of the issued securities of which remain outstanding and are held by more than one person, shall have not fewer than three directors, at least two of whom are not officers or employees of the corporation or its affiliates.

Marginal note:Règlements administratifs

• 103. (1) Sauf disposition contraire des statuts, des règlements administratifs ou de conventions unanimes des actionnaires, les administrateurs peuvent, par résolution, prendre, modifier ou révoquer tout règlement administratif portant sur les activités commerciales ou les affaires internes de la société.

• (g) a director may be removed from office only if the number of votes cast in favour of the director’s removal is greater than the product of the number of directors required by the articles and the number of votes cast against the motion; and

• (h) the number of directors required by the articles may be decreased only if the votes cast in favour of the motion to decrease the number of directors is greater than the product of the number of directors required by the articles and the number of votes cast against the motion.

• Marginal note:Resignation (or removal)

  (4) If all of the directors have resigned or have been removed without replacement, a person who manages or supervises the management of the business and affairs of the corporation is deemed to be a director for the purposes of this Act.

• Marginal note:Exception

  (5) Subsection (4) does not apply to

  • (a) an officer who manages the business or affairs of the corporation under the direction or control of a shareholder or other person;

  • (b) a lawyer, notary, accountant or other professional who participates in the management of the corporation solely for the purpose of providing professional services; or

  • (c) a trustee in bankruptcy, receiver, receiver-manager or secured creditor who participates in the management of the corporation or exercises control over its property solely for the purpose of the realization of security or the administration of a bankrupt’s estate, in the case of a trustee in bankruptcy.

Marginal note:Filling vacancy

• 111. (1) Despite subsection 114(3), but subject to subsections (3) and (4), a quorum of directors may fill a vacancy among the directors, except a vacancy resulting from an increase in the number or the minimum or maximum number of directors or a failure to elect the number or minimum number of directors provided for in the articles.

• Marginal note:Calling meeting

  (2) If there is not a quorum of directors or if there has been a failure to elect the number or minimum number of directors provided for in the articles, the directors then in office shall without delay call a special meeting of shareholders to fill the vacancy and, if they fail to call a meeting or if there are no directors then in office, the meeting may be called by any shareholder.

• Marginal note:Class director

  (3) If the holders of any class or series of shares of a corporation have an exclusive right to elect one or more directors and a vacancy occurs among those directors,

  • (a) subject to subsection (4), the remaining directors elected by the holders of that class or series of shares may fill the vacancy except a vacancy resulting from an increase in the number or the minimum or maximum number of directors for that class or series or from a failure to elect the number or minimum number of directors provided for in the articles for that class or series; or

  • (b) if there are no remaining directors any holder of shares of that class or series may call a meeting of the holders of shares of that class or series for the purpose of filling the vacancy.

Marginal note:Notice of change of director or director’s address

• 113. (1) A corporation shall, within fifteen days after

  • (a) a change is made among its directors, or

  • (b) it receives a notice of change of address of a director referred to in subsection (1.1),

  send to the Director a notice, in the form that the Director fixes, setting out the change, and the Director shall file the notice.

• Marginal note:Director’s change of address

  (1.1) A director shall, within fifteen days after changing his or her address, send the corporation a notice of that change.

• Marginal note:Evidence

  (3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.

Marginal note:Disclosure of interest

• 120. (1) A director or an officer of a corporation shall disclose to the corporation, in writing or by requesting to have it entered in the minutes of meetings of directors or of meetings of committees of directors, the nature and extent of any interest that he or she has in a material contract or material transaction, whether made or proposed, with the corporation, if the director or officer

  • (a) is a party to the contract or transaction;

  • (b) is a director or an officer, or an individual acting in a similar capacity, of a party to the contract or transaction; or

  • (c) has a material interest in a party to the contract or transaction.

• Marginal note:Time of disclosure for director

  (2) The disclosure required by subsection (1) shall be made, in the case of a director,

  • (a) at the meeting at which a proposed contract or transaction is first considered;

  • (b) if the director was not, at the time of the meeting referred to in paragraph (a), interested in a proposed contract or transaction, at the first meeting after he or she becomes so interested;

  • (c) if the director becomes interested after a contract or transaction is made, at the first meeting after he or she becomes so interested; or

  • (d) if an individual who is interested in a contract or transaction later becomes a director, at the first meeting after he or she becomes a director.

• Marginal note:Time of disclosure for officer

  (3) The disclosure required by subsection (1) shall be made, in the case of an officer who is not a director,

  • (a) immediately after he or she becomes aware that the contract, transaction, proposed contract or proposed transaction is to be considered or has been considered at a meeting;

  • (b) if the officer becomes interested after a contract or transaction is made, immediately after he or she becomes so interested; or

  • (c) if an individual who is interested in a contract later becomes an officer, immediately after he or she becomes an officer.

• Marginal note:Time of disclosure for director or officer

  (4) If a material contract or material transaction, whether entered into or proposed, is one that, in the ordinary course of the corporation’s business, would not require approval by the directors or shareholders, a director or officer shall disclose, in writing to the corporation or request to have it entered in the minutes of meetings of directors or of meetings of committees of directors, the nature and extent of his or her interest immediately after he or she becomes aware of the contract or transaction.

• Marginal note:Voting

  (5) A director required to make a disclosure under subsection (1) shall not vote on any resolution to approve the contract or transaction unless the contract or transaction unless the contract or transaction

  • (a) relates primarily to his or her remuneration as a director, officer, employee or agent of the corporation or an affiliate;

  • (b) is for indemnity or insurance under section 124; or

  • (c) is with an affiliate.

• Marginal note:Continuing disclosure

  (6) For the purposes of this section, a general notice to the directors declaring that a director or an officer is to be regarded as interested, for any of the following reasons, in a contract or transaction made with a party, is a sufficient declaration of interest in relation to the contract or transaction:

  • (a) the director or officer is a director or officer, or acting in a similar capacity, of a party referred to in paragraph (1)(b) or (c);

  • (b) the director or officer has a material interest in the party; or

  • (c) there has been a material change in the nature of the director’s or the officer’s interest in the party.

• Marginal note:Access to disclosures

  (6.1) The shareholders of the corporation may examine the portions of any minutes of meetings of directors or of committees of directors that contain disclosures under this section, and any other documents that contain those disclosures, during the usual business hours of the corporation.

• Marginal note:Avoidance standards

  (7) A contract or transaction for which disclosure is required under subsection (1) is not invalid, and the director or officer is not accountable to the corporation or its shareholders for any profit realized from the contract or transaction, because of the director’s or officer’s interest in the contract or transaction or because the director was present or was counted to determine whether a quorum existed at the meeting of directors or committee of directors that considered the contract or transaction, if

  • (a) disclosure of the interest was made in accordance with subsections (1) to (6);

  • (b) the directors approved the contract or transaction; and

  • (c) the contract or transaction was reasonable and fair to the corporation when it was approved.

• Marginal note:Confirmation by shareholders

  (7.1) Even if the conditions of subsection (7) are not met, a director or officer, acting honestly and in good faith, is not accountable to the corporation or to its shareholders for any profit realized from a contract or transaction for which disclosure is required under subsection (1), and the contract or transaction is not invalid by reason only of the interest of the director or officer in the contract or transaction, if

  • (a) the contract or transaction is approved or confirmed by special resolution at a meeting of the shareholders;

  • (b) disclosure of the interest was made to the shareholders in a manner sufficient to indicate its nature before the contract or transaction was approved or confirmed; and

  • (c) the contract or transaction was reasonable and fair to the corporation when it was approved or confirmed.

• Marginal note:Application to court

  (8) If a director or an officer of a corporation fails to comply with this section, a court may, on application of the corporation or any of its shareholders, set aside the contract or transaction on any terms that it thinks fit, or require the director or officer to account to the corporation for any profit or gain realized on it, or do both those things.

• a) pour les administrateurs, de créer des postes de dirigeants, d’y nommer des personnes pleinement capables, de préciser leurs fonctions et de leur déléguer le pouvoir de gérer les activités commerciales et les affaires internes de la société, sauf les exceptions prévues au paragraphe 115(3);

• Marginal note:Defence — reasonable diligence

  (4) A director is not liable under section 118 or 119, and has complied with his or her duties under subsection 122(2), if the director exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on

  • (a) financial statements of the corporation represented to the director by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or

  • (b) a report of a person whose profession lends credibility to a statement made by the professional person.

• Marginal note:Defence — good faith

  (5) A director has complied with his or her duties under subsection 122(1) if the director relied in good faith on

  • (a) financial statements of the corporation represented to the director by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or

  • (b) a report of a person whose profession lends credibility to a statement made by the professional person.

Marginal note:Indemnification

• 124. (1) A corporation may indemnify a director or officer of the corporation, a former director or officer of the corporation or another individual who acts or acted at the corporation’s request as a director or officer, or an individual acting in a similar capacity, of another entity, against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the individual in respect of any civil, criminal, administrative, investigative or other proceeding in which the individual is involved because of that association with the corporation or other entity.

• Marginal note:Advance of costs

  (2) A corporation may advance moneys to a director, officer or other individual for the costs, charges and expenses of a proceeding referred to in subsection (1). The individual shall repay the moneys if the individual does not fulfil the conditions of subsection (3).

• Marginal note:Limitation

  (3) A corporation may not indemnify an individual under subsection (1) unless the individual

  • (a) acted honestly and in good faith with a view to the best interests of the corporation, or, as the case may be, to the best interests of the other entity for which the individual acted as director or officer or in a similar capacity at the corporation’s request; and

  • (b) in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the individual had reasonable grounds for believing that the individual’s conduct was lawful.

• Marginal note:Indemnification in derivative actions

  (4) A corporation may with the approval of a court, indemnify an individual referred to in subsection (1), or advance moneys under subsection (2), in respect of an action by or on behalf of the corporation or other entity to procure a judgment in its favour, to which the individual is made a party because of the individual’s association with the corporation or other entity as described in subsection (1) against all costs, charges and expenses reasonably incurred by the individual in connection with such action, if the individual fulfils the conditions set out in subsection (3).

• Marginal note:Right to indemnity

  (5) Despite subsection (1), an individual referred to in that subsection is entitled to indemnity from the corporation in respect of all costs, charges and expenses reasonably incurred by the individual in connection with the defence of any civil, criminal, administrative, investigative or other proceeding to which the individual is subject because of the individual’s association with the corporation or other entity as described in subsection (1), if the individual seeking indemnity

  • (a) was not judged by the court or other competent authority to have committed any fault or omitted to do anything that the individual ought to have done; and

  • (b) fulfils the conditions set out in subsection (3).

• Marginal note:Insurance

  (6) A corporation may purchase and maintain insurance for the benefit of an individual referred to in subsection (1) against any liability incurred by the individual

  • (a) in the individual’s capacity as a director or officer of the corporation; or

  • (b) in the individual’s capacity as a director or officer, or similar capacity, of another entity, if the individual acts or acted in that capacity at the corporation’s request.

• Marginal note:Application to court

  (7) A corporation, an individual or an entity referred to in subsection (1) may apply to a court for an order approving an indemnity under this section and the court may so order and make any further order that it sees fit.

• Marginal note:Notice to Director

  (8) An applicant under subsection (7) shall give the Director notice of the application and the Director is entitled to appear and be heard in person or by counsel.

• Marginal note:Other notice

  (9) On an application under subsection (7) the court may order notice to be given to any interested person and the person is entitled to appear and be heard in person or by counsel.

Marginal note:Prohibition of short sale

• 130. (1) An insider shall not knowingly sell, directly or indirectly, a security of a distributing corporation or any of its affiliates if the insider selling the security does not own or has not fully paid for the security to be sold.

• Marginal note:Calls and puts

  (2) An insider shall not knowingly, directly or indirectly, sell a call or buy a put in respect of a security of the corporation or any of its affiliates.

• Marginal note:Exception

  (3) Despite subsection (1), an insider may sell a security they do not own if they own another security convertible into the security sold or an option or right to acquire the security sold and, within ten days after the sale, they

  • (a) exercise the conversion privilege, option or right and deliver the security so acquired to the purchaser; or

  • (b) transfer the convertible security, option or right to the purchaser.

• Marginal note:Offence

  (4) An insider who contravenes subsection (1) or (2) is guilty of an offence and liable on summary conviction to a fine not exceeding the greater of one million dollars and three times the profit made, or to imprisonment for a term not exceeding six months or to both.

Marginal note:Definitions

• 131. (1) In this section, “insider” means, with respect to a corporation,

  • (a) the corporation;

  • (b) an affiliate of the corporation;

  • (c) a director or an officer of the corporation or of any person described in paragraph (b), (d) or (f);

  • (d) a person who beneficially owns, directly or indirectly, shares of the corporation or who exercises control or direction over shares of the corporation, or who has a combination of any such ownership, control and direction, carrying more than the prescribed percentage of voting rights attached to all of the outstanding shares of the corporation not including shares held by the person as underwriter while those shares are in the course of a distribution to the public;

  • (e) a person, other than a person described in paragraph (f), employed or retained by the corporation or by a person described in paragraph (f);

  • (f) a person who engages in or proposes to engage in any business or professional activity with or on behalf of the corporation;

  • (g) a person who received, while they were a person described in any of paragraphs (a) to (f), material confidential information concerning the corporation;

  • (h) a person who receives material confidential information from a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph, and who knows or who ought reasonably to have known that the person giving the information is a person described in this subsection or in subsection (3) or (3.1), including a person described in this paragraph; and

  • (i) a prescribed person.

• Expanded definition of “security”

  (2) For the purposes of this section, the following are deemed to be a security of the corporation:

  • (a) a put, call, option or other right or obligation to purchase or sell a security of the corporation; and

  • (b) a security of another entity, the market price of which varies materially with the market price of the securities of the corporation.

• Marginal note:Deemed insiders

  (3) For the purposes of this section, a person who proposes to make a take-over bid (as defined in the regulations) for securities of a corporation, or to enter into a business combination with a corporation, is an insider of the corporation with respect to material confidential information obtained from the corporation and is an insider of the corporation for the purposes of subsection (6).

• Marginal note:Deemed insiders

  (3.1) An insider of a person referred to in subsection (3), and an affiliate or associate of such a person, is an insider of the corporation referred to in that subsection. Paragraphs (1)(b) to (i) apply in determining whether a person is such an insider except that references to “corporation” in those paragraphs are to be read as references to “person described in subsection (3)”.

• Marginal note:Insider trading — compensation to persons

  (4) An insider who purchases or sells a security of the corporation with knowledge of confidential information that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the corporation is liable to compensate the seller of the security or the purchaser of the security, as the case may be, for any damages suffered by the seller or purchaser as a result of the purchase or sale, unless the insider establishes that

  • (a) the insider reasonably believed that the information had been generally disclosed;

  • (b) the information was known, or ought reasonably to have been known, by the seller or purchaser; or

  • (c) the purchase or sale of the security took place in the prescribed circumstances.

• Marginal note:Insider trading — compensation to corporation

  (5) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a purchase or sale described in subsection (4) unless the insider establishes the circumstances described in paragraph (4)(a).

• Marginal note:Tipping — compensation to persons

  (6) An insider of the corporation who discloses to another person confidential information with respect to the corporation that has not been generally disclosed and that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the corporation is liable to compensate for damages any person who subsequently sells securities of the corporation to, or purchases securities of the corporation from, any person that received the information, unless the insider establishes

  • (a) that the insider reasonably believed that the information had been generally disclosed;

  • (b) that the information was known, or ought reasonably to have been known, by the person who alleges to have suffered the damages;

  • (c) that the disclosure of the information was necessary in the course of the business of the insider, except if the insider is a person described in subsection (3) or (3.1); or

  • (d) if the insider is a person described in subsection (3) or (3.1), that the disclosure of the information was necessary to effect the take-over bid or the business combination, as the case may be.

• Marginal note:Tipping — compensation to corporation

  (7) The insider is accountable to the corporation for any benefit or advantage received or receivable by the insider as a result of a disclosure of the information as described in subsection (6) unless the insider establishes the circumstances described in paragraph (6)(a), (c) or (d).

• Marginal note:Measure of damages

  (8) The court may assess damages under subsection (4) or (6) in accordance with any measure of damages that it considers relevant in the circumstances. However, in assessing damages in a situation involving a security of a distributing corporation, the court must consider the following:

  • (a) if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security over the twenty trading days immediately following general disclosure of the information; and

  • (b) if the plaintiff is a seller, the average market price of the security over the twenty trading days immediately following general disclosure of the information, less the price that the plaintiff received for the security.

• Marginal note:Liability

  (9) If more than one insider is liable under subsection (4) or (6) with respect to the same transaction or series of transactions, their liability is joint and several, or solidary.

• Marginal note:Limitation

  (10) An action to enforce a right created by subsections (4) to (7) may be commenced only within two years after discovery of the facts that gave rise to the cause of action.

• Marginal note:Meeting outside Canada

  (2) Despite subsection (1), a meeting of shareholders of a corporation may be held at a place outside Canada if the place is specified in the articles or all the shareholders entitled to vote at the meeting agree that the meeting is to be held at that place.

• Marginal note:Exception

  (3) A shareholder who attends a meeting of shareholders held outside Canada is deemed to have agreed to it being held outside Canada except when the shareholder attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully held.

• Marginal note:Participation in meeting by electronic means

  (4) Unless the by-laws otherwise provide, any person entitled to attend a meeting of shareholders may participate in the meeting, in accordance with the regulations, if any, by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the corporation makes available such a communication facility. A person participating in a meeting by such means is deemed for the purposes of this Act to be present at the meeting.

• Marginal note:Meeting held by electronic means

  (5) If the directors or the shareholders of a corporation call a meeting of shareholders pursuant to this Act, those directors or shareholders, as the case may be, may determine that the meeting shall be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the by-laws so provide.

Marginal note:Calling annual meetings

• 133. (1) The directors of a corporation shall call an annual meeting of shareholders

  • (a) not later than eighteen months after the corporation comes into existence; and

  • (b) subsequently, not later than fifteen months after holding the last preceding annual meeting but no later than six months after the end of the corporation’s preceding financial year.

• Marginal note:Calling special meetings

  (2) The directors of a corporation may at any time call a special meeting of shareholders.

• Marginal note:Order to delay calling of annual meeting

  (3) Despite subsection (1), the corporation may apply to the court for an order extending the time for calling an annual meeting.

Marginal note:Notice of meeting

• 135. (1) Notice of the time and place of a meeting of shareholders shall be sent within the prescribed period to

  • (a) each shareholder entitled to vote at the meeting;

  • (b) each director; and

  • (c) the auditor of the corporation.

• Marginal note:Exception — not a distributing corporation

  (1.1) In the case of a corporation that is not a distributing corporation, the notice may be sent within a shorter period if so specified in the articles or by-laws.

• Marginal note:Exception — shareholders not registered

  (2) A notice of a meeting is not required to be sent to shareholders who were not registered on the records of the corporation or its transfer agent on the record date determined under paragraph 134(1)(c) or subsection 134(2), but failure to receive a notice does not deprive a shareholder of the right to vote at the meeting.

Marginal note:List of shareholders entitled to receive notice

• 138. (1) A corporation shall prepare an alphabetical list of its shareholders entitled to receive notice of a meeting, showing the number of shares held by each shareholder,

  • (a) if a record date is fixed under paragraph 134(1)(c), not later than ten days after that date; or

  • (b) if no record date is fixed, on the record date established under paragraph 134(2)(a).

• Marginal note:Voting list — if record date fixed

  (2) If a record date for voting is fixed under paragraph 134(1)(d), the corporation shall prepare, no later than ten days after the record date, an alphabetical list of shareholders entitled to vote as of the record date at a meeting of shareholders that shows the number of shares held by each shareholder.

• Marginal note:Voting list — if no record date fixed

  (3) If a record date for voting is not fixed under paragraph 134(1)(d), the corporation shall prepare, no later than ten days after a record date is fixed under paragraph 134(1)(c) or no later than the record date established under paragraph 134(2)(a), as the case may be, an alphabetical list of shareholders who are entitled to vote as of the record date that shows the number of shares held by each shareholder.

• Marginal note:Entitlement to vote

  (3.1) A shareholder whose name appears on a list prepared under subsection (2) or (3) is entitled to vote the shares shown opposite their name at the meeting to which the list relates.

• Marginal note:Electronic voting

  (3) Despite subsection (1), unless the by-laws otherwise provide, any vote referred to in subsection (1) may be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility, if the corporation makes available such a communication facility.

• Marginal note:Voting while participating electronically

  (4) Unless the by-laws otherwise provide, any person participating in a meeting of shareholders under subsection 132(4) or (5) and entitled to vote at that meeting may vote, in accordance with the regulations, if any, by means of the telephonic, electronic or other communication facility that the corporation has made available for that purpose.

• Marginal note:Evidence

  (3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.

• (a) a record date has been fixed under paragraph 134(1)(c) and notice of it has been given under subsection 134(3);

Marginal note:Meeting called by court

• 144. (1) A court, on the application of a director, a shareholder who is entitled to vote at a meeting of shareholders or the Director, may order a meeting of a corporation to be called, held and conducted in the manner that the court directs, if

  • (a) it is impracticable to call the meeting within the time or in the manner in which those meetings are to be called;

  • (b) it is impracticable to conduct the meeting in the manner required by this Act or the by-laws; or

  • (c) the court thinks that the meeting should be called, held and conducted within the time or in the manner it directs for any other reason.

• c) ordonner une nouvelle élection ou une nouvelle nomination en donnant des directives pour la conduite, dans l’intervalle, des activités commerciales et des affaires internes de la société;

Marginal note:Pooling agreement

145.1 A written agreement between two or more shareholders may provide that in exercising voting rights the shares held by them shall be voted as provided in the agreement.

Marginal note:Unanimous shareholder agreement

• 146. (1) An otherwise lawful written agreement among all the shareholders of a corporation, or among all the shareholders and one or more persons who are not shareholders, that restricts, in whole or in part, the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation is valid.

• Marginal note:Declaration by single shareholder

  (2) If a person who is the beneficial owner of all the issued shares of a corporation makes a written declaration that restricts in whole or in part the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, the declaration is deemed to be a unanimous shareholder agreement.

• Marginal note:Constructive party

  (3) A purchaser or transferee of shares subject to a unanimous shareholder agreement is deemed to be a party to the agreement.

• Marginal note:When no notice given

  (4) If notice is not given to a purchaser or transferee of the existence of a unanimous shareholder agreement, in the manner referred to in subsection 49(8) or otherwise, the purchaser or transferee may, no later than 30 days after they become aware of the existence of the unanimous shareholder agreement, rescind the transaction by which they acquired the shares.

• Marginal note:Rights of shareholder

  (5) To the extent that a unanimous shareholder agreement restricts the powers of the directors to manage, or supervise the management of, the business and affairs of the corporation, parties to the unanimous shareholder agreement who are given that power to manage or supervise the management of the business and affairs of the corporation have all the rights, powers, duties and liabilities of a director of the corporation, whether they arise under this Act or otherwise, including any defences available to the directors, and the directors are relieved of their rights, powers, duties and liabilities, including their liabilities under section 119, to the same extent.

• Marginal note:Discretion of shareholders

  (6) Nothing in this section prevents shareholders from fettering their discretion when exercising the powers of directors under a unanimous shareholder agreement.

• Marginal note:Exception

  (2) The management of the corporation is not required to send a form of proxy under subsection (1) if it

  • (a) is not a distributing corporation; and

  • (b) has fifty or fewer shareholders entitled to vote at a meeting, two or more joint holders being counted as one shareholder.

• Marginal note:Exception — solicitation to fifteen or fewer shareholders

  (1.1) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissident’s proxy circular, if the total number of shareholders whose proxies are solicited is fifteen or fewer, two or more joint holders being counted as one shareholder.

• Marginal note:Exception — solicitation by public broadcast

  (1.2) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the corporation, without sending a dissident’s proxy circular if the solicitation is, in the prescribed circumstances, conveyed by public broadcast, speech or publication.

Marginal note:Exemption

• 151. (1) On the application of an interested person, the Director may exempt the person, on any terms that the Director thinks fit, from any of the requirements of section 149 or subsection 150(1), which exemption may have retrospective effect.

• Marginal note:Publication

  (2) The Director shall set out in a publication generally available to the public the particulars of exemptions granted under this section together with the reasons for the exemptions.

• Marginal note:Show of hands

  (3) Despite subsections (1) and (2), if the chairperson of a meeting of shareholders declares to the meeting that, if a ballot is conducted, the total number of votes attached to shares represented at the meeting by proxy required to be voted against what to the knowledge of the chairperson will be the decision of the meeting in relation to any matter or group of matters is less than five per cent of all the votes that might be cast by shareholders personally or through proxy at the meeting on the ballot, unless a shareholder or proxyholder demands a ballot,

Marginal note:Duty of intermediary

• 153. (1) Shares of a corporation that are registered in the name of an intermediary or their nominee and not beneficially owned by the intermediary must not be voted unless the intermediary, without delay after receipt of the notice of the meeting, financial statements, management proxy circular, dissident’s proxy circular and any other documents other than the form of proxy sent to shareholders by or on behalf of any person for use in connection with the meeting, sends a copy of the document to the beneficial owner and, except when the intermediary has received written voting instructions from the beneficial owner, a written request for such instructions.

• Marginal note:Restriction on voting

  (2) An intermediary, or a proxyholder appointed by an intermediary, may not vote shares that the intermediary does not beneficially own and that are registered in the name of the intermediary or in the name of a nominee of the intermediary unless the intermediary or proxyholder, as the case may be, receives written voting instructions from the beneficial owner.

• Marginal note:Copies

  (3) A person by or on behalf of whom a solicitation is made shall provide, at the request of an intermediary, without delay, to the intermediary at the person’s expense the necessary number of copies of the documents referred to in subsection (1), other than copies of the document requesting voting instructions.

• Marginal note:Instructions to intermediary

  (4) An intermediary shall vote or appoint a proxyholder to vote any shares referred to in subsection (1) in accordance with any written voting instructions received from the beneficial owner.

• Marginal note:Beneficial owner as proxyholder

  (5) If a beneficial owner so requests and provides an intermediary with appropriate documentation, the intermediary must appoint the beneficial owner or a nominee of the beneficial owner as proxyholder.

• Marginal note:Validity

  (6) The failure of an intermediary to comply with this section does not render void any meeting of shareholders or any action taken at the meeting.

• Marginal note:Limitation

  (7) Nothing in this section gives an intermediary the right to vote shares that the intermediary is otherwise prohibited from voting.

• Marginal note:Offence

  (8) An intermediary who knowingly fails to comply with this section is guilty of an offence and liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both.

• Marginal note:Officers, etc., of bodies corporate

  (9) If an intermediary that is a body corporate commits an offence under subsection (8), any director or officer of the body corporate who knowingly authorized, permitted or acquiesced in the commission of the offence is a party to and guilty of the offence and is liable on summary conviction to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months or to both, whether or not the body corporate has been prosecuted or convicted.

PRÉSENTATION DE RENSEIGNEMENTS D’ORDRE FINANCIER

Marginal note:Exemption

156. The Director may, on application of a corporation, authorize the corporation to omit from its financial statements any item prescribed, or to dispense with the publication of any particular financial statement prescribed, and the Director may, if the Director reasonably believes that disclosure of the information contained in the statements would be detrimental to the corporation, permit the omission on any reasonable conditions that the Director thinks fit.

• Marginal note:Examination

  (2) Shareholders of a corporation and their personal representatives may on request examine the statements referred to in subsection (1) during the usual business hours of the corporation and may make extracts free of charge.

Marginal note:Approval of financial statements

• 158. (1) The directors of a corporation shall approve the financial statements referred to in section 155 and the approval shall be evidenced by the manual signature of one or more directors or a facsimile of the signatures reproduced in the statements.

Marginal note:Copies to Director

• 160. (1) A distributing corporation, any of the issued securities of which remain outstanding and are held by more than one person, shall send a copy of the documents referred to in section 155 to the Director

  • (a) not less than twenty-one days before each annual meeting of shareholders, or without delay after a resolution referred to in paragraph 142(1)(b) is signed; and

  • (b) in any event within fifteen months after the last preceding annual meeting should have been held or a resolution in lieu of the meeting should have been signed, but no later than six months after the end of the corporation’s preceding financial year.

• Marginal note:Subsidiary corporation exemption

  (2) A subsidiary corporation is not required to comply with this section if

  • (a) the financial statements of its holding corporation are in consolidated or combined form and include the accounts of the subsidiary; and

  • (b) the consolidated or combined financial statements of the holding corporation are included in the documents sent to the Director by the holding corporation in compliance with this section.

• Marginal note:Offence

  (3) A corporation that fails to comply with this section is guilty of an offence and is liable on summary conviction to a fine not exceeding five thousand dollars.

Marginal note:Dispensing with auditor

• 163. (1) The shareholders of a corporation that is not a distributing corporation may resolve not to appoint an auditor.

• Marginal note:Other statements

  (5.1) In the case of a proposed replacement of an auditor, whether through removal or at the end of the auditor’s term, the following rules apply with respect to other statements:

  • (a) the corporation shall make a statement on the reasons for the proposed replacement; and

  • (b) the proposed replacement auditor may make a statement in which he or she comments on the reasons referred to in paragraph (a).

• Marginal note:Circulating statement

  (6) The corporation shall send a copy of the statements referred to in subsections (5) and (5.1) without delay to every shareholder entitled to receive notice of a meeting referred to in subsection (1) and to the Director, unless the statement is included in or attached to a management proxy circular required by section 150.

• Marginal note:No civil liability

  (3) A person who in good faith makes an oral or written communication under subsection (1) or (2) is not liable in any civil proceeding arising from having made the communication.

• Marginal note:Exemption

  (2) The Director may, on the application of a corporation, authorize the corporation to dispense with an audit committee, and the Director may, if satisfied that the shareholders will not be prejudiced, permit the corporation to dispense with an audit committee on any reasonable conditions that the Director thinks fit.

Marginal note:Delivery of articles

• 177. (1) Subject to any revocation under subsection 173(2) or 174(5), after an amendment has been adopted under section 173, 174 or 176 articles of amendment in the form that the Director fixes shall be sent to the Director.

• Marginal note:Right to vote

  (3) Each share of an amalgamating corporation carries the right to vote in respect of an amalgamation agreement whether or not it otherwise carries the right to vote.

• Marginal note:Class vote

  (4) The holders of shares of a class or series of shares of each amalgamating corporation are entitled to vote separately as a class or series in respect of an amalgamation agreement if the amalgamation agreement contains a provision that, if contained in a proposed amendment to the articles, would entitle such holders to vote as a class or series under section 176.

Marginal note:Sending of articles

• 185. (1) Subject to subsection 183(6), after an amalgamation has been adopted under section 183 or approved under section 184, articles of amalgamation in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 106.

• Marginal note:Notice deemed to be articles

  (4) For the purposes of section 262, a notice referred to in subsection (3) is deemed to be articles that are in the form that the Director fixes.

• Marginal note:Articles of reorganization

  (4) After an order referred to in subsection (1) has been made, articles of reorganization in the form that the Director fixes shall be sent to the Director together with the documents required by sections 19 and 113, if applicable.

GOING-PRIVATE TRANSACTIONS AND SQUEEZE-OUT TRANSACTIONS

Marginal note:Going-private transactions

193. A corporation may carry out a going-private transaction. However, if there are any applicable provincial securities laws, a corporation may not carry out a going-private transaction unless the corporation complies with those laws.

Marginal note:Squeeze-out transactions

194. A corporation may not carry out a squeeze-out transaction unless, in addition to any approval by holders of shares required by or under this Act or the articles of the corporation, the transaction is approved by ordinary resolution of the holders of each class of shares that are affected by the transaction, voting separately, whether or not the shares otherwise carry the right to vote. However, the following do not have the right to vote on the resolution:

• (a) affiliates of the corporation; and

• (b) holders of shares that would, following the squeeze-out transaction, be entitled to consideration of greater value or to superior rights or privileges than those available to other holders of shares of the same class.

PART XVIICOMPULSORY AND COMPELLED ACQUISITIONS

Marginal note:Obligation to acquire shares

• 206.1 (1) If a shareholder holding shares of a distributing corporation does not receive an offeror’s notice under subsection 206(3), the shareholder may

  • (a) within ninety days after the date of termination of the take-over bid, or

  • (b) if the shareholder did not receive an offer pursuant to the take-over bid, within ninety days after the later of

    • (i) the date of termination of the take-over bid, and

    • (ii) the date on which the shareholder learned of the take-over bid,

  require the offeror to acquire those shares.

• Marginal note:Conditions

  (2) If a shareholder requires the offeror to acquire shares under subsection (1), the offeror shall acquire the shares on the same terms under which the offeror acquired or will acquire the shares of the offerees who accepted the take-over bid.

• Marginal note:Articles of revival

  (2) Articles of revival in the form that the Director fixes shall be sent to the Director.

• Marginal note:Certificate of revival

  (3) On receipt of articles of revival, the Director shall issue a certificate of revival in accordance with section 262, if

  • (a) the body corporate has fulfilled all conditions precedent that the Director considers reasonable; and

  • (b) there is no valid reason for refusing to issue the certificate.

• Marginal note:Date of revival

  (3.1) A body corporate is revived as a corporation under this Act on the date shown on the certificate of revival.

• Marginal note:Rights preserved

  (4) Subject to any reasonable terms that may be imposed by the Director, to the rights acquired by any person after its dissolution and to any changes to the internal affairs of the corporation after its dissolution, the revived corporation is, in the same manner and to the same extent as if it had not been dissolved,

  • (a) restored to its previous position in law, including the restoration of any rights and privileges whether arising before its dissolution or after its dissolution and before its revival; and

  • (b) liable for the obligations that it would have had if it had not been dissolved whether they arise before its dissolution or after its dissolution and before its revival.

• Marginal note:Legal actions

  (5) Any legal action respecting the affairs of a revived corporation taken between the time of its dissolution and its revival is valid and effective.

• Definition of “interested person”

  (6) In this section, “interested person” includes

  • (a) a shareholder, a director, an officer, an employee and a creditor of the dissolved corporation;

  • (b) a person who has a contractual relationship with the dissolved corporation;

  • (c) a person who, although at the time of dissolution of the corporation was not a person described in paragraph (a), would be such a person if a certificate of revival is issued under this section; and

  • (d) a trustee in bankruptcy for the dissolved corporation.

• Marginal note:Certificate

  (4) On receipt of an order under this section, section 212 or 214, the Director shall

  • (a) if the order is to dissolve the corporation, issue a certificate of dissolution in the form that the Director fixes; or

  • (b) if the order is to liquidate and dissolve the corporation under the supervision of the court, issue a certificate of intent to dissolve in the form that the Director fixes and publish notice of the order in a publication generally available to the public.

• (b) an order appointing a liquidator, with or without security, fixing the liquidator’s remuneration and replacing a liquidator;

• (b) without delay publish notice by insertion once a week for two consecutive weeks in a newspaper published or distributed in the place where the corporation has its registered office and take reasonable steps to give notice of the appointment in each province where the corporation carries on business, requiring any person

• Marginal note:Due diligence

  (2) A liquidator is not liable if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on

  • (a) financial statements of the corporation represented to the liquidator by an officer of the corporation or in a written report of the auditor of the corporation fairly to reflect the financial condition of the corporation; or

  • (b) a report of a person whose profession lends credibility to a statement made by the professional person.

• Marginal note:Publication

  (4) A liquidator shall give notice of their intention to make an application under subsection (2) to the Director, to each inspector appointed under section 217, to each shareholder and to any person who provided a security or fidelity bond for the liquidation, and shall publish the notice in a newspaper published or distributed in the place where the corporation has its registered office, or as otherwise directed by the court.

Definition of “shareholder”

• 226. (1) In this section, “shareholder” includes the heirs and personal representatives of a shareholder.

PART XIX.1APPORTIONING AWARD OF DAMAGES

Interpretation and Application

Marginal note:Definitions

237.1 The definitions in this section apply in this Part.

“financial interest”

« intérêt financier »

“financial interest”, with respect to a corporation, includes

• (a) a security;

• (b) a title to or an interest in capital, assets, property, profits, earnings or royalties;

• (c) an option or other interest in, or a subscription to, a security;

• (d) an agreement under which the interest of the purchaser is valued for purposes of conversion or surrender by reference to the value of a proportionate interest in a specified portfolio of assets;

• (e) an agreement providing that money received will be repaid or treated as a subscription for shares, units or interests at the option of any person or the corporation;

• (f) a profit-sharing agreement or certificate;

• (g) a lease, claim or royalty in oil, natural gas or mining, or an interest in the lease, claim or royalty;

• (h) an income or annuity contract that is not issued by an insurance company governed by an Act of Parliament or a law of a province;

• (i) an investment contract; and

• (j) anything that is prescribed to be a financial interest.

“financial loss”

« perte financière »

“financial loss” means a financial loss arising out of an error, omission or misstatement in financial information concerning a corporation that is required under this Act or the regulations.

“third party”

Marginal note:Version anglaise seulement

“third party” includes any subsequent party that is joined in proceedings before a court.

Marginal note:Application of Part

• 237.2 (1) This Part applies to the apportionment of damages awarded to a plaintiff for financial loss after a court has found more than one defendant or third party responsible for the financial loss.

• Marginal note:Non-application of Part

  (2) This Part does not apply to an award of damages to any of the following plaintiffs:

  • (a) Her Majesty in right of Canada or of a province;

  • (b) an agent of Her Majesty in right of Canada or of a province or a federal or provincial Crown corporation or government agency, unless a substantial part of its activities involves trading, including making investments in, securities or other financial instruments;

  • (c) a charitable organization, private foundation or public foundation within the meaning of subsection 149.1(1) of the Income Tax Act; or

  • (d) an unsecured creditor in respect of goods or services that the creditor provided to a corporation.

Apportionment of Damages

Marginal note:Degree of responsibility

• 237.3 (1) Subject to this section and sections 237.4 to 237.6, every defendant or third party who has been found responsible for a financial loss is liable to the plaintiff only for the portion of the damages that corresponds to their degree of responsibility for the loss.

• Marginal note:Uncollectable amounts

  (2) If any part of the damages awarded against a responsible defendant or third party is uncollectable, the court may, on the application of the plaintiff, reallocate that amount to the other responsible defendants or third parties, if the application is made within one year after the date that the judgment was made enforceable.

• Marginal note:Reallocation

  (3) The amount that may be reallocated to each of the other responsible defendants or third parties under subsection (2) is calculated by multiplying the uncollectable amount by the percentage that corresponds to the degree of responsibility of that defendant or third party for the total financial loss.

• Marginal note:Maximum amount

  (4) The maximum amount determined under subsection (3), in respect of any responsible defendant or third party, may not be more than fifty per cent of the amount originally awarded against that responsible defendant or third party.

Marginal note:Exception — fraud

• 237.4 (1) The plaintiff may recover the whole amount of the damages awarded by the court from any defendant or third party who has been held responsible for a financial loss if it was established that the defendant or third party acted fraudulently or dishonestly.

• Marginal note:Contribution

  (2) The defendant or third party referred to in subsection (1) is entitled to claim contribution from any other defendant or third party who is held responsible for the loss.

Joint and Several, or Solidary, Liability

Marginal note:Individual or personal body corporate

• 237.5 (1) Defendants and third parties referred to in subsection 237.2(1) are jointly and severally, or solidarily, liable for the damages awarded to a plaintiff who is an individual or a personal body corporate and who

  • (a) had a financial interest in a corporation on the day that an error, omission or misstatement in financial information concerning the corporation occurred, or acquired a financial interest in the period between the day that the error, omission or misstatement occurred and the day, as determined by the court, that it was generally disclosed; and

  • (b) has established that the value of the plaintiff’s total financial interest in the corporation was not more than the prescribed amount at the close of business on the day that the error, omission or misstatement occurred or at the close of business on any day that the plaintiff acquired a financial interest in the period referred to in paragraph (a).

• Definition of “personal body corporate”

  (2) In subsection (1), “personal body corporate” means a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual or a group of individuals, each member of which is connected by blood relationship, adoption or marriage or by cohabiting with another member in a conjugal relationship.

• Marginal note:Exception

  (3) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate.

Marginal note:Equitable grounds

• 237.6 (1) If the value of the plaintiff’s total financial interest referred to in subsection 237.5(1) is greater than the prescribed amount, a court may nevertheless determine that the defendants and third parties are jointly and severally, or solidarily, liable if the court considers that it is just and reasonable to do so.

• Marginal note:Factors

  (2) The Governor in Council may establish factors that the court shall take into account in deciding whether to hold the defendants and third parties jointly and severally, or solidarily, liable.

• Marginal note:Statutory Instruments Act

  (3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.

Marginal note:Value of security

• 237.7 (1) When, in order to establish the value of the total financial interest referred to in subsection 237.5(1), it is necessary to determine the value of a security that is traded on an organized market, the value of the security is, on the day specified in subsection (3),

  • (a) the closing price of that class of security;

  • (b) if no closing price is given, the average of the highest and lowest prices of that class of security; or

  • (c) if the security was not traded, the average of the bid and ask prices of that class of security.

• Marginal note:Court may adjust value

  (2) The court may adjust the value of a security that has been determined under subsection (1) when the court considers it reasonable to do so.

• Marginal note:Valuation day

  (3) The value of the security is to be determined as of the day that the error, omission or misstatement occurred. If the security was acquired in the period between that day and the day, as determined by the court, that the error, omission or misstatement was generally disclosed, the value is to be determined as of the day that it was acquired.

• Definition of “organized market”

  (4) In this section, “organized market” means a recognized exchange for a class of securities or a market that regularly publishes the price of that class of securities in a publication that is generally available to the public.

Marginal note:Court determines value

• 237.8 (1) The court shall determine the value of all or any part of a financial interest that is subject to resale restrictions or for which there is no organized market.

• Marginal note:Factors

  (2) The Governor in Council may establish factors that the court may take into account in determining value under subsection (1).

• Marginal note:Statutory Instruments Act

  (3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.

Marginal note:Application to determine value

237.9 The plaintiff may, by application made at any time before or during the course of the proceedings, request the court to determine the value of the plaintiff’s financial interest for the purpose of subsection 237.5(1).

• (a) the complainant has given notice to the directors of the corporation or its subsidiary of the complainant’s intention to apply to the court under subsection (1) not less than fourteen days before bringing the application, or as otherwise ordered by the court, if the directors of the corporation or its subsidiary do not bring, diligently prosecute or defend or discontinue the action;

• Marginal note:Absence de cautionnement

  (3) Les plaignants ne sont pas tenus de fournir de cautionnement pour les frais des demandes, actions ou interventions visées à la présente partie.

Marginal note:Appeal from Director’s decision

246. A person who feels aggrieved by a decision of the Director referred to in any of paragraphs (a) to (g) may apply to a court for an order, including an order requiring the Director to change the decision

• (a) to refuse to file in the form submitted any articles or other document required by this Act to be filed;

• (b) to give a name, to change or revoke a name, or to refuse to reserve, accept, change or revoke a name under section 12;

• (c) to grant, or to refuse to grant, an exemption that may be granted under this Act and the regulations;

• (d) to refuse under subsection 187(11) to permit a continued reference to shares having a nominal or par value;

• (e) to refuse to issue a certificate of discontinuance under section 188 or a certificate attesting that as of a certain date the corporation exists under subsection 263.1(2);

• (f) to issue, or to refuse to issue, a certificate of revival under section 209, or the decision with respect to the terms for revival imposed by the Director;

• (f.1) to correct, or to refuse to correct, articles, a notice, a certificate or other document under section 265;

• (f.2) to cancel, or to refuse to cancel, the articles and related certificate under section 265.1; or

• (g) to dissolve a corporation under section 212.

Marginal note:Appeal of final order

• 249. (1) An appeal lies to the court of appeal of a province from any final order made by a court of that province under this Act.

• Marginal note:Appeal with leave

  (2) An appeal lies to the court of appeal of a province from any order other than a final order made by a court of that province, only with leave of the court of appeal in accordance with the rules applicable to that court.

PART XX.1DOCUMENTS IN ELECTRONIC OR OTHER FORM

Marginal note:Definitions

252.1 The definitions in this section apply in this Part.

“electronic document”

« document électronique »

“electronic document” means, except in section 252.6, any form of representation of information or of concepts fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means.

“information system”

« système d’information »

“information system” means a system used to generate, send, receive, store, or otherwise process an electronic document.

Marginal note:Application

252.2 This Part does not apply to a notice, document or other information sent to or issued by the Director pursuant to this Act or to any prescribed notice, document or other information.

Marginal note:Use not mandatory

• 252.3 (1) Nothing in this Act or the regulations requires a person to create or provide an electronic document.

• Marginal note:Consent and other requirements

  (2) Despite anything in this Part, a requirement under this Act or the regulations to provide a person with a notice, document or other information is not satisfied by the provision of an electronic document unless

  • (a) the addressee has consented, in the manner prescribed, and has designated an information system for the receipt of the electronic document; and

  • (b) the electronic document is provided to the designated information system, unless otherwise prescribed.

• Marginal note:Revocation of consent

  (3) An addressee may revoke the consent referred to in paragraph (2)(a) in the manner prescribed.

Marginal note:Creation and provision of information

252.4 A requirement under this Act or the regulations that a notice, document or other information be created or provided, is satisfied by the creation or provision of an electronic document if

• (a) the by-laws or the articles of the corporation do not provide otherwise; and

• (b) the regulations, if any, have been complied with.

Marginal note:Creation of information in writing

• 252.5 (1) A requirement under this Act or the regulations that a notice, document or other information be created in writing is satisfied by the creation of an electronic document if, in addition to the conditions in section 252.4,

  • (a) the information in the electronic document is accessible so as to be usable for subsequent reference; and

  • (b) the regulations pertaining to this subsection, if any, have been complied with.

• Marginal note:Provision of information in writing

  (2) A requirement under this Act or the regulations that a notice, document or other information be provided in writing is satisfied by the provision of an electronic document if, in addition to the conditions set out in section 252.4,

  • (a) the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference; and

  • (b) the regulations pertaining to this subsection, if any, have been complied with.

• Marginal note:Copies

  (3) A requirement under this Act or the regulations for one or more copies of a document to be provided to a single addressee at the same time is satisfied by the provision of a single version of the electronic document.

• Marginal note:Registered mail

  (4) A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by the sending of an electronic document unless prescribed.

Marginal note:Statutory declarations and affidavits

• 252.6 (1) A statutory declaration or an affidavit required under this Act or the regulations may be created or provided in an electronic document if

  • (a) the person who makes the statutory declaration or affidavit signs it with his or her secure electronic signature;

  • (b) the authorized person before whom the statutory declaration or affidavit is made signs it with his or her secure electronic signature; and

  • (c) the requirements of sections 252.3 to 252.5 are complied with.

• Marginal note:Definitions

  (2) For the purposes of this section, “electronic document” and “secure electronic signature” have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.

• Marginal note:Clarification

  (3) For the purpose of complying with paragraph (1)(c), the references to an “electronic document” in sections 252.3 to 252.5 are to be read as references to an “electronic document” as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.

Marginal note:Signatures

252.7 A requirement under this Act or the regulations for a signature or for a document to be executed, except with respect to a statutory declaration or an affidavit, is satisfied if, in relation to an electronic document, the prescribed requirements pertaining to this section, if any, are met and if the signature results from the application by a person of a technology or a process that permits the following to be proven:

• (a) the signature resulting from the use by a person of the technology or process is unique to the person;

• (b) the technology or process is used by a person to incorporate, attach or associate the person’s signature to the electronic document; and

• (c) the technology or process can be used to identify the person using the technology or process.

• Marginal note:Undelivered notices

  (4) If a corporation sends a notice or document to a shareholder in accordance with subsection (1) and the notice or document is returned on two consecutive occasions because the shareholder cannot be found, the corporation is not required to send any further notices or documents to the shareholder until the shareholder informs the corporation in writing of the shareholder’s new address.

• Marginal note:Certificat de valeurs mobilières

  (3) Les mentions du registre des valeurs mobilières et les certificats de valeurs mobilières émis par la société établissent, à défaut de preuve contraire, que les personnes au nom desquelles les valeurs mobilières sont inscrites sont propriétaires des valeurs mentionnées dans le registre ou sur les certificats.

Marginal note:Content and form of notices and documents

258.1 The Director may establish the requirements for the content and fix the form, including electronic or other forms, of notices and documents sent to or issued by the Director pursuant to this Act, including

• (a) the notices and documents that may be transmitted in electronic or other form;

• (b) the persons or classes of persons who may transmit the notices and documents;

• (c) their signature in electronic or other form, or their execution, adoption or authorization in a manner that is to have the same effect for the purposes of this Act as their signature;

• (d) the time and circumstances when electronic notices and documents are to be considered to be sent or received, and the place where they are considered to have been sent or received; and

• (e) any matter necessary for the purposes of the application of this section.

Marginal note:Exemption

258.2 In the prescribed circumstances, the Director may, on any conditions that the Director considers appropriate, exempt from the application of any provision of this Act requiring notices or documents to be sent to the Director any notices or documents or classes of notices or documents containing information similar to that contained in notices or documents required to be made public pursuant to any other Act of Parliament or to any Act of the legislature of a province as the Director specifies.

Marginal note:Regulations

• 261. (1) The Governor in Council may make regulations

  • (a) prescribing any matter required or authorized by this Act to be prescribed;

  • (a.1) defining anything that, by this Act, is to be defined by regulation;

  • (b) requiring the payment of a fee in respect of the filing, examination or copying of any document, or in respect of any action that the Director is required or authorized to take under this Act, and prescribing the amount of the fee or the manner of determining the fee;

  • (c) respecting the payment of fees, including the time when and the manner in which the fees are to be paid, the additional fees that may be charged for the late payment of fees and the circumstances in which any fees previously paid may be refunded in whole or in part;

  • (c.1) prescribing, for the purposes of subsection 137(1.1), a manner of determining the number of shares required for a person to be eligible to submit a proposal, including the time and manner of determining a value or percentage of the outstanding shares of the corporation;

  • (d) prescribing, for the purposes of paragraph 137(5)(d), the minimum amount of support required in relation to the number of times the shareholder has submitted substantially the same proposal within the prescribed period;

  • (e) prescribing rules with respect to exemptions permitted by this Act;

  • (f) prescribing that, for the purpose of paragraph 155(1)(a), the standards as they exist from time to time, of an accounting body named in the regulations shall be followed;

  • (g) prescribing any matter necessary for the purposes of the application of Part XX.1, including the time and circumstances when an electronic document is to be considered to have been provided or received and the place where it is considered to have been provided or received;

  • (h) prescribing the manner of, and conditions for, participating in a meeting by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting; and

  • (i) prescribing, for the purposes of subsection 141(3), the manner of, and conditions for, voting at a meeting of shareholders by means of a telephonic, electronic or other communication facility.

• Marginal note:Incorporation by reference

  (2) The regulations may incorporate any material by reference regardless of its source and either as it exists on a particular date or as amended from time to time.

• Marginal note:Incorporated material is not a regulation

  (3) Material does not become a regulation for the purposes of the Statutory Instruments Act because it is incorporated by reference.

Marginal note:Fee to be paid before service performed

261.1 The fee in respect of the filing, examination, or copying of any document, or in respect of any action that the Director is required or authorized to take, shall be paid to the Director on the filing, examination, or copying or before the Director takes the action in respect of which the fee is payable.

• Marginal note:Authority to sign notices

  (2) The notices referred to in subsections 19(2) and (4) and subsections 106(1) and 113(1), and the annual return referred to in section 263, may be signed by any individual who has the relevant knowledge of the corporation and who is authorized to do so by the directors, or, in the case of the notice referred to in subsection 106(1), the incorporators.

• Marginal note:Execution of documents

  (3) Any articles, notice, resolution, requisition, statement or other document required or permitted to be executed or signed by more than one individual for the purposes of this Act may be executed or signed in several documents of like form, each of which is executed or signed by one or more of the individuals. The documents, when duly executed or signed by all individuals required or permitted, as the case may be, to do so, shall be deemed to constitute one document for the purposes of this Act.

Marginal note:Annual return

263. Every corporation shall, on the prescribed date, send to the Director an annual return in the form that the Director fixes and the Director shall file it.

Marginal note:Certificate

• 263.1 (1) The Director may provide any person with a certificate stating that a corporation

  • (a) has sent to the Director a document required to be sent under this Act;

  • (b) has paid all required fees; or

  • (c) exists as of a certain date.

• Marginal note:Director may refuse to issue certificate of existence

  (2) For greater certainty, the Director may refuse to issue a certificate described in paragraph (1)(c) if the Director has knowledge that the corporation is in default of sending a document required to be sent under this Act or is in default of paying a required fee.

Marginal note:Corrections at request of Director

• 265. (1) If there is an error in articles, a notice, a certificate or other document, the directors or shareholders of the corporation shall, on the request of the Director, pass the resolutions and send to the Director the documents required to comply with this Act, and take such other steps as the Director may reasonably require so that the Director may correct the document.

• Marginal note:No prejudice

  (2) Before proceeding under subsection (1), the Director must be satisfied that the correction would not prejudice any of the shareholders or creditors of the corporation.

• Marginal note:Corrections at the request of the corporation

  (3) The Director may, at the request of the corporation or of any other interested person, accept a correction to any of the documents referred to in subsection (1) if

  • (a) the correction is approved by the directors of the corporation, unless the error is obvious or was made by the Director; and

  • (b) the Director is satisfied that the correction would not prejudice any of the shareholders or creditors of the corporation and that the correction reflects the original intention of the corporation or the incorporators, as the case may be.

• Marginal note:Application to court

  (4) If, in the view of the Director, of the corporation or of any interested person who wishes a correction, a correction to any of the documents referred to in subsection (1) would prejudice any of the shareholders or creditors of a corporation, the Director, the corporation or the person, as the case may be, may apply to the court for an order that the document be corrected and for an order determining the rights of the shareholders or creditors.

• Marginal note:Notice to Director

  (5) An applicant under subsection (4) shall give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.

• Marginal note:Director may require surrender of document

  (6) The Director may demand the surrender of the original document, and may issue a corrected certificate or file the corrected articles, notice or other document.

• Marginal note:Date of corrected document

  (7) A corrected document shall bear the date of the document it replaces unless

  • (a) the correction is made with respect to the date of the document, in which case the document shall bear the corrected date; or

  • (b) the court decides otherwise.

• Marginal note:Notice

  (8) If a corrected certificate materially amends the terms of the original certificate, the Director shall without delay give notice of the correction in a publication generally available to the public.

Marginal note:Cancellation of articles by Director

• 265.1 (1) In the prescribed circumstances, the Director may cancel the articles and related certificate of a corporation.

• Marginal note:No prejudice

  (2) Before proceeding under subsection (1), the Director must be satisfied that the cancellation would not prejudice any of the shareholders or creditors of the corporation.

• Marginal note:Request to Director to cancel articles

  (3) In the prescribed circumstances, the Director may, at the request of a corporation or of any other interested person, cancel the articles and related certificate of the corporation if

  • (a) the cancellation is approved by the directors of the corporation; and

  • (b) the Director is satisfied that the cancellation would not prejudice any of the shareholders or creditors of the corporation and that the cancellation reflects the original intention of the corporation or the incorporators, as the case may be.

• Marginal note:Application to court

  (4) If, in the view of the Director, of the corporation or of any interested person who wishes a cancellation, a cancellation of articles and a related certificate would prejudice any of the shareholders or creditors of a corporation, the Director, the corporation or the person, as the case may be, may apply to the court for an order that the articles and certificate be cancelled and for an order determining the rights of the shareholders or creditors.

• Marginal note:Notice to Director

  (5) An applicant under subsection (4) shall give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.

• Marginal note:Return of certificate

  (6) The Director may demand the surrender of a cancelled certificate.

Marginal note:Inspection

• 266. (1) A person who has paid the required fee is entitled during usual business hours to examine a document required by this Act or the regulations to be sent to the Director, except a report sent to the Director under subsection 230(2), and to make copies of or extracts from it.

• Marginal note:Copies

  (2) The Director shall furnish any person with a copy, extract, certified copy or certified extract of a document required by this Act or the regulations to be sent to the Director, except a report sent under subsection 230(2).

• Marginal note:Retention of records

  (3) The Director is not required to produce any document, other than a certificate and attached articles or statement filed under section 262, after the expiration of the prescribed period.

Marginal note:Form of publication

267.1 Information or notices required by this Act to be summarized in a publication generally available to the public or published by the Director may be made available to the public or published by any system of mechanical or electronic data processing or by any other information storage device that is capable of reproducing any required information or notice in intelligible form within a reasonable time.

• Marginal note:Exemptions — on application by cooperative

  (4) On the application of a cooperative, the Director may determine that the cooperative is not or was not a distributing cooperative if the Director is satisfied that the determination would not be prejudicial to the public interest.

• Marginal note:Exemptions — classes of cooperatives

  (5) The Director may determine that a class of cooperatives are not or were not distributing cooperatives if the Director is satisfied that the determination would not be prejudicial to the public interest.

Marginal note:Incorporators

• 8. (1) An application for incorporation of a cooperative may be made by a minimum of three persons, or by one or more cooperative entities, who intend to be members of the cooperative.

• (d) a notice that is required to be given under subsection 30(2) or 81(1) indicates that the cooperative, if it came into existence, would be in compliance with the Act.

• (b) contained undertakings by every member and the successors, assigns and personal representatives of every member to observe all the provisions of the articles and by-laws.

• (a) make an order respecting the nature and extent of the obligations and liability under the contract of the cooperative and the person who entered into or purported to enter into the contract by or on behalf of the cooperative; and

• Marginal note:Alternate form

  (4) The name of a cooperative may be set out in its articles in an English form, a French form, an English form and a French form, or a combined English and French form, so long as the combined form meets the prescribed criteria. The cooperative may use and be legally designated by any such form.

• Marginal note:When records or registers kept outside Canada

  (3) Despite subsection (1), but subject to the Income Tax Act, the Excise Tax Act, the Customs Act and any other Act administered by the Minister of National Revenue, a cooperative may keep all or any of its records mentioned in paragraphs (1)(a), (b), (c), (f) and (g) and (2)(a) and (b) at a place outside Canada, if

  • (a) the records are available for inspection, by means of a computer terminal or other technology, during regular office hours at the registered office or another office in Canada designated by the directors; and

  • (b) the cooperative provides the technical assistance to facilitate an inspection referred to in paragraph (a).

• Marginal note:Inspection and copying of records by members, creditors and shareholders

  (4) Members, creditors and shareholders of the cooperative, their personal representatives and the Director may examine the records referred to in paragraphs 31(1)(a), (b), (c) (f) and (g) during the usual business hours of the cooperative and may take extracts from the records, free of charge, or have copies of them made after payment of a reasonable fee.

Marginal note:Lists

• 33. (1) Members, shareholders and creditors of a cooperative and their personal representatives and, where the cooperative is a distributing cooperative, any other person, may request that the cooperative provide them with a list of members or shareholders, no later than ten days after the cooperative receives the affidavit referred to in subsection (2) and after payment of a reasonable fee.

• Marginal note:Participation in meeting by electronic means

  (3) Unless the by-laws provide otherwise, a member or shareholder may participate in a meeting of the cooperative, in accordance with the regulations, if any, by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the cooperative makes available such a communication facility.

• Marginal note:Meeting held by electronic means

  (3.1) If the directors of a cooperative, or any other person, call a meeting of the cooperative pursuant to this Act, those directors or that person, as the case may be, may determine that the meeting shall be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting, if the by-laws so provide.

• Marginal note:Order to delay calling of annual meeting

  (3) Despite subsection (1), the cooperative may apply to the court for an order extending the time for calling an annual meeting.

Marginal note:Notice of meetings

• 52. (1) Notice of the time and place of a meeting of a cooperative must be sent within the prescribed period

  • (a) to each person who is entitled to vote at the meeting;

  • (b) to each director; and

  • (c) to the auditor of the cooperative, if any.

• Marginal note:Exception

  (1.1) In the case of a cooperative that is not a distributing cooperative, the notice may be sent within a shorter period if so specified in the articles or the by-laws.

Marginal note:Refusal to include proposal

• 60. (1) If a cooperative refuses to include a proposal in a notice of a meeting referred to in section 52, the cooperative must, within the prescribed period after the day on which it receives the proposal or the day on which it receives the proof of ownership under subsection 58(2.4), as the case may be, notify in writing the person submitting the proposal of its intention to omit the proposal from the notice and of the reasons for the refusal.

• Marginal note:Restraining order by court

  (2) On the application of a person submitting a proposal who claims to be aggrieved by a cooperative’s refusal under subsection (1), a court may restrain the holding of the meeting at which the proposal is sought to be presented and make any further order it thinks fit.

• Marginal note:Electronic voting

  (3) Despite subsection (1), unless the by-laws provide otherwise, any vote referred to in subsection (1) may be held, in accordance with the regulations, if any, entirely by means of a telephonic, electronic or other communication facility, if the cooperative makes available such a communication facility.

• Marginal note:Voting while participating electronically

  (4) Unless the by-laws otherwise provide, a member or shareholder participating in a meeting of the cooperative under subsection 48(3) or (3.1) and entitled to vote at that meeting may vote, in accordance with the regulations, if any, by means of the telephonic, electronic or other communication facility that the cooperative has made available for that purpose.

Marginal note:Evidence

67. Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.

• (a) it is not feasible to call the meeting within the time or in the manner in which those meetings are to be called;

• (b) it is not feasible to conduct the meeting in the manner required by this Act or the by-laws; or

• Marginal note:Resident in Canada

  (4) At least twenty-five per cent of the directors must be resident in Canada. However, if the cooperative has only three directors, at least one director must be resident in Canada.

• Marginal note:Election or appointment as director

  (6) An individual who is elected or appointed to hold office as a director is not a director and is deemed not to have been elected or appointed to hold office as a director unless

  • (a) he or she was present at the meeting when the election or appointment took place and he or she did not refuse to hold office as a director; or

  • (b) he or she was not present at the meeting when the election or appointment took place and

    • (i) he or she consented to hold office as a director in writing before the election or appointment or within ten days after it, or

    • (ii) he or she has acted as a director pursuant to the election or appointment.

Marginal note:Notice of change of director or directors address

• 91. (1) A cooperative must, within fifteen days after

  • (a) a change is made among its directors, or

  • (b) it receives a notice of change of address of a director referred to in subsection (2),

  send to the Director a notice, in the form that the Director fixes, setting out the change.

• Marginal note:Directors change of address

  (2) A director must, within fifteen days after changing his or her address, send the cooperative a notice of that change.

• Marginal note:Application to court

  (3) Any interested person, or the Director, may apply to a court for an order to require a cooperative to comply with subsection (1), and the court may so order and make any further order it thinks fit.

Marginal note:Participation

• 98. (1) Subject to the by-laws, a director may, in accordance with the regulations, if any, participate in a meeting of directors or of a committee of directors by means of a telephonic, electronic or other communication facility that permits all participants to communicate adequately with each other during the meeting.

• Marginal note:Evidence

  (3) Unless a ballot is demanded, an entry in the minutes of a meeting to the effect that the chairperson of the meeting declared a resolution to be carried or defeated is, in the absence of evidence to the contrary, proof of the fact without proof of the number or proportion of the votes recorded in favour of or against the resolution.

Marginal note:Voting

• 104. (1) A director who is interested in a contract or transaction referred to in subsection 103(1) may not vote on any resolution to approve the contract or transaction.

Marginal note:Effect of disclosure

106. A contract or transaction for which disclosure is required under section 103 is not invalid, and the director or officer is not accountable to the cooperative, its members or its shareholders for any profit realized from the contract or transaction, because of the director’s or officer’s interest in the contract or transaction or because the director was present or was counted to determine whether a quorum existed at the meeting of directors or committee of directors that considered the contract or transaction, if

• (a) disclosure of the interest was made in accordance with sections 103 to 105;

• (b) the directors approved the contract or transaction; and

• (c) the contract or transaction was reasonable and fair to the cooperative when it was approved.

Marginal note:Confirmation

106.1 Even if the conditions of section 106 are not met, a director or officer, acting honestly and in good faith, is not accountable to the cooperative, its members or its shareholders for any profit realized from a contract or transaction for which disclosure is required under section 103 and the contract or transaction is not invalid by reason only of the interest of the director or officer in the contract or transaction if

• (a) the contract or transaction is approved or confirmed by special resolution at a meeting of the members;

• (b) disclosure of the interest was made to the members in a manner sufficient to indicate its nature before the contract or transaction was approved or confirmed; and

• (c) the contract or transaction was reasonable and fair to the cooperative when it was approved or confirmed.

Marginal note:Court order

107. If a director or officer of a cooperative fails to disclose an interest in a material contract or transaction in accordance with section 103, or otherwise fails to comply with sections 103 to 106.1, a court may, on the application of the cooperative or a member or shareholder, set aside the contract or transaction on any terms that it thinks fit or order that the director or officer account to the cooperative, its members or its shareholders for any profit realized from the contract or transaction.

Marginal note:Due diligence

111. A director is not liable under this Part if the director exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on

• (a) financial statements of the cooperative represented to the director by an officer of the cooperative or in a written report of the auditor of the cooperative fairly to reflect the financial condition of the cooperative; or

• (b) a report of a person whose profession lends credibility to a statement made by the professional person.

Marginal note:Charge on membership shares for amounts

• 123. (1) A cooperative has a charge on a membership share or any amount standing to the credit of a member or the personal representative of a member for a debt of that member to the cooperative.

Marginal note:Shares in series

• 126. (1) The articles may authorize, subject to any limitations set out in them and subject to subsection (2), the issue of any class of investment shares in one or more series and may do either or both of the following:

Marginal note:Charge on investment shares

• 129. (1) Subject to subsection 183(2), the articles may provide that the cooperative has a charge on an investment share registered in the name of a shareholder or the personal representative of a shareholder for a debt of the shareholder to the cooperative, including an amount unpaid as of the date a body corporate was continued under this Act, in respect of an investment share issued by it.

• Marginal note:Continued cooperative

  (4) For the purposes of subsection 147(2), sections 151 and 154 and paragraph 299(2)(d), when a cooperative is continued under this Act, its stated capital account is deemed to include the amount that would have been included if the cooperative had been incorporated under this Act.

• Marginal note:Exception

  (2) La coopérative ne peut faire aucun paiement en vue d’acquérir des parts de placement s’il existe des motifs raisonnables de croire que :

“intermediary”

« intermédiaire »

“intermediary” means a person who holds a security on behalf of another person who is not the registered holder of the security, and includes

• (a) a securities broker or dealer required to be registered to trade or deal in securities under the laws of any jurisdiction;

• (b) a securities depositary;

• (c) a financial institution;

• (d) in respect of a clearing agency, a securities dealer, trust company, bank or other person, including another clearing agency, on whose behalf the clearing agency or its nominees hold securities of an issuer;

• (e) a trustee or administrator of a self-administered retirement savings plan, retirement income fund, education savings plan or other similar self-administered savings or investment plan registered under the Income Tax Act;

• (f) a nominee of a person referred to in any of paragraphs (a) to (e); and

• (g) a person who carries out functions similar to those carried out by individuals or entities referred to in any of paragraphs (a) to (e) and that holds a security registered in its name, or in the name of its nominee, on behalf of another person who is not the registered holder of the security.

“solicit” or “solicitation”

« sollicitation »

“solicit” or “solicitation”

• (a) includes

  • (i) a request for a proxy whether or not accompanied by or included in a form of proxy,

  • (ii) a request to execute or not to execute a form of proxy or to revoke a proxy,

  • (iii) the sending of a form of proxy or other communication to a shareholder under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy, and

  • (iv) the sending of a form of proxy to a shareholder under section 165; but

• (b) does not include

  • (i) the sending of a form of proxy in response to an unsolicited request made by or on behalf of a shareholder,

  • (ii) the performance of administrative acts or professional services on behalf of a person soliciting a proxy,

  • (iii) the sending by an intermediary of the documents referred to in section 169,

  • (iv) a solicitation by a person in respect of investment shares of which they are the beneficial owner,

  • (v) a public announcement, as prescribed, by a shareholder of how the shareholder intends to vote and the reasons for that decision,

  • (vi) a communication for the purposes of obtaining the number of investment shares required for a proposal under subsection 58(2.1), or

  • (vii) a communication, other than a solicitation by or on behalf of the management of the cooperative, that is made to shareholders, in any circumstances that may be prescribed.

• (b) it has fifty or fewer shareholders entitled to vote at a meeting, two or more joint holders being counted as one shareholder.

• Marginal note:Solicitation to fifteen or fewer shareholders

  (4) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the cooperative, without sending a dissident’s proxy circular, if the total number of shareholders whose proxies are solicited is fifteen or fewer, two or more joint holders being counted as one shareholder.

• Marginal note:Solicitation by public broadcast

  (4.1) Despite subsection (1), a person may solicit proxies, other than by or on behalf of the management of the cooperative, without sending a dissident’s proxy circular, if the solicitation is, in the prescribed circumstances, conveyed by public broadcast, speech or publication.

Marginal note:Exemption order

• 167. (1) On the application of any interested person, the Director may exempt, on any terms that the Director thinks fit, the person from any of the requirements of section 165 or subsection 166(1), which exemption may have retrospective effect.

Marginal note:Prohibition of short sale

• 172. (1) No insider shall knowingly sell, directly or indirectly, a security of a distributing cooperative or any of its affiliates if the insider selling the security does not own or has not fully paid for the security to be sold.

• Marginal note:Calls and puts

  (2) No insider shall knowingly, directly or indirectly, buy a put or sell a call in respect of a security of the cooperative or any of its affiliates.

• Marginal note:Exception

  (3) Despite subsection (1), an insider may sell a security that the insider does not own if the insider owns another security convertible into the security sold or an option or right to acquire the security sold and, no later than ten days after the sale, the insider

  • (a) exercises the conversion privilege, option or right and delivers the security so acquired to the purchaser; or

  • (b) transfers the convertible security, option or right to the purchaser.

Definition of “insider”

• 173. (1) In this section, “insider”, with respect to a cooperative, means

  • (a) the cooperative;

  • (b) an affiliate of the cooperative;

  • (c) a director or an officer of the cooperative or of any persons described in paragraphs (b), (e) or (g);

  • (d) a member who controls more than ten per cent of the voting rights that may be exercised to elect or appoint a director of the cooperative;

  • (e) a person who beneficially owns, directly or indirectly, shares of the cooperative or who exercises control or direction over shares of the cooperative, or a combination of any such ownership, control and direction, carrying more than the prescribed percentage of the voting rights attached to all of the outstanding shares of the cooperative other than shares held by the person as underwriter while those shares are in the course of a distribution to the public;

  • (f) a person, other than a person described in paragraph (g), employed or retained by the cooperative or by a person described in paragraph (g);

  • (g) a person who engages in or proposes to engage in any business or professional activity with or on behalf of the cooperative;

  • (h) a person who received, while they were a person described in any of paragraphs (a) to (g) material confidential information concerning the cooperative;

  • (i) a person who receives material confidential information from a person described in this subsection or in subsection (2) or (2.1), including from a person described in this paragraph, and who knows or who ought reasonably to have known that the person giving the information is a person described in this subsection or in subsection (2) or (2.1), including a person described in this paragraph; and

  • (j) a prescribed person.

• Marginal note:Deemed insiders

  (2) For the purposes of this section, a person who proposes to make a take-over bid (as defined in the regulations) for securities of a cooperative, or to enter into a business combination with a cooperative, is an insider of the cooperative with respect to material confidential information obtained from the cooperative and is an insider of the cooperative for the purposes of subsection (6).

• Marginal note:Deemed insiders

  (2.1) An insider of a person referred to in subsection (2), and an affiliate or associate of such a person, is an insider of the cooperative referred to in that subsection. Paragraphs (1)(b) to (j) apply in determining whether a person is such an insider except that references to “cooperative” in those paragraphs are to be read as references to “person described in subsection (2)”.

• Expanded definition of “security”

  (3) For the purposes of this section, the following are deemed to be a security of the cooperative:

  • (a) a put, call or option or other right or obligation to purchase or sell a security of the cooperative; and

  • (b) a security of another entity whose market price varies materially with the market price of the securities of the cooperative.

• Marginal note:Insider trading — compensation to persons

  (4) An insider who purchases or sells a security of the cooperative with knowledge of confidential information that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the cooperative is liable to compensate the seller of the security or the purchaser of the security, as the case may be, for any damages suffered by the seller or purchaser as a result of the purchase or sale, unless the insider establishes that

  • (a) the insider reasonably believed that the information had been generally disclosed;

  • (b) the information was known, or ought reasonably to have been known, by the seller or purchaser; or

  • (c) the purchase or sale of the security took place in the prescribed circumstances.

• Marginal note:Insider trading — compensation to cooperative

  (5) The insider is accountable to the cooperative for any benefit or advantage received or receivable by the insider as a result of a purchase or sale described in subsection (4) unless the insider establishes the circumstances in paragraph 4(a).

• Marginal note:Tipping — compensation to persons

  (6) An insider who discloses to another person confidential information with respect to the cooperative that has not been generally disclosed and that, if generally known, might reasonably be expected to affect materially the value of any of the securities of the cooperative is liable to compensate for damages any person who subsequently sells securities of the cooperative to, or purchases securities of the cooperative from, any person that received the information, unless the insider establishes

  • (a) that the insider reasonably believed that the information had been generally disclosed;

  • (b) that the information was known, or ought reasonably to have been known, to the person who alleges to have suffered the damages;

  • (c) that the disclosure of the information was necessary in the course of the business of the insider, except if the insider is a person described in subsection (2) or (2.1); or

  • (d) if the insider is a person described in subsection (2) or (2.1), that the disclosure of the information was necessary to effect the take-over bid or the business combination, as the case may be.

• Marginal note:Tipping — compensation to cooperative

  (7) The insider is accountable to the cooperative for any benefit or advantage received or receivable by the insider as a result of a disclosure of the information as described in subsection (6) unless the insider establishes the circumstances in paragraph (6)(a), (c) or (d).

• Marginal note:Measure of damages

  (8) The court may assess damages under subsection (4) or (6) in accordance with any measure of damages that it considers relevant in the circumstances. However, in assessing damages in a situation involving a security of a distributing cooperative, the court must consider the following:

  • (a) if the plaintiff is a purchaser, the price paid by the plaintiff for the security less the average market price of the security over the twenty trading days immediately following general disclosure of the information; and

  • (b) if the plaintiff is a seller, the average market price of the security over the twenty trading days immediately following general disclosure of the information, less the price that the plaintiff received for the security.

• Marginal note:Liability

  (9) If more than one insider is liable under subsection (4) or (6) with respect to the same transaction or series of transactions, their liability is joint and several, or solidary.

• Marginal note:Limitation

  (10) An action to enforce a right created by subsections (4) to (7) may be commenced only within two years after discovery of the facts that gave rise to the cause of action.

“offeree cooperative”

« coopérative pollicitée »

“offeree cooperative” means a distributing cooperative whose shares are the object of a take-over bid.

“take-over bid”

« offre d’achat »

“take-over bid” means an offer made by an offeror to shareholders of a distributing cooperative at approximately the same time to acquire all of the shares of a class of issued shares and includes an offer made by a distributing cooperative to repurchase all of the shares of a class of its shares.

Marginal note:Distributing cooperative

• 176. (1) If a shareholder holding shares of a distributing cooperative does not receive a notice under this Part, the shareholder may

  • (a) within ninety days after the date of the end of the take-over bid, or

  • (b) if the shareholder did not receive an offer pursuant to the take-over bid, within ninety days after the later of

    • (i) the date of the end of the take-over bid, and

    • (ii) the date on which the shareholder learned of the take-over bid,

  require the offeror to acquire those shares.

Marginal note:Signatures

• 182. (1) A security certificate must be signed by at least one of the following persons, or a facsimile of the signature must be reproduced on the certificate:

  • (a) a director, or an individual on their behalf, or an officer;

  • (b) a transfer agent or branch transfer agent of the cooperative, or an individual on their behalf; or

  • (c) a trustee who certifies it in accordance with a trust indenture.

PRÉSENTATION DE RENSEIGNEMENTS D’ORDRE FINANCIER

• Marginal note:Examination

  (2) The members and shareholders of a cooperative and their personal representatives may on request examine the statements referred to in subsection (1) during the usual business hours of the cooperative and may take extracts from them free of charge.

Marginal note:Copies to Director

• 252. (1) A distributing cooperative, any of the issued securities of which remain outstanding and are held by more than one person, must send a copy of the documents referred to in section 247 to the Director

  • (a) not less than twenty-one days before each annual meeting of members or, without delay after a resolution referred to in paragraph 251(c) is signed; and

  • (b) in any event within fifteen months after the last preceding annual meeting of shareholders was held or the resolution referred to in paragraph 251(c) was signed, but no later than six months after the end of the cooperative’s preceding financial year.

Marginal note:Dispensing with auditor

• 255. (1) A cooperative that is not a distributing cooperative may resolve not to appoint an auditor by

• Marginal note:Autres déclarations

  (5) Lorsque la coopérative se propose de remplacer le vérificateur, pour cause de révocation ou d’expiration de son mandat, elle doit soumettre une déclaration motivée et le nouveau vérificateur a le droit de soumettre une déclaration commentant ces motifs.

Marginal note:Application

• 267. (1) La présente partie s’applique à tout acte de fiducie prévoyant une émission de titres de créance par voie d’appel public à l’épargne.

• (j) reduce or increase its stated capital, if its stated capital is set out in the articles;

Marginal note:Proposal to amend

• 290. (1) Subject to subsection (2), a person referred to in subsection 58(2) or (2.1) may make a proposal to amend the articles and section 58 applies, with any modifications that the circumstances require, to any meeting of the cooperative at which the proposal is to be considered.

Marginal note:Restated articles

• 294. (1) The directors may at any time, and must when reasonably so directed by the Director, restate the articles of incorporation.

• (a) failed for two or more consecutive years to comply with the requirements of this Act with respect to the holding of annual meetings;

• b) il constate qu’elle abuse des droits des membres, détenteurs de parts de placement, détenteurs de valeurs mobilières, créanciers, administrateurs ou dirigeants, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts :

• Marginal note:Due diligence

  (2) A liquidator is not liable under this Part if the liquidator exercised the care, diligence and skill that a reasonably prudent person would have exercised in comparable circumstances, including reliance in good faith on

  • (a) financial statements of the cooperative represented to the liquidator by an officer of the cooperative or in a written report of the auditor of the cooperative fairly to reflect the financial condition of the cooperative; or

  • (b) a report of a person whose profession lends credibility to a statement made by the professional person.

Marginal note:Heirs and representatives

• 326. (1) In this section, “member” and “shareholder” include their heirs and personal representatives.

• d) que la coopérative ou toute autre personne morale de son groupe, soit par la façon dont elle conduit ou a conduit ses affaires tant commerciales qu’internes, soit par la façon dont ses administrateurs exercent ou ont exercé leurs pouvoirs, abuse des droits des membres ou des détenteurs de valeurs mobilières ou se montre injuste à leur égard soit en leur portant préjudice soit en ne tenant pas compte de leurs intérêts;

PART 18.1APPORTIONING AWARD OF DAMAGES

Interpretation and Application

Marginal note:Definitions

337.1 The definitions in this section apply in this Part.

“financial interest”

« intérêt financier »

“financial interest”, with respect to a cooperative, includes

• (a) a security;

• (b) a title to or an interest in capital, assets, property, profits, earnings or royalties;

• (c) an option or other interest in, or a subscription to, a security;

• (d) an agreement under which the interest of the purchaser is valued for purposes of conversion or surrender by reference to the value of a proportionate interest in a specified portfolio of assets;

• (e) an agreement providing that money received will be repaid or treated as a subscription for shares, units or interests at the option of any person or the cooperative;

• (f) a profit-sharing agreement or certificate;

• (g) a lease, claim or royalty in oil, natural gas or mining, or an interest in the lease, claim or royalty;

• (h) an income or annuity contract that is not issued by an insurance company governed by an Act of Parliament or a law of a province;

• (i) an investment contract; and

• (j) anything that is prescribed to be a financial interest.

“financial loss”

« perte financière »

“financial loss” means a financial loss arising out of an error, omission or misstatement in financial information concerning a cooperative that is required under this Act or the regulations.

“third party”

Marginal note:Version anglaise seulement

“third party” includes any subsequent party that is joined in proceedings before a court.

Marginal note:Application of Part

• 337.2 (1) This Part applies to the apportionment of damages awarded to a plaintiff for financial loss after a court has found more than one defendant or third party responsible for the financial loss.

• Marginal note:Non-application of Part

  (2) This Part does not apply to an award of damages to any of the following plaintiffs:

  • (a) Her Majesty in right of Canada or of a province;

  • (b) an agent of Her Majesty in right of Canada or of a province or a federal or provincial Crown corporation or government agency, unless a substantial part of its activities involves trading, including making investments in, securities or other financial instruments;

  • (c) a charitable organization, private foundation or public foundation within the meaning of subsection 149.1(1) of the Income Tax Act; or

  • (d) an unsecured creditor in respect of goods or services that the creditor provided to a cooperative.

Apportionment of Damages

Marginal note:Degree of responsibility

• 337.3 (1) Subject to this section and sections 337.4 to 337.6, every defendant or third party who has been found responsible for a financial loss is liable to the plaintiff only for the portion of the damages that corresponds to their degree of responsibility for the loss.

• Marginal note:Uncollectable amounts

  (2) If any part of the damages awarded against a responsible defendant or third party is uncollectable, the court may, on the application of the plaintiff, reallocate that amount to the other responsible defendants or third parties, if the application is made within one year after the date that the judgment was made enforceable.

• Marginal note:Reallocation

  (3) The amount that may be reallocated to each of the other responsible defendants or third parties under subsection (2) is calculated by multiplying the uncollectable amount by the percentage that corresponds to the degree of responsibility of that defendant or third party for the total financial loss.

• Marginal note:Maximum amount

  (4) The maximum amount determined under subsection (3), in respect of any responsible defendant or third party, may not be more than fifty per cent of the amount originally awarded against that responsible defendant or third party.

Marginal note:Exception — fraud

• 337.4 (1) The plaintiff may recover the whole amount of the damages awarded by the court from any defendant or third party who has been held responsible for a financial loss if it was established that the defendant or third party acted fraudulently or dishonestly.

• Marginal note:Contribution

  (2) The defendant or third party referred to in subsection (1) is entitled to claim contribution from any other defendant or third party who is held responsible for the loss.

Joint and Several, or Solidary, Liability

Marginal note:Individual or personal body corporate

• 337.5 (1) Defendants and third parties referred to in subsection 337.2(1) are jointly and severally, or solidarily, liable for the damages awarded to a plaintiff who is an individual or a personal body corporate and who

  • (a) had a financial interest in a cooperative on the day that an error, omission or misstatement in financial information concerning the cooperative occurred, or acquired a financial interest in the period between the day that the error, omission or misstatement occurred and the day, as determined by the court, that it was generally disclosed; and

  • (b) has established that the value of the plaintiff’s total financial interest in the cooperative was not more than the prescribed amount at the close of business on the day that the error, omission or misstatement occurred or at the close of business on any day that the plaintiff acquired a financial interest in the period referred to in paragraph (a).

• Definition of “personal body corporate”

  (2) In subsection (1), “personal body corporate” means a body corporate that is not actively engaged in any financial, commercial or industrial business and that is controlled by an individual or a group of individuals, each member of which is connected by blood relationship, adoption or marriage or by cohabiting with another member in a conjugal relationship.

• Marginal note:Exception

  (3) Subsection (1) does not apply when the plaintiff brings the action as a member of a partnership or other association or as a trustee in bankruptcy, liquidator or receiver of a body corporate.

Marginal note:Equitable grounds

• 337.6 (1) If the value of the plaintiff’s total financial interest referred to in subsection 337.5(1) is greater than the prescribed amount, a court may nevertheless determine that the defendants and third parties are jointly and severally, or solidarily, liable if the court considers that it is just and reasonable to do so.

• Marginal note:Factors

  (2) The Governor in Council may establish factors that the court shall take into account in deciding whether to hold the defendants and third parties jointly and severally, or solidarily, liable.

• Marginal note:Statutory Instruments Act

  (3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.

Marginal note:Value of security

• 337.7 (1) When, in order to establish the value of the total financial interest referred to in subsection 337.5(1), it is necessary to determine the value of a security that is traded on an organized market, the value of the security is, on the day specified in subsection (3),

  • (a) the closing price of that class of security;

  • (b) if no closing price is given, the average of the highest and lowest prices of that class of security; or

  • (c) if the security was not traded, the average of the bid and ask prices of that class of security.

• Marginal note:Court may adjust value

  (2) The court may adjust the value of a security that has been determined under subsection (1) when the court considers it reasonable to do so.

• Marginal note:Valuation day

  (3) The value of the security is to be determined as of the day that the error, omission or misstatement occurred. If the security was acquired in the period between that day and the day, as determined by the court, that the error, omission or misstatement was generally disclosed, the value is to be determined as of the day that it was acquired.

• Definition of “organized market”

  (4) In this section, “organized market” means a recognized exchange for a class of securities or a market that regularly publishes the price of that class of securities in a publication that is generally available to the public.

Marginal note:Court determines value

• 337.8 (1) The court shall determine the value of all or any part of a financial interest that is subject to resale restrictions or for which there is no organized market.

• Marginal note:Factors

  (2) The Governor in Council may establish factors that the court may take into account in determining value under subsection (1).

• Marginal note:Statutory Instruments Act

  (3) The Statutory Instruments Act does not apply to the factors referred to in subsection (2), but the factors shall be published in Part I of the Canada Gazette.

Marginal note:Application to determine value

337.9 The plaintiff may, by application made at any time before or during the course of the proceedings, request the court to determine the value of the plaintiff’s financial interest for the purpose of subsection 337.5(1).

• (a) if the directors of the cooperative or its subsidiary do not bring, diligently prosecute, defend or discontinue the action, the complainant has given notice to the directors of the cooperative or its subsidiary of the complainant’s intention to apply to the court under subsection (1) not less than fourteen days before bringing the application, or as otherwise ordered by the court;

• Marginal note:Motifs

  (2) Le tribunal, saisi d’une demande visée au paragraphe (1), peut, par ordonnance, redresser la situation provoquée par la coopérative qui, à son avis, abuse des droits des membres ou autres détenteurs de valeurs mobilières, créanciers, administrateurs ou dirigeants de la coopérative, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts :

• (c) to grant, or to refuse to grant, an exemption that may be granted under this Act and the regulations;

• (d) to refuse to issue a certificate of discontinuance or a certificate attesting that as of a certain date the cooperative exists under section 375;

• (d.1) to correct, or to refuse to correct, articles, a notice, a certificate or other document under section 376.1;

• (d.2) to cancel, or to refuse to cancel, the articles and related certificate under section 376.2;

PART 21.1DOCUMENTS IN ELECTRONIC OR OTHER FORM

Marginal note:Definitions

361.1 The definitions in this section apply in this Part.

“electronic document”

« document électronique »

“electronic document” means, except in section 361.6, any form of representation of information or of concepts fixed in any medium in or by electronic, optical or other similar means and that can be read or perceived by a person or by any means.

“information system”

« système d’information »

“information system” means a system used to generate, send, receive, store or otherwise process an electronic document.

Marginal note:Application

361.2 This Part does not apply to a notice, document or other information sent to or issued by the Director pursuant to this Act or to any prescribed notice, document or other information.

Marginal note:Use not mandatory

• 361.3 (1) Nothing in this Act or the regulations requires a person to create or provide an electronic document.

• Marginal note:Consent and other requirements

  (2) Despite anything in this Part, a requirement under this Act or the regulations to provide a person with a notice, document or other information is not satisfied by the provision of an electronic document unless

  • (a) the addressee has consented, in the manner prescribed, and has designated an information system for the receipt of the electronic document; and

  • (b) the electronic document is provided to the designated information system, unless otherwise prescribed.

• Marginal note:Revocation of consent

  (3) An addressee may revoke the consent referred to in paragraph (2)(a) in the manner prescribed.

Marginal note:Creation and provision of information

361.4 A requirement under this Act or the regulations that a notice, document or other information be created or provided is satisfied by the creation or provision of an electronic document if

• (a) the by-laws or the articles of the cooperative do not provide otherwise; and

• (b) the regulations, if any, have been complied with.

Marginal note:Creation of information in writing

• 361.5 (1) A requirement under this Act or the regulations that a notice, document or other information be created in writing is satisfied by the creation of an electronic document if, in addition to the conditions in section 361.4,

  • (a) the information in the electronic document is accessible so as to be usable for subsequent reference; and

  • (b) the regulations pertaining to this subsection, if any, have been complied with.

• Marginal note:Provision of information in writing

  (2) A requirement under this Act or the regulations that a notice, document or other information be provided in writing is satisfied by the provision of an electronic document if, in addition to the conditions set out in section 361.4,

  • (a) the information in the electronic document is accessible by the addressee and capable of being retained by the addressee, so as to be usable for subsequent reference; and

  • (b) the regulations pertaining to this subsection, if any, have been complied with.

• Marginal note:Copies

  (3) A requirement under this Act or the regulations for one or more copies of a document to be provided to a single addressee at the same time is satisfied by the provision of a single version of the electronic document.

• Marginal note:Registered mail

  (4) A requirement under this Act or the regulations to provide a document by registered mail is not satisfied by the sending of an electronic document unless prescribed.

Marginal note:Statutory declarations and affidavits

• 361.6 (1) A statutory declaration or an affidavit required under this Act or the regulations may be created or provided in an electronic document if

  • (a) the person who makes the statutory declaration or affidavit signs it with his or her secure electronic signature;

  • (b) the authorized person before whom the statutory declaration or affidavit is made signs it with his or her secure electronic signature; and

  • (c) the requirements of sections 361.3 to 361.5 are complied with.

• Marginal note:Definitions

  (2) For the purposes of this section, “electronic document” and “secure electronic signature” have the same meaning as in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.

• Marginal note:Clarification

  (3) For the purpose of complying with paragraph (1)(c), the references to an “electronic document” in sections 361.3 to 361.5 are to be read as references to an “electronic document” as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.

Marginal note:Signatures

361.7 A requirement under this Act or the regulations for a signature or for a document to be executed, except with respect to a statutory declaration or an affidavit, is satisfied if, in relation to an electronic document, the prescribed requirements pertaining to this section, if any, are met and if the signature results from the application by a person of a technology or a process that permits the following to be proven:

• (a) the signature resulting from the use by a person of the technology or process is unique to the person;

• (b) the technology or process is used by a person to incorporate, attach or associate the person’s signature to the electronic document; and

• (c) the technology or process can be used to identify the person using the technology or process.

• Marginal note:Retours

  (4) La coopérative n’est pas tenue d’envoyer les avis ou documents visés au paragraphe (1) qui lui sont retournés deux fois de suite, sauf si elle est avisée par écrit de la nouvelle adresse du membre ou du détenteur de parts de placement introuvable.

Marginal note:Waiver of notice

364. When a notice or document is required by this Act or the regulations to be sent, the sending of the notice or document may be waived or the time for the notice or document may be waived or abridged at any time with the consent in writing of the person who is entitled to it.

• Marginal note:Authority to sign notices

  (3) The notices referred to in subsections 30(2) and (4), 81(1) and 91(1), and the annual return referred to in subsection 374(1), may be signed by any individual who has the relevant knowledge of the cooperative and who is authorized to do so by the directors, or, in the case of the notice referred to in subsection 81(1), the incorporators.

• Marginal note:Execution of documents

  (4) Any articles, notice, resolution, requisition, statement or other document required or permitted to be executed or signed by more than one individual for the purposes of this Act may be executed or signed in several documents of like form, each of which is executed or signed by one or more of the individuals. The documents, when duly executed or signed by all individuals required or permitted, as the case may be, to do so, shall be deemed to constitute one document for the purposes of this Act.

Marginal note:Fee to be paid before service performed

372.1 The fee in respect of the filing, examination, or copying of any document or in respect of any action that the Director is required or authorized to take must be paid to the Director on the filing, examination, or copying or before the Director takes the action in respect of which the fee is payable.

Marginal note:Certificate

• 375. (1) The Director may provide any person with a certificate that a cooperative

  • (a) has sent to the Director a document required to be sent;

  • (b) has paid all required fees; or

  • (c) exists as of a certain date.

• Marginal note:Director may refuse to issue certificate of existence

  (2) For greater certainty, the Director may refuse to issue a certificate under paragraph (1)(c) if the Director has knowledge that the cooperative is in default of sending a document required to be sent or is in default of paying a required fee.

Marginal note:Alteration

376. The Director may alter a notice or document, other than an affidavit or statutory declaration, if authorized to do so by the person who sent the document or by their representative.

Marginal note:Corrections at request of Director

• 376.1 (1) If there is an error in articles, a notice, a certificate or other document, the directors, members or shareholders must, on the request of the Director, pass the resolutions and send to the Director the documents required to comply with this Act, and take any other steps that the Director may reasonably require so that the Director may correct the document.

• Marginal note:No prejudice

  (2) Before proceeding under subsection (1), the Director must be satisfied that the correction would not prejudice any of the members, shareholders or creditors of the cooperative.

• Marginal note:Corrections at the request of the cooperative

  (3) The Director may, at the request of the cooperative or of any other interested person, accept a correction to any of the documents referred to in subsection (1) if

  • (a) the correction is approved by the directors of the cooperative, unless the error is obvious or was made by the Director; and

  • (b) the Director is satisfied that the correction would not prejudice any of the members, shareholders or creditors of the cooperative and that the correction reflects the original intention of the cooperative or the incorporators, as the case may be.

• Marginal note:Application to court

  (4) If, in the view of the Director, of the cooperative or of any interested person who wishes a correction, a correction to any of the documents referred to in subsection (1) would prejudice any of the members, shareholders or creditors of a cooperative, the Director, the cooperative or the person, as the case may be, may apply to the court for an order that the document be corrected and for an order determining the rights of the members, shareholders or creditors.

• Marginal note:Notice to Director

  (5) An applicant under subsection (4) must give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.

• Marginal note:Director may require surrender of document

  (6) The Director may demand the surrender of the original document, and may issue a corrected certificate or file the corrected articles, notice or other document.

• Marginal note:Date of corrected document

  (7) A corrected document must bear the date of the document it replaces unless

  • (a) the correction is made with respect to the date of the document, in which case the document must bear the corrected date; or

  • (b) the court decides otherwise.

• Marginal note:Notice

  (8) If a corrected certificate materially amends the terms of the original certificate, the Director must without delay give notice of the correction in a publication generally available to the public.

Marginal note:Cancellation of articles by Director

• 376.2 (1) In the prescribed circumstances, the Director may cancel the articles and related certificate of a cooperative.

• Marginal note:No prejudice

  (2) Before proceeding under subsection (1), the Director must be satisfied that the cancellation would not prejudice any of the members, shareholders or creditors of the cooperative.

• Marginal note:Request to Director to cancel articles

  (3) In the prescribed circumstances, the Director may, at the request of a cooperative or of any other interested person, cancel the articles and related certificate of the cooperative if

  • (a) the cancellation is approved by the directors of the cooperative; and

  • (b) the Director is satisfied that the cancellation would not prejudice any of the members, shareholders or creditors of the cooperative and that the cancellation reflects the original intention of the cooperative or the incorporators, as the case may be.

• Marginal note:Application to court

  (4) If, in the view of the Director, of the cooperative or of any interested person who wishes a cancellation, a cancellation of articles and a related certificate would prejudice any of the members, shareholders or creditors of a cooperative, the Director, the cooperative or the person, as the case may be, may apply to the court for an order that the articles and certificate be cancelled and for an order determining the rights of the members, shareholders or creditors.

• Marginal note:Notice to Director

  (5) An applicant under subsection (4) must give the Director notice of the application, and the Director is entitled to appear and to be heard in person or by counsel.

• Marginal note:Return of certificate

  (6) The Director may demand the surrender of a cancelled certificate.

Marginal note:Inspection

• 377. (1) A person who has paid the required fee is entitled during usual business hours to examine a document required by this Act or the regulations to be sent to the Director, except a report sent under subsection 330(2), and to make copies of it or take extracts from it.

• Marginal note:Retention of records

  (3) The Director is not required to produce any document, other than a certificate and attached articles or statement filed under section 373, after the expiration of the prescribed period.

• (n) subsections 124(1) to (6) (indemnification of directors and insurance for director’s liability);

Marginal note:Canada Business Corporations Act

• 27. (1) The definitions “beneficial ownership”, “debt obligation”, “redeemable share”, “security”, “security interest” and “special resolution” in subsection 2(1) and sections 23 to 26, 34, 36 to 38 (except subsection 38(6)), 42, 43, 50, 172 and 257 of the Canada Business Corporations Act apply, with such modifications as the circumstances require, in respect of the Corporation as if the references therein to articles were references to the by-laws of the Corporation.

• Marginal note:Assets of Corporation

  (2) For the purposes of applying subsections 34(2), 36(2) and 38(3) and section 42 of the Canada Business Corporations Act in respect of the Corporation, the assets held by the Corporation as an agent of Her Majesty in right of Canada shall be deemed to be assets of the Corporation.