An Act to amend the Canada Business Corporations Act and the Canada Cooperatives Act and to amend other Acts in consequence (S.C. 2001, c. 14)
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Assented to 2001-06-14
R.S., c. C-44; 1994, c. 24, s. 1(F)CANADA BUSINESS CORPORATIONS ACT
103. (1) Paragraph 210(3)(b) of the French version of the Act is replaced by the following:
b) d’autre part, la société ait effectué une répartition de biens et un règlement de dettes avant d’envoyer les clauses de dissolution au directeur conformément au paragraphe (4).
(2) Subsection 210(4) of the Act is replaced by the following:
Marginal note:Articles of dissolution
(4) Articles of dissolution in the form that the Director fixes shall be sent to the Director.
104. (1) Subsection 211(4) of the Act is replaced by the following:
Marginal note:Statement of intent to dissolve
(4) A statement of intent to dissolve in the form that the Director fixes shall be sent to the Director.
(2) Paragraph 211(7)(b) of the Act is replaced by the following:
(b) without delay take reasonable steps to give notice of it in each province in Canada where the corporation was carrying on business at the time it sent the statement of intent to dissolve to the Director;
(3) Subsection 211(10) of the Act is replaced by the following:
Marginal note:Revocation
(10) At any time after issue of a certificate of intent to dissolve and before issue of a certificate of dissolution, a certificate of intent to dissolve may be revoked by sending to the Director a statement of revocation of intent to dissolve in the form that the Director fixes, if such revocation is approved in the same manner as the resolution under subsection (3).
(4) Subsection 211(14) of the Act is replaced by the following:
Marginal note:Articles of dissolution
(14) Articles of dissolution in the form that the Director fixes shall be sent to the Director.
Marginal note:1994, c. 24, s. 25
105. (1) Subsection 212(1) of the Act is replaced by the following:
Marginal note:Dissolution by Director
212. (1) Subject to subsections (2) and (3), the Director may
(a) dissolve a corporation by issuing a certificate of dissolution under this section if the corporation
(i) has not commenced business within three years after the date shown in its certificate of incorporation,
(ii) has not carried on its business for three consecutive years,
(iii) is in default for a period of one year in sending to the Director any fee, notice or document required by this Act, or
(iv) does not have any directors or is in the situation described in subsection 109(4); or
(b) apply to a court for an order dissolving the corporation, in which case section 217 applies.
Marginal note:1994, c. 24, s. 25
(2) Paragraph 212(2)(b) of the Act is replaced by the following:
(b) published notice of that decision in a publication generally available to the public.
(3) Subsection 212(3) of the Act is replaced by the following:
Marginal note:Certificate of dissolution
(3) Unless cause to the contrary has been shown or an order has been made by a court under section 246, the Director may, after the expiration of the period referred to in subsection (2), issue a certificate of dissolution in the form that the Director fixes.
Marginal note:Exception — non-payment of incorporation fee
(3.1) Despite anything in this section, the Director may dissolve a corporation by issuing a certificate of dissolution if the required fee for the issuance of a certificate of incorporation has not been paid.
106. Subsection 213(4) of the Act is replaced by the following:
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.
107. (1) The portion of paragraph 214(1)(a) of the French version of the Act before subparagraph (i) is replaced by the following:
a) il constate qu’elle abuse des droits de tout détenteur de valeurs mobilières, créancier, administrateur ou dirigeant, ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts :
(2) Subparagraph 214(1)(a)(ii) of the French version of the Act is replaced by the following:
(ii) soit par la façon dont elle conduit ou a conduit ses activités commerciales ou ses affaires internes,
108. Paragraph 217(b) of the Act is replaced by the following:
(b) an order appointing a liquidator, with or without security, fixing the liquidator’s remuneration and replacing a liquidator;
109. The portion of paragraph 221(b) of the Act before subparagraph (i) is replaced by the following:
(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
110. Subsection 222(2) of the Act is replaced by the following:
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.
111. Subsection 223(4) of the English version of the Act is replaced by the following:
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.
112. Subsection 226(1) of the Act is replaced by the following:
Definition of “shareholder”
226. (1) In this section, “shareholder” includes the heirs and personal representatives of a shareholder.
113. (1) Subsections 229(1) and (2) of the French version of the Act are replaced by the following:
Marginal note:Enquête
229. (1) Tout détenteur de valeurs mobilières ou le directeur peut demander au tribunal du ressort du siège social de la société, ex parte ou après avoir donné l’avis que celui-ci peut exiger, d’ordonner la tenue d’une enquête sur la société et sur toute société du même groupe.
Marginal note:Motifs
(2) Le tribunal peut ordonner la tenue de l’enquête demandée conformément au paragraphe (1), s’il lui paraît établi, selon le cas :
a) que la société ou des sociétés de son groupe exercent ou ont exercé leurs activités commerciales avec une intention de fraude;
b) que la société ou toute autre société de son groupe, soit par la façon dont elle conduit ou a conduit ses activités commerciales ou ses affaires internes, soit par la façon dont ses administrateurs exercent ou ont exercé leurs pouvoirs, abuse des droits des détenteurs de valeurs mobilières ou se montre injuste à leur égard en leur portant préjudice ou en ne tenant pas compte de leurs intérêts;
c) que la constitution ou la dissolution soit de la société soit des sociétés de son groupe répond à un but frauduleux ou illégal;
d) que des personnes ont commis des actes frauduleux ou malhonnêtes en participant à la constitution soit de la société soit de sociétés du même groupe, ou dans la conduite de leurs activités commerciales ou de leurs affaires internes.
(2) Subsection 229(4) of the French version of the Act is replaced by the following:
Marginal note:Pas de cautionnement pour frais
(4) La personne qui intente une action en vertu du présent article n’est pas tenue de fournir de cautionnement pour les frais.
114. (1) The portion of subsection 235(1) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Renseignements concernant la propriété et le contrôle des valeurs mobilières
235. (1) S’il est convaincu, pour l’application des parties XI, XIII ou XVII ou de tout règlement d’application de l’article 174, de la nécessité d’enquêter sur la propriété ou le contrôle de valeurs mobilières d’une société ou de sociétés de son groupe, le directeur peut demander à toute personne dont il a de bonnes raisons de croire qu’elle détient ou a détenu un droit sur ces valeurs, ou agit ou a agi pour le compte de telle personne de lui fournir, ou à la personne qu’il désigne :
(2) The portion of subsection 235(3) of the Act before paragraph (a) is replaced by the following:
Marginal note:Publication
(3) The Director shall publish in a publication generally available to the public the particulars of information obtained by the Director under this section, if the particulars
115. The Act is amended by adding the following after section 237:
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).
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