Bank Act (S.C. 1991, c. 46)

Marginal note:Authenticating agent’s duty

134 An authenticating trustee, registrar, transfer agent or other agent of an issuer has, in respect of the issue, registration of transfer and cancellation of a security of the issuer,

• (a) a duty to the issuer to exercise good faith and reasonable diligence; and

• (b) the same obligations to the holder or owner of a security and the same rights, privileges and immunities as the issuer.

Marginal note:Notice to agent

135 Notice to an authenticating trustee, registrar, transfer agent or other agent of an issuer is notice to the issuer in respect of the functions performed by the agent.

PART VICorporate Governance

Shareholders and Members

Marginal note:Place of meetings

• 136 (1) Meetings of shareholders or members of a bank are to be held at the place within Canada provided for in the by-laws of the bank or, in the absence of any such provision, at the place within Canada that the directors determine.

• Marginal note:Participation by electronic means

  (2) Unless the by-laws provide otherwise, any person who is entitled to attend a meeting of shareholders or members may participate in the meeting 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 bank makes one available. A person who is participating in a meeting by one of those means is deemed for the purposes of this Act to be present at the meeting.

• Marginal note:Regulations

  (3) The Governor in Council may make regulations respecting 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.

Marginal note:Calling meetings

• 137 (1) The directors of a bank

  • (a) must, after the meeting called under subsection 46(1) or section 47.02, call the first annual meeting of shareholders or members, as the case may be, of the bank, which meeting must be held not later than six months after the end of the first financial year of the bank, and subsequently call an annual meeting of shareholders or members, as the case may be, which meeting must be held not later than six months after the end of each financial year; and

  • (b) may at any time call a special meeting of shareholders or members.

• Marginal note:Order to delay calling annual meeting

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

• Marginal note:Obligation to notify Superintendent

  (3) The bank shall give notice of the application to the Superintendent before any hearing concerning the application and shall provide the Superintendent with a copy of any order that is issued.

• Marginal note:Superintendent’s right to appear

  (4) The Superintendent is entitled to appear and be heard in person or by counsel at any hearing concerning the application.

• Marginal note:Authority to fix record date

  (5) The directors may in advance fix a record date, that is within the prescribed period, for the determination of shareholders or members for any purpose, including for a determination of which shareholders or members are entitled to

  • (a) receive payment of a dividend or a patronage allocation;

  • (b) participate in a liquidation distribution;

  • (c) receive notice of a meeting of shareholders or members; or

  • (d) vote at a meeting of shareholders or members.

• Marginal note:Determination of record date

  (6) If no record date is fixed,

  • (a) the record date for the determination of shareholders or members who are entitled to receive notice of a meeting is

    • (i) at the close of business on the day immediately preceding the day on which the notice is given, or

    • (ii) if no notice is given, the day on which the meeting is held; and

  • (b) the record date for the determination of shareholders or members for any other purpose, other than to establish a right to vote, is at the close of business on the day on which the directors pass a resolution in respect of that purpose.

• Marginal note:Notice of record date

  (7) If a record date is fixed and unless notice of the record date is waived in writing by every holder of a share of the class or series affected whose name is set out in the securities register at the close of business on the day on which the directors fix the record date, notice of the record date shall be given within the prescribed period by

  • (a) advertisement in a newspaper in general circulation in the place where the bank’s head office is situated and in each place in Canada where the bank has a transfer agent or where a transfer of its shares may be recorded; and

  • (b) written notice to each stock exchange in Canada on which the bank’s shares are listed for trading.

Marginal note:Notice of meeting

• 138 (1) Notice of the time and place of a meeting of shareholders or members of a bank must be sent within the prescribed period to

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

  • (b) each director;

  • (c) the auditor or auditors of the bank; and

  • (d) the Superintendent.

• Marginal note:Exception

  (1.01) In the case of a bank that is not a federal credit union and that is not a distributing bank, notice may be sent within any shorter period specified in its by-laws.

• Marginal note:Number of eligible votes

  (1.1) A bank with equity of twelve billion dollars or more that is not a federal credit union must set out in the notice of a meeting the number of eligible votes, as defined under subsection 156.09(1), that may be cast at the meeting as of the record date for determining shareholders entitled to receive the notice of meeting or, if there are to be separate votes of shareholders at the meeting, the number of eligible votes, as defined in that subsection, in respect of each separate vote to be held at the meeting.

• Marginal note:Publication in newspaper

  (2) In addition to the notice required under subsection (1), where any class of shares of a bank is publicly traded on a recognized stock exchange in Canada, notice of the time and place of a meeting of shareholders shall be published once a week for at least four consecutive weeks before the date of the meeting in a newspaper in general circulation in the place where the head office of the bank is situated and in each place in Canada where the bank has a transfer agent or where a transfer of the bank’s shares may be recorded.

Marginal note:Notice not required

• 139 (1) A notice of a meeting is not required to be sent to shareholders or members who are not registered on the records of the bank or the bank’s transfer agent on the record date fixed under paragraph 137(5)(c) or determined under paragraph 137(6)(a).

• Marginal note:Effect of default

  (2) Failure to receive a notice of a meeting does not deprive a shareholder or member of the right to vote at the meeting.

Marginal note:Notice of adjourned meeting

• 140 (1) If a meeting is adjourned for less than 30 days, it is not necessary, unless the by-laws otherwise provide, to give notice of the adjourned meeting, other than by announcement at the earliest meeting that is adjourned.

• Marginal note:Notice if adjournment is longer

  (2) If a meeting is adjourned by one or more adjournments for a total of 30 days or more, notice of the continuation of the meeting must be given as for an original meeting but, unless the meeting is adjourned by one or more adjournments for a total of more than 90 days, subsection 156.04(1) does not apply.

Marginal note:Special business

• 141 (1) All matters dealt with at a special meeting of shareholders or members and all matters dealt with at an annual meeting, except consideration of the financial statements, report of the auditor or auditors, election of directors, remuneration of directors and reappointment of the incumbent auditor or auditors, are deemed to be special business.

• Marginal note:Notice of special business

  (2) Notice of a meeting of shareholders or members at which special business is to be transacted must

  • (a) state the nature of the special business in sufficient detail to permit a shareholder or member to form a reasoned judgment in respect of that special business; and

  • (b) contain the text of any special resolution to be submitted to the meeting.

Marginal note:Nominations for directors

• 141.1 (1) If shareholders of a federal credit union are entitled to elect one or more directors,

  • (a) a nomination for the election of a director may be made only by one or more registered holders or beneficial owners of shares representing in the aggregate not less than 5 per cent of the shares of the federal credit union or 5 per cent of the shares of a class of its shares entitled to vote at the meeting at which the election is to take place; and

  • (b) a notice of a meeting of shareholders must include any nomination made in accordance with paragraph (a) for the election of a director.

• Marginal note:Exception

  (2) Paragraph (1)(b) does not apply if the nomination is submitted to the federal credit union at least the prescribed number of days before the anniversary date of the previous annual meeting.

Marginal note:Waiver of notice

• 142 (1) A shareholder, a member and any other person entitled to attend a meeting may in any manner waive notice of the meeting.

• Marginal note:Attendance is a waiver

  (2) Attendance at a meeting of shareholders or members is a waiver of notice of the meeting, except when a person attends the meeting for the express purpose of objecting to the transaction of any business on the grounds that the meeting is not lawfully called.

Marginal note:Proposals

• 143 (1) Subject to subsections (1.1) and (1.2), a registered holder or beneficial owner of shares of a bank that is not a federal credit union that may be voted at an annual meeting of shareholders may

  • (a) submit to the bank notice of any matter that they propose to raise at the meeting (in this section and section 144 referred to as a “proposal”); and

  • (b) discuss at the meeting any matter in respect of which they would have been entitled to submit a proposal.

• Marginal note:Eligibility to submit proposal

  (1.1) To be eligible to submit a proposal a person shall

  • (a) for at least the prescribed period be the registered holder or beneficial owner of at least the prescribed number of the bank’s outstanding shares; or

  • (b) have the support of persons who, in the aggregate and including or not including the person who submits the proposal, have for at least the prescribed period been the registered holders or beneficial owners of at least the prescribed number of the bank’s outstanding shares.

• Marginal note:Information to be provided

  (1.2) A proposal is to be accompanied by the following information:

  • (a) the name and address of the person submitting the proposal and the names and addresses of their supporters, if any; and

  • (b) the number of shares held or owned by the person and their supporters, if any, and the date that the shares were acquired.

• Marginal note:Information not part of proposal

  (1.3) The information provided under subsection (1.2) does not form part of a proposal or of the supporting statement referred to in subsection (3) and is not to be included for the purpose of the prescribed maximum number of words referred to in subsection (3).

• Marginal note:Proof may be required

  (1.4) If the bank requests within the prescribed period that a person provide proof that they are eligible to submit a proposal, the person shall within the prescribed period provide proof that they meet the requirements of subsection (1.1).

• Marginal note:Management proxy

  (2) A bank that solicits proxies shall, in the management proxy circular required by subsection 156.05(1), set out any proposal of a shareholder submitted for consideration at a meeting of shareholders or attach the proposal to the management proxy circular.

• Marginal note:Supporting statement

  (3) At the request of the person who submits a proposal, the bank shall set out in the management proxy circular or attach to it the person’s statement in support of the proposal and their name and address. The statement and proposal together are not to exceed the prescribed maximum number of words.

• Marginal note:Nomination of directors

  (4) A proposal may include nominations for the election of directors if it is signed by one or more registered holders or beneficial owners of shares representing in the aggregate not less than 5% of the shares of the bank or 5% of the shares of a class of its shares entitled to vote at the meeting at which the proposal is to be presented.

• Marginal note:Exemption

  (5) A bank is not required to comply with subsections (2) and (3) if

  • (a) the proposal is not submitted to the bank at least the prescribed number of days before the anniversary date of the notice of meeting that was sent to shareholders in respect of the previous annual meeting of shareholders;

  • (b) it clearly appears that the primary purpose of the proposal is to enforce a personal claim or redress a personal griev­ance against the bank or its directors, officers or security holders;

  • (b.1) it clearly appears that the proposal does not relate in a significant way to the business or affairs of the bank;

  • (c) the person submitting the proposal failed within the prescribed period before the bank receives their proposal to present, in person or by proxy, at a meeting of shareholders a proposal that at their request had been set out in or attached to a management proxy circular;

  • (d) substantially the same proposal was set out in or attached to a management proxy circular or dissident’s proxy circular relating to, and presented to shareholders at, a meeting of shareholders held within the prescribed period before the receipt of the proposal and did not receive the prescribed minimum amount of support at the meeting; or

  • (e) the rights conferred by subsections (1) to (4) are being abused to secure publicity.

• Marginal note:Bank may refuse to include proposal

  (5.1) If a person who submits a proposal fails to continue to hold or own shares in accordance with paragraph (1.1)(a) or, as the case may be, does not continue to have the support of persons who are in the aggregate the registered holders or beneficial owners of the prescribed number of shares in accordance with paragraph (1.1)(b) until the end of the meeting, the bank is not required to set out any proposal submitted by that person in or attach it to a management proxy circular for any meeting held within the prescribed period after the day of the meeting.

• Marginal note:Immunity for proposal and statement

  (6) No bank or person acting on behalf of a bank incurs any liability by reason only of circulating a proposal or statement in compliance with subsections (2) and (3).