PART 12Security Certificates, Registers and Transfers (continued)
Marginal note:Effect of endorsement without delivery
226 An endorsement of a security does not constitute a transfer until delivery of the security on which it appears or, if the endorsement is on a separate document, until delivery of both the security and the document.
Marginal note:Endorsement in bearer form
227 An endorsement of a security in bearer form may give notice of an adverse claim under section 212 but does not otherwise affect any of the holder’s rights.
Marginal note:Effect of unauthorized endorsement
228 (1) The owner of a security may assert the ineffectiveness of an endorsement against the issuer or a purchaser, other than a good faith purchaser who has in good faith received a new, re-issued or re-registered security on registration of transfer, unless the owner
(a) has ratified an unauthorized endorsement of the security; or
(b) is otherwise precluded from impugning the effectiveness of an unauthorized endorsement.
Marginal note:Liability of issuer
(2) An issuer who registers the transfer of a security on an unauthorized endorsement is liable for improper registration.
Marginal note:Warranties of guarantor of signature
229 (1) A person who guarantees the signature of an endorser of a security warrants that, at the time of signing, the signer was an appropriate person to endorse and the signature was genuine.
Marginal note:Limitation of liability
(2) A person who guarantees the signature of an endorser does not otherwise warrant the rightfulness of the transfer to which the signature relates.
Marginal note:Warranties of guarantor of endorsement
(3) A person who guarantees the endorsement of a security warrants both the signature and the rightfulness, in all respects, of the transfer to which the signature relates, but an issuer may not require a guarantee of endorsement as a condition to registration of transfer.
Marginal note:Extent of liability
(4) The guarantees referred to in subsections (1) to (3) are made to any person who, relying on the guarantee, takes or deals with the security, and the guarantor is liable to the person for any loss resulting from breach of warranty.
Marginal note:Presumption of delivery
230 Delivery of a security to a purchaser occurs when
(a) the purchaser or a person designated by the purchaser acquires possession of it;
(b) the purchaser’s securities broker acquires possession of a security specially endorsed to or issued in the name of the purchaser;
(c) the purchaser’s securities broker sends the purchaser confirmation of the purchase and the broker in the broker’s records identifies a specific security as belonging to the purchaser; or
(d) in respect of an identified security to be delivered while still in the possession of a third person, that person acknowledges that it is held for the purchaser.
Marginal note:Presumption of ownership
231 (1) A purchaser is the owner of a security held for the purchaser by a securities broker, but a purchaser is not a holder except in the cases described in paragraphs 230(b) and (c).
Marginal note:Ownership of part of fungible bulk
(2) If a security is part of a fungible bulk, a purchaser of the security is the owner of the proportionate interest or right in the fungible bulk.
Marginal note:Notice to securities broker of adverse claim
(3) Notice of an adverse claim received by a securities broker or by a purchaser after the broker takes delivery as a holder for value is not effective against the broker or the purchaser, except that, as between the broker and the purchaser, the purchaser may demand delivery of an equivalent security in respect of which no notice of an adverse claim has been received.
- 1998, c. 1, s. 231
- 2011, c. 21, s. 96
Marginal note:Delivery of security
232 (1) Unless agreed otherwise, if a sale of a security is made on a stock exchange or otherwise through securities brokers,
(a) the selling customer fulfils their duty to deliver when the customer delivers the security to the selling securities broker or to a person designated by the selling securities broker or when they cause an acknowledgement to be made to the selling securities broker; and
(b) the selling securities broker, including a correspondence broker, acting for a selling customer fulfils their duty to deliver by delivering the security or a like security to the buying securities broker or to a person designated by the buying securities broker or by affecting clearance of the sale in accordance with the rules of the exchange on which the transaction took place.
Marginal note:Duty to deliver
(2) Except as provided otherwise in this section and unless agreed otherwise, a transferor’s duty to deliver a security under a contract of purchase is not fulfilled until the transferor delivers the security in negotiable form to the purchaser or to a person designated by the purchaser, or causes an acknowledgement to be made to the purchaser that the security is held for the purchaser.
Marginal note:Delivery to securities broker
(3) A sale to a securities broker purchasing for the securities broker’s own account is subject to subsection (2) and not subsection (1), unless the sale is made on a stock exchange.
Marginal note:Right to reclaim possession
233 (1) A person against whom the transfer of a security is wrongful may, against anyone except a good faith purchaser,
(a) reclaim possession of the security or obtain possession of a new security evidencing all or part of the same rights; or
(b) claim damages.
Marginal note:Recovery when unauthorized endorsement
(2) If the transfer of a security is wrongful by reason of an unauthorized endorsement, the owner may reclaim possession of the security or a new security even from a good faith purchaser if the ineffectiveness of the purported endorsement is asserted against the purchaser under section 228.
Marginal note:Right to requisites for registration
234 (1) Unless agreed otherwise, a transferor must, on demand, supply a purchaser with proof of the transferor’s authority to transfer a security or with any other requisite that is necessary to obtain registration of the transfer of a security, but if the transfer is not for value, it is not necessary for the transferor to provide authority to transfer unless the purchaser pays the reasonable and necessary costs of the proof and transfer.
Marginal note:Rescission of transfer
(2) If a transferor fails to comply with a demand under subsection (1) within a reasonable time, the purchaser may reject or rescind the transfer.
Marginal note:Seizure of security
235 No seizure of a security or other interest or right evidenced by the security is effective until the person making the seizure obtains possession of the security.
- 1998, c. 1, s. 235
- 2011, c. 21, s. 97
Marginal note:No liability for acts in good faith
236 An agent or mandatary, or a bailee or depositary, who in good faith has received securities and sold, pledged or delivered them according to the instructions of the principal or mandator is not in breach of a fiduciary duty or otherwise liable even though they have no right to dispose of the securities.
- 1998, c. 1, s. 236
- 2011, c. 21, s. 97
Marginal note:Duty to register transfer
237 (1) If a security in registered form is presented for transfer, the issuer must register the transfer if
(a) the security is endorsed by an appropriate person;
(b) reasonable assurance is given that the endorsement is genuine and effective;
(c) the issuer has no duty to inquire into adverse claims or has discharged that duty;
(d) all applicable laws relating to the collection of taxes have been complied with;
(e) the transfer is rightful or is to a good faith purchaser; and
(f) any transfer fee referred to in section 180 has been paid.
Marginal note:Liability for delay
(2) An issuer who has a duty to register a transfer of a security is liable to the person presenting it for registration for any loss resulting from an unreasonable delay in registration or from the failure or refusal to register the transfer.
Marginal note:Assurance of endorsement
238 (1) An issuer may require an assurance that each necessary endorsement on a security is genuine and effective by requiring a guarantee of the signature of the person endorsing the security and by requiring
(a) if the endorsement is by an agent or mandatary, reasonable assurance of authority to sign;
(b) if the endorsement is by a fiduciary, evidence of appointment or incumbency;
(c) if there is more than one fiduciary, reasonable assurance that all who are required to sign have done so; and
(d) in any other case, assurance that corresponds as closely as is feasible to the cases set out in paragraphs (a) to (c).
Marginal note:Sufficiency of guarantee
(2) For the purpose of subsection (1), a guarantee of the signature of a person is sufficient if it is signed by or on behalf of a person whom the issuer believes, on reasonable grounds, to be a responsible person.
(3) An issuer may adopt reasonable standards to determine responsible persons for the purpose of subsection (2).
Marginal note:Sufficiency of evidence of appointment or incumbency
(4) For the purpose of paragraph (1)(b), the following constitute sufficient evidence of appointment or incumbency of a fiduciary:
(a) in the case of a fiduciary of a deceased security holder’s estate or succession, a certified copy of the document referred to in paragraph 195(1)(c) and dated not earlier than sixty days before the day a security is presented for transfer; or
(b) in the case of any other fiduciary, a copy of a document showing the appointment or other evidence believed by the issuer to be appropriate.
(5) An issuer may adopt reasonable standards with respect to evidence referred to in paragraph (4)(b).
Marginal note:No notice to issuer
(6) An issuer is deemed not to have notice of the content of a document referred to in subsection (4) that is obtained by the issuer except to the extent that the contents relate directly to appointment or incumbency.
Marginal note:Notice from additional documentation
239 If an issuer, in relation to a transfer, demands assurance other than an assurance specified in subsection 238(1) and obtains a copy of a will, trust or partnership agreement or a by-law or similar document, the issuer is deemed to have notice of all matters contained in the document that affect the transfer.
Marginal note:Limited duty of inquiry
240 (1) An issuer to whom a security is presented for registration has a duty to inquire into adverse claims if the issuer
(a) receives written notice of an adverse claim at a time and in a manner that provide the issuer with a reasonable opportunity to act on it before the issue of a new, re-issued or re-registered security and the notice discloses the name and address of the claimant, the registered owner and the issue of which the security is a part; or
(b) is deemed to have notice of an adverse claim from a document that it obtained under section 239.
Marginal note:Discharge of duty
(2) An issuer may discharge a duty of inquiry by any reasonable means, including notifying an adverse claimant by registered mail sent to the address provided by the adverse claimant or, if no such address has been provided, to the adverse claimant’s residence or regular place of business, that a security has been presented for registration of transfer by a named person and that the transfer will be registered unless, no later than thirty days after the date of sending the notice, the issuer
(a) is served with a restraining order or other order of a court; or
(b) is provided with an indemnity bond sufficient in the issuer’s judgement to protect the issuer and any transfer agent or other agent or mandatary of the issuer from any loss that may be incurred by any of them as a result of complying with the adverse claim.
Marginal note:Inquiry into adverse claim
241 (1) Unless an issuer is deemed to have notice of an adverse claim from a document that is obtained under section 239 or has received notice of an adverse claim under subsection 240(1), if a security presented for registration is endorsed by the appropriate person, the issuer has no duty to inquire into adverse claims and, in particular,
(a) an issuer registering a security in the name of a person who is a fiduciary or who is described as a fiduciary is not bound to inquire into the existence, extent or correct description of the fiduciary relationship and the issuer may then assume without inquiry that the newly registered owner continues to be the fiduciary until the issuer receives written notice that the fiduciary is no longer acting as such with respect to the particular security;
(b) an issuer registering a transfer on an endorsement by a fiduciary has no duty to inquire into whether the transfer is made in compliance with the document or with the law of the jurisdiction governing the fiduciary relationship; and
(c) an issuer is deemed not to have notice of the contents of a court record or a registered document even if the record or document is in the issuer’s possession and the transfer is made on the endorsement of a fiduciary to the fiduciary specifically or to the fiduciary’s nominee.
Marginal note:Duration of notice of adverse claim
242 A written notice of adverse claim received by an issuer is effective for twelve months after the day it was received unless the notice is renewed in writing.
Marginal note:Limitation on issuer’s liability
243 (1) Except as provided otherwise in any applicable law relating to the collection of taxes, an issuer is not liable to the owner or any other person who incurs a loss as a result of the registration of a transfer of a security if
(a) the necessary endorsements were on or with the security; and
(b) the issuer had no duty to inquire into adverse claims or had discharged that duty.
Marginal note:Duty of issuer on default
(2) If an issuer has registered a transfer of a security to a person not entitled to it, the issuer must on demand deliver a like security to the owner unless
(a) the issuer is not liable by virtue of subsection (1);
(b) the owner is precluded by subsection 244(1) from asserting a claim; or
(c) the delivery would result in an overissue to which section 196 applies.
Marginal note:Lost or stolen security
244 (1) The owner of a security who fails to notify the issuer of an adverse claim, in writing, within a reasonable time after the owner knows of a loss, apparent destruction or wrongful taking of the security is precluded from asserting against the issuer a claim to a new security if the issuer has registered a transfer of the security.
Marginal note:Duty to issue new security
(2) If the owner of a security claims that the security has been lost, destroyed or wrongfully taken, the issuer shall issue a new security in place of the original security if the owner
(a) so requests before the issuer has notice that the security has been acquired by a good faith purchaser;
(b) provides the issuer with a sufficient indemnity bond; and
(c) satisfies any other reasonable requirements imposed by the issuer.
Marginal note:Duty to register transfer
(3) If, after the issue of a new security under subsection (2), a good faith purchaser of the original security presents the original security for registration of transfer, the issuer shall register the transfer unless registration would result in an overissue to which section 196 applies.
Marginal note:Right of issuer to recover
(4) In addition to the rights that an issuer has by reason of an indemnity bond, the issuer may recover the new security issued under subsection (2) from the person to whom it was issued or any person taking under that person other than a good faith purchaser.
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